OFCCP Publishes Directive on Gender Identity and Sex Discrimination


Executive Summary: The Office of Federal Contract Compliance Programs (OFCCP) has published a Directive on Gender Identity and Sex Discrimination (DIR 2014-02). The Directive clarifies that agency guidance on discrimination on the basis of sex under Executive Order 11246 includes gender identity and transgender status. The Directive is available on the OFCCP web site at: http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html.

The Directive follows a statement by the Secretary of the Department of Labor (DOL) in June 2014 indicating that the agency is updating its enforcement protocols and nondiscrimination guidance to clarify that the DOL provides the full protection of the federal nondiscrimination laws that it enforces to individuals on the bases of gender identity and transgender status. The OFCCP published Directive 2014-02 to clarify its interpretation of the nondiscrimination obligations. 

EO 11246 prohibits federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, or national origin.  The OFCCP interprets the nondiscrimination obligations under EO 11246 in accordance with Title VII. Although Title VII does not specifically prohibit discrimination on the basis of gender identity or transgender status, the Directive notes that case law interpreting that statute has found that discrimination on the basis of gender identity or transgender status is sex discrimination.  The Directive also refers to the EEOC's determination in Macy v. Holder that discrimination based on transgender status or gender identity constitutes sex discrimination under Title VII.  

The Directive clarifies that it deals with discrimination on the basis of gender identity only as a form of sex discrimination.  It does not address gender identity as a stand–alone protected category, which (along with sexual orientation) is the subject of Executive Order 13672. Accordingly, when investigating allegations of discrimination based on gender identity, the OFCCP will adhere to the existing Title VII framework for proving sex discrimination.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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