OFCCP Publishes Final Rule Updating Sex Discrimination Guidelines
On June 14, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a final rule updating its sex discrimination guidelines for federal contractors and subcontractors for the first time in 40 years. The rule seeks to generally align with existing law under Title VII of the Civil Rights Act of 1964 as interpreted by courts and the EEOC; however, it also goes well beyond existing legal guidance and addresses the issues of “sex-based barriers to equal employment and fair pay, including compensation discrimination, sexual harassment, hostile work environments, a lack of workplace accommodations for pregnant workers, and gender identity and family caregiving discrimination.”
In April 2015, CUPA-HR joined the Equal Employment Advisory Council and the Society for Human Resource Management to file comments on the proposed rule. In our comments, we wrote that we support OFCCP’s stated objective of applying longstanding Title VII principles to the administration and enforcement of Executive Order 11246, and that we agree with the agency’s conclusion that the guidelines no longer completely reflect current Title VII jurisprudence and that revisions to the guidelines are not only appropriate, but also necessary. However, we respectfully submitted that the proposed rule goes well beyond the agency’s stated objective for this rulemaking and purports instead to interpret Title VII in ways that are contrary to Congressional intent. Put simply, Congress has not authorized any federal agency to promulgate Title VII interpretive regulations that have “the full force and effect of law.”
The comments requested that substantial revisions be made to clarify that OFCCP is providing examples of employer conduct that might constitute sex discrimination under certain circumstances (notably, where employment decisions are made because of sex), rather than suggesting that certain conduct, regardless of fact or intent, amounts to an automatic violation of Executive Order 11246 or Title VII.
The final rule remains relatively unchanged from its 2015 proposal and applies to employers with federal contracts or subcontracts totaling more than $10,000 over a 12-month period. The rule will become effective on August 15, 2016.