New EEOC and OFCCP Guidance Highlight DOL Focus on Gender Discrimination

by Stinson Leonard Street
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In connection with last week's United State of Women Summit, the Office of Federal Contract Compliance Programs (OFCCP) and the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on sex discrimination. The OFCCP's new guidance came in the form of a final rule modernizing its sex discrimination regulations. The prior regulations dated back to 1970. While some updates merely brought OFCCP regulations in line with existing law, other developments require attention from federal contractors. The EEOC's updated guidance came in the form of new fact sheets addressing equal pay and pregnancy discrimination.

New OFCCP Rule

The OFCCP Rule updates prior OFCCP guidance to include discrimination based on pregnancy, childbirth and related medical conditions, gender identity, transgender status, sexual harassment, and sex stereotypes as part of unlawful sex discrimination. The Rule also tracks the Supreme Court's Young v. UPS decision [see Stinson Leonard Street alert Pregnancy Accommodations After Young v. UPS: What Does the Decision Really Mean For Employers?] and requires contractors to provide reasonable accommodations to pregnant workers in circumstances where contractors provide similar accommodations to other employees with limitations on their ability to work, such as individuals with disabilities or employees with work-related injuries.

Consistent with its focus on discrimination in the area of compensation, the Rule includes specific prohibitions on sex-based wage discrimination. It provides that an employee's ability to recover lost wages arises whenever a contractor pays wages that are the result of sex-based wage discrimination, not only when an alleged discriminatory decision setting wages was made. Relatedly, the Rule prohibits sex discrimination in the area of fringe benefits. This includes a prohibition on policies that, for example, give men and women different benefits with regard to parental leave or flexible scheduling.

Along with explicitly prohibiting discrimination based on gender identity and transgender status, the Rule requires contractors to take some affirmative steps regarding transgender workers. Contractors must allow employees to use bathrooms, changing rooms, showers, and similar facilities that align with the gender with which employees identify. The Rule also states the OFCCP's position that a categorical exclusion of coverage for gender dysphoria or gender transition from a health care plan is facially discriminatory because it targets employees based on gender identity or transgender status.

New EEOC Fact Sheets

The EEOC's Facts About Equal Pay and Compensation Discrimination fact sheet highlights the Equal Pay Act and the EEOC's interpretation of this law. The Equal Pay Act requires employers to pay employees in the same establishment equally for work which requires equal skill, effort, and responsibility, and is performed under similar working conditions. The EEOC's fact sheet provides brief descriptions and examples of the terms "skill," "effort," "responsibility," "working conditions," and "establishment." The fact sheet outlines some differences between the Equal Pay Act and other laws that prohibit compensation discrimination, namely, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.

The EEOC's Facts About Pregnancy Discrimination fact sheet emphasizes that employers cannot treat pregnant workers differently than other workers who may have limitations on their ability to work. The fact sheet explains that pregnant employees must be permitted to continue working as long as they can perform their jobs, and employers may not force pregnant employees who have a pregnancy-related health issue to remain on leave until the baby is born, nor may employers prohibit an employee from returning to work until a specified time after childbirth. Like the OFCCP Rule, the EEOC's fact sheet provides that pregnant workers who need accommodations to perform their jobs must be given accommodations in the same manner as any other temporarily disabled employee—such as by providing light duty, modified tasks, alternative work assignments, or leave. Employers may require pregnant employees to follow the same procedures that other employees must follow if they require accommodations (such as providing a doctor's note), but they cannot make pregnant workers follow a different or more arduous process.

Recommended Steps for Employers

In light of the OFCCP and EEOC's focus on sex discrimination issues, proactive employers should review their policies and confirm that they do not inadvertently run afoul of applicable regulations. Government contractors in particular should:

  • Assess current job titles and change any gender-based titles (e.g., foreman) to a gender-neutral alternative (e.g., foreperson).
  • Ensure that employees are able to use the bathroom, changing room, and similar facilities that align with their gender identity.
  • Review health care plans to confirm there are no categorical exclusions that the OFCCP would find to facially discriminate based on sex, sexual orientation, or gender identity (e.g., exclusions for gender dysphoria treatment).
  • Review parental leave policies to confirm they do not make sex-based distinctions.
  • Review accommodation policies to confirm that they do not deny accommodations to pregnant workers when accommodations are provided to other employees with similar limitations on ability to work (e.g., individuals with disabilities or work-related injuries).

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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