Agency Update

OFCCP and EEOC Press Forward on Key Public Policy Issues

Apr 20, 2015
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SHRM participated in two key agency activities in the past week: submitting comments to the Office of Federal Contract Compliance Programs (OFCCP) on their proposal to update 40-year old sex discrimination guidelines and testifying before the Equal Employment Opportunity Commission (EEOC) on the importance of diversity and inclusion in the modern workplace.

On April 14, SHRM submitted comments to the Office of Federal Contract Compliance Programs’ (OFCCP) proposal to revise its sex discrimination guidelines under Executive Order 11246. SHRM supports updating the guidelines, which are more than 40 years old, to reflect statutory amendments to Title VII and binding judicial interpretations of the law. Unfortunately, the proposal exceeds this objective by including unsupported theories of discrimination and categorically labeling some conduct as per se unlawful without any legal basis or authority.

In addition to pointing out that OFCCP does not have the authority to promulgate interpretive regulations that have the full force and effect of law, as they attempt to do with this proposal, the comment also makes several recommendations to the agency:

  • In light of the March 25 Supreme Court ruling in Young v. United Parcel Service, OFCCP should refrain from incorporating EEOC’s recently-released pregnancy guidance which was invalidated by the Court in Young;
  • Revise the NPRM to make clear that the examples used represent conduct that might be discriminatory under certain circumstances, rather than presenting them as per se unlawful;
  • Clarify that not all sex-referent job titles, such as “foreman,” constitute discrimination;
  • Remove the section on discriminatory compensation because compensation discrimination is already identified as a prohibited activity. As currently written, the NPRM implies that Executive Order 11246 and Title VII mandate across-the-board pay equity even when legitimate, nondiscriminatory reasons justify pay differentials;
  • Issue separate guidance on gender identity and sexual orientation, which were included in Executive Order 11246 as separate bases for discrimination, rather than including them as a subset of sex discrimination.

At an April 15 meeting titled “EEOC at 50: Confronting Racial and Ethnic Discrimination in the 21st Century Workplace” held at Miami Dade College, SHRM member Iliana Castillo-Frick (who serves as Vice-Provost of HR at the college and is pictured above at left with EEOC chair Jenny Yang), testified on SHRM’s behalf. The meeting marked the first public meeting held by the Commission outside of Washington, D.C. in more than a decade. The meeting focused on identifying the obstacles that remain to combating racial and ethnic discrimination 50 years after the passage of Title VII of the Civil Rights Act. SHRM’s testimony focused on how modern concepts of diversity have evolved beyond affirmative action and how diversity and inclusion programs help organizations build a skill-based workforce.

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