Notice of Proposed Rulemaking regarding Sex Discrimination by Federal Contractors
Kicking off a year expected to be a year filled with regulatory changes, the United States Department of Labor (USDOL) issued its proposed new regulations regarding sex discrimination by federal contractors. On January 28, 2015, the Office of Federal Contract Compliance Programs (OFCCP) announced a Notice of Proposed Rulemaking updating the rules that govern how federal contractors and subcontractors prohibit sex discrimination. The proposal would rescind outdated guidance, align requirements with prior amendments to Title VII, established legal precedent, and better address the realities of today's workplaces. OFCCP's proposed rule deals with a variety of barriers to equal opportunity and fair pay, including pay discrimination, sexual harassment, hostile work environments, a lack of workplace accommodations for pregnant women as well as gender identity and family caregiving discrimination.
According to the Notice of Proposed Rulemaking (NPRM) Fact Sheet, existing Sex Discrimination Guidelines have not been substantively updated since their adoption in 1970. “Employer policies and practices, the nature and extent of women's participation in the labor force, and statutory and case law have changed significantly since 1970, leaving part 60-20 outdated and inaccurate. In fact, some of the guidelines' provisions deviate from well-established law, and the agency no longer enforces outdated provisions. As a result, the existing regulations may, in some cases, confuse contractors as to their legal obligations. Meanwhile, significant and pervasive workplace discrimination and other barriers to equal opportunity for women continue to persist, requiring strong and clear regulations that contractors can understand and that OFCCP can enforce effectively.”
Among numerous other changes, the proposed regulations would clarify that:
- adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is discrimination;
- that childcare leave must be available to fathers on the same terms as it is to mothers;
- that contractors must provide equal fringe and retirement benefits to male and female employees;
- that pregnant workers are entitled to reasonable accommodations; and
- that discrimination against an inpidual because of her or his gender identity is sex discrimination.
The proposed rules would benefit 65 million employees who work for Federal contractors by updating the sex discrimination rules–benefitting both female and male employees who may suffer sexual harassment or other forms of sex discrimination. The proposal would provide many of the more than two million women in the Federal contractor workforce who are likely to become pregnant each year with reasonable accommodations for their pregnancy. As such, employers should prepare for these significant changes, as well as changes to the white-collar exemptions that may reduce the number of overtime-exempt employees in their workforce.
Public Comment Period
While the proposed rules could be subject to legal challenge, the USDOL does not need congressional approval to modify these regulations. Public comments can be submitted via the NPRM website (here) from January 30 – March 31, 2015, a period of 60 days from the NPRM's publication in the Federal Register.
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