DOL Issues Updated Contractors’ Guidance Regarding Sex Discrimination

Dorsey & Whitney LLP

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has issued a long-awaited update to the rules that prohibit sex discrimination by federal contractors.  The changes take effect on August 15, 2016, and replace what the department has called “outdated and inaccurate” regulations that have been superseded by court decisions and other changes that have occurred since the regulations were written in 1970.

The changes will:

  • Clarify that sex discrimination includes adverse treatment of an employee based on gender stereotypes.
  • Clarify that men are entitled to leave for childcare on the same terms as women enjoy.
  • Confirm that covered contractors must provide workplace accommodations such as extra bathroom breaks and light-duty assignments to women affected by pregnancy, childbirth, and related medical conditions equivalent to the accommodations that contractors grant to other workers similar in their ability or inability to work, such as disabled workers or workers with occupational injuries.
  • Clarify that compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work.
  • Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.
  • Include as forms of sex discrimination both quid pro quo and hostile-environment sexual harassment.
  • Clarify that unlawful sex discrimination includes adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior.
  • Clarify that unlawful sex discrimination includes discrimination based on an individual’s gender identity.
  • Provide best practice guidance encouraging contractors to develop and implement procedures to ensure all employees feel safe and welcomed in the workplace, are treated fairly, and are not harassed because of sex.

The changes were first proposed in January 2015.  More information about the new regulations is available here.  A comparison between the prior guidelines and new regulations is available here.

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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