OFCCP Issues New Final Regulations for Sexual Orientation and Gender Identity

AffirmativeActionThe Office of Federal Contract Compliance Programs (OFCCP) recently issued a final rule for regulations implementing President Obama’s Executive Order 13672, which prohibits federal contractors from discriminating based on sexual orientation or gender identity. The Executive Order was signed July 21, 2014.

The good news is that there is no obligation for contractors to collect any information about sexual orientation or gender identity. Likewise, contractors are not required to conduct any analyses to determine utilization or adverse impact for these groups. There are no goals for the utilization or hiring based on these two new classes.

These new regulations apply only to covered contracts or subcontracts with the U.S. government that are entered into or modified on or after April 18, 2015. There is no retroactive application of the rules.

Going forward, contractors will be required to include specific reference to sexual orientation and gender identity as a prohibited form of discrimination in their EEO contracts and subcontracts.

Currently, job advertisements must state that the contractor is an Equal Opportunity Employer. Some contractors state that they are an “Equal Opportunity Employer and no employment decisions will be based on race, color, religion, sex or national origin.” If a contractor simply states that it is an Equal Opportunity Employer, it does not have to change anything with job advertisements. If the contractor actually lists the protected categories; however, it must now include sexual orientation and gender identity as additional protected classes.  The new phrase would be as follows:  “Equal Opportunity Employer and no employment decisions will be based on race, color, religion, sex, sexual orientation, gender identity, or national origin.”

New EEO posters will be issued to include the updated protected classes. These posters are not yet final. Until the posters are finalized, contractors can continue using the most current poster.  The most current “EEO Is the Law” poster is from November 2009.

It is the OFCCP’s position that discrimination based on gender identity or transgender status violates Title VII and will be pursued as a violation using Title VII principles. Thus, although the new regulations on sexual orientation and gender identity are not effective for contracts entered into or modified before April 18, 2015, it is currently impermissible to discriminate based on gender identity or transgender status.

Contact MSEC’s Affirmative Action Planning Service for assistance in complying with these new regulations at 800.884.1238 or aaps@msec.org.