OFCCP Seeks to Update Sex Discrimination Regulations

By Allen Smith Jan 29, 2015
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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:

  • City of Los Angeles v. Manhart, 435 U.S. 702 (1978), requiring equal retirement benefits for women and men, despite statistical differences in longevity.
  • County of Washington v. Gunther, 452 U.S. 161 (1981), holding that compensation discrimination is not limited to unequal pay for equal work within the meaning of the Equal Pay Act.
  • Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), holding that the employer discriminated on the basis of sex by excluding pregnancy-related hospitalization coverage for the spouses of male employees while providing complete hospitalization coverage for the spouses of female employees.
  • Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), recognizing a cause of action for a sexually hostile work environment.
  • California Federal S. & L. Assn. v. Guerra, 479 US. 272 (1987), upholding a California law requiring up to four months of leave and reinstatement to pregnant employees and finding the law not inconsistent with Title VII of the Civil Rights Act of 1964.
  • Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989), finding sex discrimination on the basis of sex stereotyping.
  • Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998), recognizing causes of action for same-sex harassment.
  • Int’l Union, United Auto., Aerospace and Agr. Implement. Workers of Am. v. Johnson Controls Inc., 499 U.S. 187 (1991), holding that possible reproductive health hazards to women of childbearing age did not justify sex-based exclusions from certain jobs.
  • Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998), holding that employers are vicariously liable under Title VII for the harassing activity of supervisors who create hostile working conditions for those over whom they have authority. The cases also established an affirmative defense to a sexual harassment claim if the employer can show it exercised reasonable care to prevent and promptly correct any sexual harassment and the employee unreasonably failed to take advantage of preventive or corrective opportunities offered by the employer.
  • Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), clarifying the broad scope of the prohibition of retaliation for filing a charge of sex discrimination.

Harassment

“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.

Sex Stereotyping

The sexual stereotyping section of the OFCCP’s proposed rule includes examples of sex-based discrimination, including:

  • Failure to promote a woman, or otherwise subjecting her to adverse employment treatment, based on sex stereotypes about dress, including wearing jewelry, makeup or high heels.
  • Harassing a man because he is considered insufficiently masculine.
  • Adverse treatment of an employee because he or she does not conform to sex-role expectations by being in a relationship with a person of the same sex.
  • Adverse treatment of an employee or applicant because of his or her actual or perceived gender identity or transgender status.
  • Adverse treatment of an employee or applicant based on sex-based stereotypes about caregiver responsibilities.
  • Denial of opportunities to mothers of children based on the sex-stereotyped belief that women with children should not or will not work long hours, regardless of whether the contractor thinks it is acting in the employee’s or children’s best interest.

Compensation Discrimination

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.”

'Duplicative' Rule

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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