OFCCP’s Newest Directive: Gender Identity and Sex Discrimination

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The stated purpose of the Office of Federal Contract Compliance Programs’ (OFCCP) August 19, 2014 Directive 2014-02 is to make clear that discrimination “based on sex” includes discrimination on the bases of gender identity and transgender status. Executive Order 13672, issued on July 21, 2014, included “sexual orientation” and “gender definition” prohibitions for new federal contracts and subcontracts entered into on or after the effective date of its implementing regulations; however, Directive 2014-02 deals only with the prohibition of gender identity as a form of sex discrimination for current contractors and subcontractors. Unlike Executive Order 13672, the directive does not address gender identity as a “stand-alone protected category” and does not mention protections for “sexual orientation.”

OFCCP enforces Executive Order 11246 and, according to Directive 2014-02, interprets that order’s nondiscrimination provisions in accordance with Title VII of the Civil Rights Act of 1964, as amended. Under current Title VII case law, discrimination based on gender identity and transgender status is discrimination “based on sex.” For example, in Macy v Holder, 2012 WF 1435995 (EEOC 2012), the U.S. Equal Employment Opportunity Commission found that gender identity and transgender status are part of the protected category of “sex” under Title VII.

OFCCP’s directive requires the agency to investigate and seek remedies for sex discrimination that occurs because of an applicant’s or employee’s gender identity or transgender status. OFCCP will accept and investigate complaints that allege gender identity discrimination and will attempt to remedy any findings of sex discrimination—including those involving gender identity and transgender status—during routine compliance evaluations conducted by OFCCP.

Directive 2014-02 is effective immediately and applies to all current federal contractors and subcontractors subject to the nondiscrimination provisions of Executive Order 11246. The U.S. Department of Labor’s frequently asked questions on Directive 2014—02 provide basic information on the new directive.

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