On December 9, 2014, the U.S Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a final rule implementing Executive Order (EO) 13672 effectively amending EO 11246, which previously only prohibited discrimination by federal contractors and subcontractors on the bases of race, color, religion, sex, and national origin. EO 13672 now extends sexual orientation and gender identity protections to employees and applicants in the federal contracting workplace. The final rule does not take effect until April 8, 2015 and applies to all covered contracts entered into or modified on or after that date. The new rule does not define “sexual orientation” or “gender identity,” however according to OFCCP, the agency will utilize the same definitions used by the Equal Employment Opportunity Commission and developed under Title VII case law.
The new rule will affect several aspects of the federal contracting workplace including the following:
- New Equal Opportunity Clause Required. Currently, 41 C.F.R. § 60-1.4 requires that government contracts include an equal opportunity clause which in part prohibits a federal government contractor from discriminating any employee or applicant on the basis of race, color, religion, sex, or national origin. When the rule takes effect in April 2015, covered contracts entered into or modified after that date must contain the new equal opportunity clause which adds reference to sexual orientation and gender identity.
- New Taglines for Federal Government Contract “Advertising.” The final rule also requires that in all solicitations or advertisements for employees or applicants, contractors must state that “all qualified applicants will receive consideration for employment without regard to race, color, religion, sexual orientation, gender identity, or national origin.” According to OFCCP, this requirement may also be satisfied by simply including that the contractor is an “Equal Opportunity Employer.”
- Compliance Reporting Requirements. EO 13672 broadens the requirement that prospective contractors may be required by the Secretary of Labor to provide a statement from any labor union or agency referring workers to the contractor stating that the contractor’s practices and policies do not discriminate on the basis of sexual orientation or gender identity as part of its Compliance Report.
Notwithstanding these new requirements, EO 13672 does not impose several requirements that are usually par for the course in equal opportunity amendments:
- No Data Collection Requirements. OFCCP has stated that the final rule will not require contractors to collect and analyze any data on the basis of sexual orientation or gender identity. While both statistical and non-statistical data will be considered in determining whether contractors have complied with their nondiscrimination obligations, the final rule does not requirement contractors to collect any data themselves.
- No Placement Goals. The final rule also does not require contractors to set placement goals on the bases of sexual orientation and gender identity, unlike some affirmative action requirements for women, minorities, protected veterans, and individuals with disabilities.
Prior to the final rule roll-out mid-next year, OFCCP plans to publish compliance assistance materials to help government contractors understand the new requirements and incorporate them into the workplace. For more information regarding OFCCP news, updates, and programs for contractors, visit the “Federal Contracting Corner” at http://www.dol.gov/ofccp/index.htm.