OFCCP Issues Final Sex Discrimination Rule

June, 2016


By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

On June 14, 2016, OFCCP issued its final rule about sex discrimination for federal contractors. It will go into effect on August 15, 2016. The rule defines sex discrimination as discrimination on the basis of pregnancy, childbirth, and related medical conditions; gender identity; transgender status; and sex stereotyping. It goes on to define specific practices that could be viewed as disparate treatment (intentional discrimination), as well as examples of neutral policies or practices that could potentially have a disparate impact (unintentional discrimination).

Specific topics such as sex-based compensation discrimination, pregnancy discrimination and sex stereotyping discrimination are also covered. Finally, the rule suggests several best practices to avoid sex discrimination or harassment violations. The following will summarize each of these topics.

More detail can be found in the complete final rule. While these rules apply only to federal contractors with a contract or contracts of more than $10,000, the discriminatory and best practices found in these rules are applicable in most situations to any employer.

Disparate Treatment

Practices that may be considered disparate treatment include:

  • Making a distinction between married and unmarried persons that is not applied equally to men and women;
  • Denying women with children an employment opportunity that is available to men with children;
  • Treating men and women differently with regard to the availability of flexible work arrangements;
  • Firing, or otherwise treating adversely, unmarried women, but not unmarried men, who become parents;
  • Applying different standards in hiring or promoting men and women on the basis of sex;
  • Steering women into lower-paying or less desirable jobs on the basis of sex;
  • Imposing any differences in retirement age or other terms, conditions, or privileges of retirement on the basis of sex;
  • Restricting job classifications on the basis of sex;
  • Maintaining seniority lines and lists on the basis of sex;
  • Recruiting or advertising for individuals for certain jobs on the basis of sex;
  • Distinguishing on the basis of sex in apprenticeship or other formal or informal training programs; in other opportunities such as on-the-job training, networking, mentoring, sponsorship, individual development plans, rotational assignments, and succession planning programs; or in performance appraisals that may provide the basis of subsequent opportunities;
  • Making any facilities and employment-related activities available only to members of one sex, except that if the contractor provides restrooms, changing rooms, showers, or similar facilities, the contractor must provide same-sex or single-user facilities;
  • Denying transgender employees access to the restrooms, changing rooms, showers, or similar facilities designated for use by the gender with which they identify; and
  • Treating employees or applicants adversely because they have received, are receiving, or are planning to receive transition-related medical services designed to facilitate the adoption of a sex or gender other than the individual's designated sex at birth.

Disparate Impact

Practices that may be considered disparate impact include:

  • Height and/or weight qualifications that are not necessary to the performance of the job and that negatively impact women substantially more than men;
  • Strength, agility, or other physical requirements that exceed the actual requirements necessary to perform the job in question and that negatively impact women substantially more than men;
  • Conditioning entry into an apprenticeship or training program on performance on a written test, interview, or other selection procedure that has an adverse impact on women; and
  • Relying on recruitment or promotion methods, such as “word-of-mouth” recruitment or “tap-on-the-shoulder” promotion that have an adverse impact on women.

Compensation & Benefits

Discriminatory compensation practices include:

  • Contractors may not pay different compensation to similarly situated employees on the basis of sex.
  • Contractors may not grant or deny higher-paying wage rates, salaries, positions, job classifications, work assignments, shifts, development opportunities, or other opportunities on the basis of sex. Contractors may not grant or deny training, apprenticeships, work assignments, or other opportunities that may lead to advancement to higher-paying positions on the basis of sex.
  • Contractors may not provide or deny earnings opportunities because of sex, for example, by denying women equal opportunity to obtain regular and/or overtime hours, commissions, pay increases, incentive compensation, or any other additions to regular earnings.
  • Contractors may not provide different fringe benefits to employees on the basis of sex.

Pregnancy

Examples of practices discriminating against pregnant employees include:

  • Refusing to hire pregnant people or people of childbearing capacity, or otherwise subjecting such applicants or employees to adverse employment treatment, because of their pregnancy or childbearing capacity;
  • Firing female employees or requiring them to go on leave because they become pregnant or have a child;
  • Limiting pregnant employees' job duties based solely on the fact that they are pregnant, or requiring a doctor's note in order for a pregnant employee to continue working;
  • Providing employees with health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth, or related medical conditions to the same extent that hospitalization and other medical costs are covered for other medical conditions;
  • Failing to provide accommodations to pregnant employees who are similar in their ability or inability to work as other employees who are provided accommodations; and
  • Failing to provide equal leave entitlements (including paid leave) on the basis of sex and failing to provide leave to pregnant employees when leave is offered to other employees for medical conditions that create a similar inability to work as pregnancy or pregnancy-related conditions.

Sex Stereotyping

Examples of unlawful sex stereotyping include:

  • Failing to promote a woman, or otherwise subjecting her to adverse employment treatment, based on sex stereotypes about dress, including wearing jewelry, make-up, or high heels;
  • Harassing a man because he is considered effeminate or insufficiently masculine;
  • Treating employees or applicants adversely based on their sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes;
  • Adverse treatment of a male employee because he has taken or is planning to take leave to care for his newborn or recently adopted or foster child based on the sex-stereotyped belief that women and not men should care for children;
  • Denying opportunities to mothers of children based on the sex-stereotyped belief that women with children should not or will not work long hours, regardless of whether the contractor is acting out of hostility or belief that it is acting in the employee's or her children's best interest;
  • Evaluating the performance of female employees who have family caregiving responsibilities adversely, based on the sex-based stereotype that women are less capable or skilled than their male counterparts who do not have such responsibilities; and
  • Adverse treatment of a male employee who is not available to work overtime or on weekends because he cares for his elderly father, based on the sex-based stereotype that men do not have family caregiving responsibilities that affect their availability for work, or that men who are not available for work without constraint are not sufficiently committed, ambitious or dependable.

Best Practices

Best practices for contractors include:

  • Avoiding the use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available;
  • Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral;
  • Providing, as part of their broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions;
  • Providing appropriate time off and flexible workplace policies for men and women;
  • Encouraging men and women equally to engage in caregiving-related activities;
  • Fostering a climate in which women are not assumed to be more likely to provide family care than men; and
  • Fostering an environment in which all employees feel safe, welcome, and treated fairly, by developing and implementing procedures to ensure that employees are not harassed because of sex. Examples of such procedures include:
    • Communicating to all personnel that harassing conduct will not be tolerated;
    • Providing anti-harassment training to all personnel; and
    • Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.

For additional questions on your obligations as a federal contractor, affirmative action plans, or sex discrimination in general, contact Cascade today.

 

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