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Gender Identity Requirements for Federal Contractors

New Rules for Federal Contractors:

On December 3, 2014, the Department of Labor announced a Final Rule changing OFCCP’s regulations so that they prohibit discrimination based on, and require treatment of applicants and employees without regard to, sexual orientation or gender identity.  These final rules were issued as a result of President Obama signing an executive order in July, 2014, extending workplace protections to lesbian, gay, bisexual and transgender (LGBT) Americans in the federal contracting workforce. 

The only affirmative action requirements affected by this final rule are those relating to company policies.  Contractors satisfy this obligation by including the updated Equal Opportunity Clause in new or modified subcontracts and purchase orders, ensuring that applicants and employees are treated without regard to their sexual orientation and gender identity, and by updating the equal opportunity language used in job solicitations and posting updated notices.

Actions Federal Contractors Must Take Now:

The Equal Opportunity Clause, require contractors to expressly state in solicitations for employees that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. The regulations detail the options available to contractors for complying with this requirement, which range from stating in employment solicitations that ‘‘all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin’’ to simply including the phrase ‘‘an equal opportunity employer.’’  While some contractors include the detailed list, others include the phrase ‘‘equal opportunity employer.’’

Sample Policy:  ABC Company is an Equal Employment Opportunity Employer.  The policy of ABC Company is to provide equal employment opportunity to all applicants and employees without regard to sex, gender, sexual orientation or gender identity, pregnancy, race, color, age, religion, disability, national origin, military service, veteran status or any other legally protected status.  ABC Company complies with all state, federal and local laws regarding employment.  This policy applies to all personnel actions including recruitment, selection, hiring, training, compensation, benefits, transfers and promotion.

Federal Contractors should incorporate this same additional language in job solicitations, postings, subcontracts, purchase orders, and any other document that set forth the Equal Employment Opportunity language.

No Changes Required for Affirmative Action Tracking and Data Collection:

This final rule makes no changes to the provisions governing reporting and information collection.  The new obligations are separate from the additional affirmative action requirements in the contents of contractors’ written affirmative action programs. No changes are being made to the written affirmative action program requirements, which will continue to be limited to gender, race, and ethnicity.  The final rule does not require contractors to set placement goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze any data on these bases.

Use of Company Facilities by Transgender Employees:

A less publicized change addresses segregated facilities. To comply with its obligations under the Order, a contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis sexual orientation and gender identity (as well as all other EO classifications) cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. The term ‘‘facilities’’ includes restrooms, wash rooms, locker rooms, and other dressing areas.

The changing legal landscape requires careful attention when dealing with gender identity and sexual orientation issues in the workplace. 

CONTACT: Paul D. Dorger

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