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Department of Labor Final Rule Prohibiting Discrimination against LGBT Individuals in Government Contracting Effective April 2015

On December 3, 2014, the Department of Labor (DOL) issued a final rule prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity. The final rule implements Executive Order (EO) 13672, which was signed by President Obama on July 21, 2014. The final rule was effective on Wednesday, April 8, 2015, 120 days from the rule’s December 9, 2014, publication date in the Federal Register. The DOL FAQ on the final rule is available on the agency’s website.

Analogously, in recent informal guidance posted on its website, the U.S. Equal Employment Opportunity Commission (EEOC) take the position that discrimination against an individual because that person is transgender is a violation of Title VII of the Civil Rights Act of 1964 (Title VII) and such individuals may file a complaint of sex discrimination.

Executive Order 13672

EO 13672 modified EO 11246, first published in 1965, as subsequently amended, to expand discrimination protections that apply to federal contractors and directed the Secretary of Labor to prepare corresponding regulations. Specifically, EO 13672 required federal contractors to include language in new and modified contracts requiring certain actions to prevent discrimination on the basis of sexual orientation and gender identity. Previously, EO 11246 only prohibited federal contractors, who conduct more than $10,000 in business with the federal government in one year, from discriminating on the basis of race, color, religion, sex and national origin. As a result of EO 13672, sections 202 and 203 of EO 11246 were amended by substituting the phrase “sex, sexual orientation, gender identity, or national origin” for the phrase “sex or national origin” wherever the latter appears.

Final Rule

The DOL’s final rule, published in the Federal Register on December 9, 2014, updated the regulations implementing EO 11246, by making the same substitution described above wherever the phrase “sex or national origin” appears. As a result, the final rule prohibits discrimination based on, and requires federal contractors to take affirmative action to treat job applicants and employees without regard to sexual orientation or gender identity. Under the final rule, federal contractors must include an updated Equal Opportunity Clause in all new or modified subcontracts and purchase orders that prevent discrimination on the basis of sexual orientation and gender identity. As a result, no changes are required to existing contracts until those contracts are modified. Federal contractors must also ensure that such discrimination does not occur against its job applicants and employees and correspondingly update nondiscrimination language in job postings and advertisements.

EEOC Guidance

The EEOC explains on its website its position that discrimination against an individual because that person is transgender is a violation of Title VII. To enforce this position, the EEOC’s district, field, area and local offices will accept and investigate all such discrimination charges, and may counsel individuals who believe they have been discriminated against due to sexual orientation or transgender status of their right to file a complaint of sex discrimination under Title VII. As a general rule, employers with insured medical, dental or vision benefit plans insured in states where same-sex marriage is legal are required under state insurance laws to extend spousal coverage to same-sex spouses. Such state insurance law mandates, however, do not apply to self-insured plans. Thus, an employer with a self-insured plan is not required to offer coverage to same-sex spouses or to provide coverage for procedures for transgender employees (such as sex reassignment surgery). However, given the EEOC’s position and recent emphasis on insurance issues, employers can expect more Title VII discrimination claims from employees claiming they are entitled to same-sex and transgender benefit coverage.

Next Steps for Employers

The final rule is historic in nature in that it effectively requires, for the first time, certain private employers (government contractors wishing to keep their government contract) to ban discrimination based on sexual orientation and gender identity. These nondiscrimination obligations are required despite not being prohibited by Title VII of the Civil Rights Act of 1964 or the law in most states.

Federal contractors subject to the final rule must review and update their nondiscrimination language in all new and modified contracts and purchase orders, and ensure that job postings and advertisements, on and after April 8, 2015, prohibit discrimination based on sexual orientation and gender identity. Contractors will also need to review affirmative action policies for compliance with the final rule. Failure by federal contractors to comply with this rule may result in the loss of their contracts with the federal government. In addition, while it is not entirely clear, it is possible that such federal contractors will be required to offer benefits, such as medical benefits, to same-sex spouses, because failure to do so would likely constitute discrimination based on sexual orientation.

Other private employers who do not enter into contracts with the federal government will continue to have discretion—subject to other nondiscrimination laws—regarding policies on sexual orientation and gender identity and whether or not to offer coverage to same-sex spouses. For example, employers with self-insured plans are not required to offer coverage to same-sex spouses or to provide coverage for procedures for transgender employees (such as sex reassignment surgery). Likewise, employers sponsoring fully insured plans that are funded by insurance contracts issued in states that do not recognize same-sex marriage—and do not have nondiscrimination rules prohibiting discrimination on the basis of sexual orientation and gender identity—also are not necessarily required to offer coverage to same-sex spouses or to provide transgender benefits.

Thus, while the DOL guidance ensures that some protections are available for individuals on the basis of sexual orientation and gender identity, it does not ensure that all private employers will provide such protections. 

© 2019 McDermott Will & Emery

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About this Author

Associate

Jacob Mattinson is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  He focuses his practice on matters related to employee benefits and executive compensation.

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Todd A. Solomon apension 401k attroney  McDermott Will & Emery LLP, Chcago
Partner

Todd A. Solomon is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.  Todd focuses his practice primarily on designing, amending, and administering pension plans, profit sharing plans, 401(k) plans, employee stock ownership plans, 403(b) plans, and nonqualified deferred compensation arrangements.  He also counsels privately and publicly held corporations and tax-exempt entities regarding fiduciary issues under ERISA, employee benefits issues involved in corporate transactions, executive compensation matters, and the implementation of benefit programs for domestic partners of employees. 

Todd has significant ERISA Title I experience and has counseled plan fiduciaries with respect to investment policies, private equity, hedge funds, and other alternative investments, prohibited transaction issues, investment management agreements and payment of expenses from plan assets.

He advises multinational clients on global employee benefits matters and compliance issues. Todd is a council member of the International Bar Association Global Employment Institute (GEI) and serves as editor of the GEI’s Annual Global Report on global legal issues impacting human resources.

Todd represents clients before the Internal Revenue Service on issues such as Employee Plans Compliance Resolution System (EPCRS) filings, Audit Closing Agreement Program (CAP) negotiations, benefit plan audits and applications for determination letters. He negotiates with the Department of Labor in connection with benefit plan audits and Voluntary Fiduciary Correction Program filings, and the Pension Benefit Guaranty Corporation in connection with 4062(e) events and plan terminations.

Todd chairs the Firm's Pro Bono and Community Service Committee. He received the 2008 McDermott Will & Emery award for Outstanding Achievement and Commitment to Pro Bono and Service to the Community. Additionally, he is a member of the McDermott's Diversity and Inclusion Committee and has been involved with evaluating the Firm's domestic partner benefits policies and working with businesses in Chicago in jointly advocating for lesbian, gay, bisexual and transgender (LGBT) rights in the workplace.

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Brian J. Tiemann, Labor Attorney, McDermott Law Firm
Partner

Brian J. Tiemann is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office.   Brian focuses his practice on a variety of employee benefits matters related to pension plans, 401(k) plans, employee stock ownership plans (ESOPs), cafeteria and welfare plans, executive compensation and the implementation of benefit programs for domestic partners of employees.  He is a member of the Firm’s ESOP Affinity Group and has worked with clients to structure and maintain the qualified status of their ESOPs with the Internal Revenue...

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