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The Office of Federal Contract Compliance Programs (OFCCP) proposed updates to its sex discrimination regulations on Jan. 28, 2015, for the first time since they were issued 44 years ago.
The proposed rule added a section on harassment and another on sex stereotyping, and it aligned its regulations with Supreme Court rulings that have been decided since the current regulations were issued in 1970. The OFCCP also noted that compensation discrimination is a persistent problem that needs to be rectified.
The OFCCP estimated that approximately 500,000 federal contractors employing 65 million employees would be affected by its proposed rule.
“Because the regulations are administered by OFCCP, employers will face new enforcement mechanisms for these provisions. If an employer is accused of violating Title VII, the employee must first file a charge and then has the option of filing suit in federal court. Now, employees will also have the option of filing a charge or complaint with the OFCCP, which does not have extensive experience investigating individual claims,” Connie Bertram, an attorney with Proskauer in Washington, D.C., told SHRM Online.
“OFCCP has, through the enforcement process, the ability to seek remedies, such as debarment, that are not available to the EEOC [Equal Employment Opportunity Commission] or under Title VII,” Bertram added. “Moreover, OFCCP will be focusing on these additional nondiscrimination obligations during compliance audits and, potentially, looking for opportunities to identify and remedy classwide claims for violations of them. The standards for class claims and relief adopted by OFCCP are substantially less rigorous than those that apply to class litigation in federal court.”
Supreme Court Rulings
“Since 1970 the Supreme Court has determined that numerous practices which were not then widely recognized as discriminatory constitute unlawful sex discrimination under Title VII,” the U.S. Department of Labor’s (DOL’s) OFCCP wrote in its reasons for amending the current sex discrimination guidelines.
These Supreme Court rulings include:
“Sexual harassment continues to be a serious problem for women in the workplace and a significant barrier to women’s entry into and advancement in many nontraditional occupations, including the construction trades and the computer and information technology industries,” the OFCCP said in its section-by-section analysis. The proposed rule remedies this omission.
Harassment is defined to include harassment based on pregnancy, childbirth or related medical conditions as well as harassment that is not sexual in nature but is because of sex, such as harassment based on gender identity. “This aligns the meaning of ‘because of sex’ for purposes of sexual harassment with its meaning under current Title VII and executive order law,” the OFCCP stated.
The sexual stereotyping section of the OFCCP’s proposed rule includes examples of sex-based discrimination, including:
The OFCCP also focused on compensation discrimination in the proposed rule.
“Even within the same occupation, women earn less than men on average,” the OFCCP stated. “For example, in 2012, full-time women auditors’ and accountants’ earnings were less than 74 percent of the earnings of their male counterparts. Retail salespersons faced the largest wage gap, among whom women made only 64 percent of what men made.
“Likewise, in the medical profession, women earn less than their male counterparts. On average, male physicians earn 13 percent more than female physicians at the outset of their careers and as much as 28 percent more eight years later. This gap could not be explained by practice type, work hours or other characteristics of employees’ work situations,” the OFCCP said.
“A person’s gender should never determine whether or not she gets, keeps or advances in a job,” said Latifa Lyles, director of the DOL’s Women’s Bureau. “The rule we are proposing will protect workers from losing out on job opportunities because of antiquated stereotypes, nonconformity with gender norms or pregnancy.”
However, Cara Crotty, an attorney with Constangy, Brooks & Smith in Columbia, S.C., said, “I would ask the OFCCP to abandon the proposed rule altogether. Rescinding the outdated sex discrimination guidelines currently in place is appropriate, but do federal contractors or the OFCCP really need these additional rules? After all, the EEOC has already pronounced its interpretations and enforcement positions on these topics, and the OFCCP interprets the prohibition on sex discrimination in E.O. 11246 the same as in Title VII. Why do we need duplicative rules from the OFCCP?”
Comments on the proposed rule are due March 31.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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