Benefits and Compensation

Sex Discrimination Guidelines: ‘Outdated and Inaccurate’

Existing sex discrimination guidelines (found at 41 C.F.R. part 60-20) have not been significantly updated since 1970. Since employer policies and practices—and the workplace itself—have changed dramatically since then, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has started action to update its guidelines.

On January 28, 2015, the U.S. Department of Labor’s (DOL) OFCCP issued a Notice of Proposed Rulemaking (NPRM) that would rescind the existing Sex Discrimination Guidelines and propose provisions that address current workplace practices and issues and align contractors’ obligation with current law and legal interpretations.

Highlights of the Proposed Rule

The new rule, if adopted, would apply to government contractors. The NPRM is focused on the nature and role of women in the workplace.  The rule proposes to eliminate current provisions that are outdated, revises others to align them with current law and interpretations, and includes new provisions that address contemporary problems.

Child Care Rules Clarified

The rule would:

  • Clarify that adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is discrimination.
  • Clarify that leave for child care must be available to men on the same terms as it is available to women.

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Gender Stereotypes Added

The new rule would:

  • Clarify that adverse treatment of employees because they do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination.
  • Clarify that discrimination based on an individual’s gender identity is unlawful sex discrimination.

Pregnancy Accommodation Confirmed

Confirm that contractors must provide workplace accommodations, ranging from extra bathroom breaks to light-duty assignments, to women affected by pregnancy, childbirth, and related medical conditions comparable to the accommodations that they provide to other workers similar in their ability or inability to work, such as workers with disabilities or occupational injuries.

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Compensation and Benefits Discrimination Clarified

The rule would:

  • Clarify that compensation discrimination can result from job segregation or classification on the basis of gender, not just unequal pay for equal work and thus may violate E.O. 11246.
  • Confirm that contractors must provide equal benefits and equal contributions for male and female employees participating in fringe-benefit plans.

Antiharassment Procedures Recommended as a ‘Best Practice’

The new rule would address both quid pro quo and hostile-environment sexual harassment, and would include as a best practice that contractors develop and implement procedures to ensure an environment in which all employees feel safe and welcomed, are treated fairly, and are not harassed because of sex.

Guidelines Now Regs

Finally, the NPRM would change the “Guidelines” to regulations about “Discrimination on the Basis of Sex” to make clear that they have the force and effect of law.

In tomorrow’s Advisor, more on the proposed guidelines, an interactive chart of state laws, plus an introduction to our guide, HR Playbook: HR’s Game Plan for the Future.