On 12/3/14 (see our previous blog here), the OFCCP published the final rule implementing Executive Order 13672. This rule prohibits federal contractors and federally–assisted construction contractors and subcontractors, from discriminating based on sexual orientation and gender identity.
Information within this blog has been gleaned from the BLR article Final LGBT rule published: What federal government contractors need to do as well as dol.gov and dol.gov/ofccp.
Synopsis of Executive Order 13672 Final Rule
The Executive Order prohibits federal contractors and federally–assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. The Executive Order also requires Government contractors to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. (dol.gov)
When Does the Final Rule Take Effect?
The rule implementing this EO will become effective 120 days after its publication in the Federal Register, 4/8/15, and will apply to federal contracts entered into or modified on or after that date.
Definitions of Sexual Orientation and Gender Identity
Note: The EO 13672 does not define the terms “sexual orientation” and “gender identity.” Per the OFCCP, the same definitions currently used by the EEOC will be utilized.
How does this Affect Employers?
This will affect covered contracts and handbook policies on equal employment/anti-discrimination and affirmative action plan narratives.
- Federal contracting agencies must include gender identity and sexual orientation as prohibited bases of discrimination under the Equal Opportunity (EO) clause.
- Covered contracts entered into or modified on or after 4/8/15, must contain the new EO clause.
- Contractors and contracting agencies may modify contracts for a multitude of reasons.
- Employee Handbooks should be updated to reflect the new ruling with the effective date.
Advertising for Employment – Equal Opportunity Employer (EOE)
This information is important for HR Hiring Managers and those posting job listings on various social media sites. HR Hiring Managers for Federal Contractors should ensure that job advertisements contain correct language as an Equal Opportunity Employer (EOE).
- When creating advertisements for employees, the final rule states that contractors must “state that all qualified applicants will receive considerations for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.”
To satisfy this requirement, in accordance with the OFCCP, an employer may list all protected classes or, the easier all-encompassing option; state that the contractor is an Equal Opportunity Employer (EOE).
Equal Opportunity is the Law Poster
The Equal Opportunity is the Law poster required in all workplaces is being revised to reflect the new requirements of Executive Order 13672.
The posters will be updated to include sexual orientation and gender identity discrimination. Once the revised poster has been updated, we will provide a link for quick download. Until the poster has been revised, contractors are permitted to use current version of the poster (dated 11/09).
Federal Contract Compliance Manual
For additional information on Gender Identity and Sex Discrimination see our blog dated 8/21/14 covering the OFCCP Directive 2014-02, Gender Identity and Sex Discrimination (DIR 2014-02). Additionally, we invite you to bookmark the webpage for the Federal Contract Compliance Manual. The FCCM may provide government/federal contractors and subcontractors more transparency and clarity about basic OFCCP procedures and processes.
Workplace Training, Development, and Policy Review
When rulings like this are implemented, it is a good idea to review discrimination, anti-harassment, and other policies to ensure that sexual orientation and gender identity are specifically listed as protected from harassment and discrimination.
Future training: Remember, any contract entered into or modified on or after 4/8/15 should include sexual orientation and gender identity in any training on discrimination and harassment prevention.
Other Items to Note
- This final rule does not require that contractors ask future job applicants and current employees to voluntarily self-identify their sexual orientation or gender identity.
- The OFCCP has stated that the rule does not prohibit contractors from asking future job applicants and current employees to voluntarily provide this information. As many HR departments are fully aware; doing so is ill-advised as it may be prohibited by state or local law.
How does this Differ from Other Affirmative Action Requirements?
- According to Attorney Naomi Levin from the DOL’s Division of Policy and Program Development, the final rule does not require a number of things that are required under the requirements for women, minorities, protected veterans, and individuals with disabilities. Levin, speaking at the OFCCP webinar on the final rule held on December 5, 2014, stated that the final rule addressing sexual orientation and gender identity:
- Does not require outreach or goals
- Does not change affirmative action plans (except for EO clauses, taglines and posters included as supporting documents)
- Does not require invitations to self-identify sexual orientation and/or gender identity
- Does not require other affirmative action activities, such as contractors are required to conduct on behalf of women and minorities. (BLR article by Susan Schoenfeld)
Additional Materials on Executive Order 13672 Final RuleEO 13672 FACT SHEET EO 13672 FINAL RULE FAQs
The OFCCP hosted webinars to address questions and concerns on 12/5 and 12/9. Recordings of these webinars should be posted to the following site soonWEBINARS
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