New Protections for Sexual Orientation and Gender Identity of Employees Working on Federal Contracts

By: Steven D. Irwin, Esq.

It is anticipated that on Tuesday, December 9, 2014, the Office of Federal Contract Compliance (“OFCCP”) within the Department of Labor (“DOL”) will publish final regulations to govern the prohibition against federal contractors discriminating on the basis of sexual orientation or gender identity. The regulations will go into effect 120 days following publication.

Federal contractors should promptly modify their job advertisements, postings and contracts to interpose sexual orientation and gender identity among the established protected classes of race, color, religion, sex and national origin. The expanded protections will apply to new contracts entered into after the rules become effective, as well as to existing contracts that are modified after that point. DOL-issued equal employment opportunity posters will be updated, but until they are published, employers may use the current poster (which was last revised in November 2009).

It should be noted that implementation will not require government contractors to survey, guess or otherwise collect data from their employees related to these classes, nor even solicit voluntary disclosure of their status in this regard. In addition, employers will not be required to target individuals on the basis of sexual orientation or gender identity when recruiting applicants for open positions. Furthermore, contractors will not be asked to set goals for hiring individuals having any particular sexual orientation or gender identity.

Once in place, the OFCCP will confirm in any audit of a federal contractor that the necessary notices of non-discrimination encompass these classes now entitled to protection. Investigations will be launched upon receipt of a complaint; otherwise, random audits will be selected using administratively neutral indicia. The protocols for investigations will follow those already in place which use Civil Rights Act Title VII principles.

As is the case for affirmative action in the hiring of women and minorities, the expanded protections apply to contractors and subcontractors on federally assisted projects, such as Commonwealth of Pennsylvania contracts funded with Federal dollars. The new regulations also reach beyond federal contracts performed domestically. A contractor on a project abroad who is denied a visa because of his or her gender identity or sexual orientation is mandated to report the denial to the OFCCP.

The regulations do not appear to make a change to the exemptions in place for a religious corporation, which may favor applicants of a particular religion. And finally, a federal contractor may not use these prohibitions as a subterfuge to act in a discriminatory fashion toward an employee who may belong to another protected class.

Leech Tishman’s Government Relations and Employment Practice Groups carefully monitor developments in this area, and encourage you to call with any questions concerning the implications of these new rules or determinations of how best to comply.

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, IL, Los Angeles, CA, New York, NY and Wilmington, DE. For more information call 412.261.1600 or visit www.leechtishman.com.