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  Civil Rights Litigation

OFCCP Issues First Updates to Sex Discrimination Guidelines Since 1970

By David Gevertz – July 5, 2016


New sex-discrimination regulations for federal government contractors and subcontractors are set to go into effect August 15, 2016. These much-needed changes are the first of their kind since 1970 for the Office of Federal Contract Compliance Programs (OFCCP). The updates to Title 41, Part 60-20 of the Code of Federal Regulations address a number of topics, including compensation discrimination, harassment, accommodations for pregnant workers, gender-identity bias, and family caregiving responsibilities. The goal of these changes is to harmonize "OFCCP's outdated regulations with current Title VII jurisprudence" and to "facilitate contractor understanding and compliance, potentially reduce contractor costs, and increase labor-market efficiency." See OFCCP's Sex Discrimination Final Rule Fact Sheet.


Along with updating general provisions and language to incorporate legal developments since 1970, the final rule also prohibits discrimination based on gender identity and transgender status, pursuant to the provisions of Executive Order 11246, as amended by Executive Order 13672. See Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (July 23, 2014). Specifically, Part 60-20.7 provides that, "Contractors must not make employment decisions on the basis of sex-based stereotypes, such as stereotypes about how males and/or females are expected to look, speak, or act." Discrimination on the Basis of Sex, 81 Fed. Reg. 39,107 (June 15, 2016) (to be codified at 41 C.F.R. pt. 60). The final rule further requires contractors to allow their employees to use restrooms, changing rooms, showers, and other similar facilities designated for use by the gender with which the workers identify.


The revisions to the guidelines also address changing norms with respect to caregiving responsibilities. Part 60-20.7 lists a number of examples of discrimination based on sex-based stereotyping, including adverse treatment of a male employee who takes leave to care for his newborn or recently adopted or foster child. Sex-based stereotyping also includes adverse treatment of a male employee for his inability to work overtime because he cares for his elderly father, which is based on the stereotype that men do not have caregiving responsibilities that affect their availability for work.


The changes also prohibit contractors from paying different compensation to similarly situated employees on the basis of sex, and mandate that contractors provide equal benefits and equal contributions for male and female employees. Contractors are further prohibited from discriminating on the basis of pregnancy, childbirth, or related medical conditions, and must provide workplace accommodations for employees who need them because of pregnancy, childbirth, or related medical conditions, pursuant to the decision of the Supreme Court in Young v. UPS, 135 S.Ct. 1338 (2015).


While the new regulations provide a great deal of guidance for federal contractors, they also significantly expand their responsibilities and obligations. It will be important for these contractors to fully understand these changes and the impact on their business and employees. For more information on these guidelines, including a copy and summary of the final rule, frequently asked questions, and a chart comparing the original and updated regulations, the Department of Labor has created a web page full of resources.


Keywords: civil rights litigation, excessive force, pretrial detention, circuit split, Fourteenth Amendment, Graham, objective, reasonable, Supreme Court


David Gevertz is a shareholder with Baker Donelson in Atlanta, Georgia.


 
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