NPRM on Sex Discrimination—What Will Be Required?

Yesterday’s Advisor briefed readers on new guidelines (to be called regulations) on sex discrimination proposed by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). Today, more on the guidelines (to be called regulations) plus an interactive map indicating state laws on sexual orientation and gender identity.

What is a Notice of Proposed Rulemaking (NPRM)?

An NPRM is the government’s way of providing the public formal notice that it is proposing a new regulation or modifying an existing regulation and that it is seeking the public’s comment on the proposal. (See below for how to submit a comment—the deadline is close.)

So, this isn’t a law yet—and it often takes quite a while for this process to result in a final rule. In fact, it may never come to pass. But it certainly indicates the way the wind is blowing in federal circles.

Furthermore, if you are not a government contractor, this doesn’t apply to you directly. However, it’s not a bad idea to pay attention to these proposals, as they may over time become more generally adopted, and adherence to them tends to show good faith.

Benefits and Costs of the NPRM on Sex Discrimination

The OFCCP says that this NPRM, if adopted, would benefit 65 million employees who work for federal contractors and even more directly the more than two million women in the federal contractor workforce who are likely to become pregnant each year. [See yesterday’s Advisor for highlights of the NPRM.]

Who Benefits?

According to the OFCCP, the proposed rule would benefit federal contractors, their employees, applicants for employment, and the general public, in three ways:

• By consolidating, updating, and clearly and accurately stating the existing principles of applicable law, the proposed rule would facilitate contractor understanding and compliance. Thus, the rule may reduce contractor costs.
• By facilitating contractor compliance, the NPRM would also benefit the 65 million employees of federal contractors, male as well as female, who would be better assured of working free of unlawful sex discrimination.
• By removing outmoded and ineffective guidance from the Code of Federal Regulations and replacing it with regulations that reflect current law and workplace practices and issues, the NPRM would improve civil rights enforcement and public understanding of the law.

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What Would Contractors Have to Do Differently?

If the proposed rule were to be adopted, what would contractors have to do differently?

The proposed changes would align OFCCP’s regulations with Title VII of the Civil Rights Act of 1964, as interpreted by courts and the Equal Employment Opportunity Commission. Since most covered contractors are subject to Title VII or to similar state laws, most contractors are already subject to many of the proposed provisions.

Furthermore, most employers already provide pregnant workers who ask with job accommodations such as more frequent breaks, stools to sit on, and temporary light-duty assignments. The OFCCP estimates that employers of fewer than 10 percent of pregnant women who request accommodations are refused, so the new rule would require a change in behavior for that 10 percent of contractors. They would have to start providing the accommodations if they provide the accommodations to nonpregnant employees who are similar in their ability or inability to work.

Want to Submit a Comment?

You have just enough time to submit your comments on the NPRM by using any of the following methods:

• Federal Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Fax: 202-693-1313 (for comments of six pages or less).
• Mail: Debra A. Carr, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue, N.W., Washington, DC 20210.

All comments must be received on or before March 31, 2015.

Interactive Map of State Sexual Orientation, Gender Identity Laws

Here is a link to a handy interactive map that shows state laws relating to sexual orientation and gender identity:

http://hr.blr.com/HR-news/Discrimination/Sex-Discrimination/LGBT-employment-rights-map-state-discrimination

From discrimination to compensation to recruiting and hiring, rules and regulations are evolving every day in all areas that touch human resources. It’s the brave new world of HR! Are you prepared for changes that are unparalleled in scope and impact?

• Employees all over the world, many of whom you’ve never met in person
• Technological advances and big data
• Talent management challenges like Millennials managing Baby Boomers you once thought would have retired years ago
• Big data on everything from hiring strategies to retention predictions
• Sweeping regulatory changes in the areas of health care, immigration, and privacy that have necessitated massive changes in the way you do business
• And the new normal—doing more … with less

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