Landmark Changes to Sex Discrimination Rules for Federal Contractors; OFCCP Proposes First Revisions in 40 Years

By: Steven D. Irwin, Esq. 

On January 30, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) proposed the first revisions to sex discrimination rules for federal contractors in four decades.  The OFFCP aims to address many of the realities affecting today’s workforce and the challenges they present.

Executive Order 11246 prohibits covered federal contractors and subcontractors from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. It also requires that certain contractors take affirmative action to ensure applicants are hired and employed without regard to the bases outlined above.

In its proposed rule, the OFCCP rescinds the current guidelines (41 C.F.R. Part 60-20) that direct federal contractors on how to avoid discriminating against an applicant or employee on the basis of sex. In their place, the OFCCP proposes guidelines that address practices that it believes continue to create discriminatory hurdles to equal opportunity.

One addition in the proposed guidelines prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions.The current guidelines do not address discrimination against workers affected by these conditions.The proposed rule makes clear such discrimination is a form of unlawful sex discrimination, and that federal contractors cannot refuse to hire pregnant women or otherwise subject applicants or employees to adverse treatment because of their pregnancy or childbearing capacity. The proposed rule also makes it an unlawful practice for a federal contractor to limit a pregnant employee’s job duties based solely on the fact of her pregnancy, or to require a doctor’s note for a pregnant woman to continue to work when doctors’ notes are not required for employees who are “similarly situated.”

Under the proposed rule, a contractor must also avoid making decisions on the basis of sex-based stereotypes, which would include taking adverse action against a female employee or applicant on the assumption that her family obligations will interfere with her work or adverse action against a male employee because he desires to take leave to care for his newborn.

Following the January 30th publication of the proposed rule in the Federal Register, the public has 60 days, or until March 31, 2015, to offer comments. The OFCCP will then publish a final rule, which will state when it goes into effect.

The final rule will likely require review of employment policies and practices of federal contractors and subcontractors.  If you wish to comment and would like assistance in preparing your submission, please do not hesitate to call upon us. We will continue to dissect the OFCCP’s proposal and continue to monitor its movement through the rulemaking process.

Steve Irwin is a partner in Leech Tishman’s Pittsburgh office and chairs the firm’s Government Relations Practice Group. He led the firm’s Employment Practice Group for over a decade. Steve can be reached at 412.261.1600 or sirwin@leechtishman.com.

Leech Tishman is a firm dedicated to providing full-service commercial legal services to individuals, businesses, and institutions. We combine a deep understanding of our clients and their businesses with skilled legal counsel to find solutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employment, energy, environmental, safety & toxic torts, estates & trusts, government relations, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York and Wilmington, DE. For more information call 412.261.1600 or visit us at www.leechtishman.com.