Late last month, the Office of Federal Contract Compliance Programs (OFCCP) and the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on sex discrimination. The EEOC's updated guidance came in the form of new fact sheets addressing equal pay and pregnancy discrimination. The OFCCP's new guidance came in the form of a final rule modernizing its 1970-developed sex discrimination regulations. Some updates brought OFCCP regulations in line with existing law, while other updates focus on changes for federal contractors.
New OFCCP Rule
The OFCCP Rule updates prior OFCCP guidance on a variety of sex–based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, gender identity and family caregiving discrimination. The Rule also tracks the Supreme Court's Young v. UPS decision (discussed here) and requires contractors to provide reasonable accommodations to pregnant workers in circumstances where contractors provide similar accommodations to other employees in similar situations, such as employees with disabilities or work-related injuries.
Note: The Final Rule becomes effective on August 15, 2016.
The OFCCP Rule includes specific prohibitions on sex-based wage discrimination. It provides that an employee's ability to recover lost wages arises whenever a contractor pays wages that are the result of sex-based wage discrimination, not only when an alleged discriminatory decision setting wages was made. The Rule prohibits sex discrimination in the area of fringe benefits and includes a prohibition on policies that give men and women different benefits with regard to parental leave or flexible work schedules.
Along with explicitly prohibiting discrimination based on gender identity and transgender status, the Rule requires contractors to take some affirmative steps regarding transgender workers. Contractors must allow employees to use bathrooms, changing rooms, showers, and similar facilities that align with the gender with which employees identify. The Rule also states the OFCCP's position that a categorical exclusion of coverage for gender dysphoria or gender transition from a health care plan is facially discriminatory because it targets employees based on gender identity or transgender status.
New EEOC Fact Sheets
The EEOC's Facts About Equal Pay and Compensation Discrimination fact sheet highlights the Equal Pay Act and the EEOC's interpretation of this law. The Equal Pay Act requires employers to pay employees in the same establishment equally for work which requires equal skill, effort, and responsibility, and is performed under similar working conditions. The EEOC's fact sheet provides brief descriptions and examples of the terms “skill,” “effort,” “responsibility,” “working conditions,” and “establishment.” The fact sheet also outlines some differences between the Equal Pay Act and other laws that prohibit compensation discrimination, namely, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
The EEOC's Facts About Pregnancy Discrimination fact sheet emphasizes that employers cannot treat pregnant workers differently than other workers who may have limitations on their ability to work. The fact sheet explains that pregnant employees must be permitted to continue working as long as they can perform their jobs. Employers may not force pregnant employees who have a pregnancy-related health issue to remain on leave until the baby is born, nor may employers prohibit an employee from returning to work until a specified time after childbirth. Like the OFCCP Rule, the EEOC's fact sheet provides that pregnant workers who need accommodations to perform their jobs must be given accommodations in the same manner as any other temporarily disabled employee. Accommodations includes things such as providing light duty, modified tasks, alternative work assignments, or leave.
California Employment Law
In light of the OFCCP's Final Rule, and the EEOC's fact sheets on sex-based and pregnancy discrimination, California employers must ensure they have updated policies and procedures. Employers should ensure they make appropriate accommodations for pregnant workers when accommodations are provided to other employees with similar limitations. Should you have any questions about employment law or sex discrimination, don't hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.