OFCCP Issues Directive on Gender Identity and Transgender Status

On August 19, 2014, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2014-02 clarifying that the prohibition against sex discrimination in Executive Order 11246 includes discrimination based on gender identity and transgender status. Executive Order 11246 applies to federal government contractors and subcontractors.

The OFCCP issued the directive in response to Executive Order 13672, signed by President Obama on July 21, 2014, which amended Executive Order 11246 to prohibit discrimination based on sexual orientation and gender identity. The OFCCP plans to issue regulations implementing Executive Order 13672 in October 2014. Executive Order 13672 applies to contracts entered into on or after the effective date of the implementing regulations.

The directive is in line with the Equal Employment Opportunity Commission’s guidance that discrimination based on gender identity or transgender status violates Title VII’s prohibition against discrimination “on the basis of sex.” In the EEOC’s view, treating a person differently because of transgender status is by definition sex discrimination because it is “related to the sex of the victim.” This is true “regardless of whether the discrimination was motivated by sex stereotyping or by some other reason related to the employee’s gender identity, such as discomfort with the idea of a transition.”

The directive clarifies that under existing Title VII case law, Executive Order 11246’s prohibition against discrimination based on sex already prohibits discrimination based on gender identity and transgender status. Executive Order 13672 supplements this prohibition by making sexual orientation and gender identity “stand-alone” protected categories.

MSEC will provide support and direction to federal contractor members about how to implement Executive Order 13672 once regulations are finalized and published.