BY AMY ROBINSON & CAROLYN PEARSONThis article originally appeared in the August 17, 2016, edition of the Cascade Business News
On August 15, 2016, a new antidiscrimination rule from the Office of Federal Contract Compliance Programs (OFCCP) will go into effect. The new rule is the first update to the OFCCP gender discrimination rule since 1970, and it is meant to ensure that OFCCP rules are in line with current practices in the modern era. In addition to updated rules around traditional notions of equal opportunity and fair pay, the new rules address accommodations for pregnancy, childbirth, and related medical conditions; new gender identity discrimination protections; and discrimination based on family caregiving gender role stereotypes.
Who does it apply to?The short answer is that if you are a business that receives money directly or indirectly from the federal government, you will likely need to comply. The OFCCP rule applies to any business or organization that: (1) holds a single federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has federal contracts or subcontracts that, combined, total in excess of $10,000 in any 12-month period; or (3) holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount. Because the rule also applies to subcontractors, it is important to note that it would likely also apply to those businesses who receive federal funds indirectly because they are “downstream” from a federal contract.
Who is protected?Any employee of a business that holds a federal contract or subcontract, regardless of whether that employee works on the specific project that is the subject of the federal contract.
What are the most important changes?It has been the law for several decades that federal contractors cannot discriminate against employees on the basis of sex, but the new rule now defines “sex” to include sexual orientation and gender identity. Importantly, guidance from the OFCCP specifies further that employees must be permitted to use the bathroom that corresponds to the gender he or she identifies with rather than his or her gender at birth. Similarly, employers may not refuse to hire potential employees who have had or are planning to have some transition-related medical services on that basis.
The rule also strengthens protections for women who are pregnant or have pregnancy or childbirth-related medical issues, and requires employers to offer accommodations to those employees to the same extent such accommodations are provided to other employees with similar limitations, such as those with disabilities or workplace injuries. This might include extra bathroom breaks, light duty assignments, and leave/time off.
The rule also prohibits different treatment between male and female workers based on stereotypical assumptions about family caregiving roles. Examples provided by the OFCCP include failing to offer employment opportunities to working mothers based on a presumption that childcare responsibilities will conflict with job performance or availability, and denying flexible workplace arrangements to working fathers when they are available to working mothers.
So, what do employers need to do now?Don’t panic. Most employers reading this will need to make few changes to their current policies and practices to comply with the new rule. That’s because employment laws in the state of Oregon already included most of these protections, so employers who keep up with the best employment practices in Oregon should have a head start to compliance with this rule. However, employers should give a close look at their current employment policies and handbooks to ensure they comply. It is particularly important to consider the impact of the rule on hiring procedures, requests for accommodations, medical insurance, and employee leaves to ensure that your current policies do not inadvertently treat employees differently based upon the new definitions of sex or otherwise conflict with the new rule’s requirements.
We also recommend updated training for supervisors and other personnel involved in hiring and accommodations decisions to ensure they are aware of the new rules and working to ensure compliance as well.