by Tony Puckett
The U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) has announced proposed regulations updating its current sex discrimination regulations for federal government contractors and subcontractors. The proposed regulations are the first substantive update to the “Sex Discrimination Guidelines,” which the OFCCP adopted in 1970. 
The OFCCP’s press release states that the goal behind the proposed regulations is to align the regulations with current law and legal principles and to address their application to current workplace issues. The proposed regulations set forth requirements for federal contractors and subcontractors to meet their obligations under Executive Order 11246. These obligations include ensuring nondiscrimination in employment on the basis of sex, taking affirmative action to employ diverse applicants, and ensuring all employees are treated without regard to their sex.
Forms of sex discrimination
The proposed regulations provide that discrimination based on any of the following is a form of sex discrimination:
- Pregnancy;
- Childbirth;
- Medical conditions related to pregnancy or childbirth;
- Child care;
- Sexual harassment;
- Sexual stereotypes about how men or women are expected to look, dress, speak, or act;
- Gender identity; and
- Transgender status (regardless of whether the individual has undergone sex-reassignment surgery, plans to have such surgery, or is undergoing other processes to facilitate adoption of a gender other than the individual’s gender at birth).
The proposals also provide detailed examples of employment practices that may be discriminatory. In relation to pregnancy and childbirth, denying accommodations such as alternative job assignments, modified duties, or light-duty assignments may be considered discrimination.
With respect to gender-based stereotypes, the proposed regulations address unlawful assumptions about working fathers and male caregivers that result in denial of opportunities to male employees that are provided to working women. For example, denying a male employee’s request for leave for childcare purposes while granting a female employee’s similar request could constitute discrimination.
Discriminatory workplace practices
The proposed regulations also address various practices in the workplace that would constitute sex-based discriminatory treatment unless the employer has a bona fide occupational qualification (BFOQ) for the different treatment. The practices addressed in the proposals include:
- Treating unmarried female parents differently than unmarried male parents;
- Imposing differences in retirement age or other terms, conditions, or privileges of retirement based on sex;
- Restricting job classifications on the basis of sex;
- Maintaining seniority lines and lists based on sex;
- Recruiting or advertising for members of one sex for a certain job, including the use of gender-specific terms for jobs;
- Distinguishing on the basis of sex in apprenticeship or other formal or informal training programs;
- Treating genders differently with respect to networking, mentoring, sponsorship, individual development plans, rotational assignments, succession planning programs, or performance appraisals that may result in subsequent job or career advancement or opportunities; and
- Engaging in employment practices unrelated to selection procedures for employment that have a disparate, adverse impact on women.
Compensation and other issues
The proposed regulations also address sex discrimination in compensation in several ways. First, the term “wage schedules” would be replaced with the term “compensation” to clarify that both individual and systemic forms of compensation discrimination are prohibited. The proposals define “compensation” broadly to include “any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and contributions to retirement.”
Second, the proposals provide more guidance to contractors on the types of practices they should review. Contractors must monitor and eliminate practices that deprive women of equal earning opportunities, such as the ability to obtain regular and overtime hours, commissions, pay increases, incentive compensation, or any other additions to regular earnings. Third, the proposals add guidance on identifying “similarly situated” employees for purposes of analyzing compensation differences.
The proposed regulations further require federal contractors to provide “appropriate physical facilities” for men and women unless the employer can show that construction
of such facilities would be unreasonable because of excessive expense or lack of space. The proposals on physical facilities would specifically prohibit a contractor from denying transgender employees access to the bathrooms used by the gender with which they identify.
Tony Puckett is an attorney with McAfee & Taft in Oklahoma City, Oklahoma. He may be contacted at tony.puckett@mcafeetaft.com.