September 28, 2020

Volume X, Number 272

September 28, 2020

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Expanded Nondiscrimination Protection for Federal Contractor Employees

As a government contractor, your employment compliance requirements can change as swiftly as the issuance of an Executive Order. Effective April 8, 2015, Executive Order 13672 expanded or clarified that the prohibition against employment discrimination based on “sex” included protection against discrimination for sexual orientation and gender identity. The revised EEO statement which expands Executive Order 11246, the federal contractor’s equal employment opportunity mandate, now reads “The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. ” 41 C.F.R. §60-1.4(a)(1). The OFCCP issued the final rule without a public comment period. Therefore, some questions may remain to be answered as the implementation of this expanded protection proceeds.

Advertisements for employees should state that “the contractor considers all applicants for employment without regard to any protected bases.” Fed. Register, Vol. 79, No. 236/Tuesday, Dec. 9, 2014. As a contractor, you may provide a detailed list of protected bases as described above in your recruitment advertisements or simply state that you are “an equal opportunity employer.”

As a government contractor, you must ensure that your applicants and employees are treated on a non-discriminatory basis without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. You may want to expand or reinforce your training for supervisors and others involved in recruitment, interviewing and other employment actions to ensure compliance with this expanded requirement. Before questions may arise, you should decide who you will designate to field questions so that you have a coordinated and uniform application of your policies. Then share that point of contact information with your managers so questions flow to the proper person. You would continue to post your EEO notices in conspicuous places in your workplace and electronic messaging. If you have a more detailed EEO statement in your policy manual, revise the language to capture this expansion.

As a government contractor, you are required to ensure that your facilities, and those of customers under your control, are not segregated based on any prohibited bases. Employee facilities may not be segregated based on race, color, religion, sex, sexual orientation, gender identity, or national origin. Further, as a contractor, you need to ensure that any location where your employees are assigned also does not segregate facilities based on these protected characteristics. The regulations define “facilities” to include waiting rooms, work areas, restaurants and other eating areas, time clocks, restrooms, wash rooms, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing provided for employees. However, separate or single-use restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes. The OFCCP does not expect you as a government contractor employer to modify or construct new facilities but only to provide equal access to existing facilities.

This non-discrimination protection applies to a government contractor’s employees working in the United States or abroad. As a government contractor, you may not discriminate in hiring or making assignments for work to be performed outside the United States. An exemption exists for your employees who are hired outside the United States for work to be performed outside the United States. The OFCCP anticipates that some countries may deny a visa of entry for an employee or potential employee based on a protected characteristic. If any contractor encounters such a refusal, and believes the reason for the refusal may be due to race, color, religion, sex, sexual orientation, gender identity, or national origin, then the contractor must immediately notify the Department of State and the Deputy Assistant Secretary of such refusal.

You, as the employer, do not have to collect, keep or report data on sexual orientation or gender identity. You do not have to change your affirmative action plan or establish placement goals. The OFCCP will scrutinize your nondiscriminatory hiring and employment practices in the normal course of any compliance evaluation but you have no additional record-keeping obligations due to this Executive Order.

What’s next? On the horizon, we hope to have the final regulations implementing Executive Order 13665 which prohibits federal contractors from discriminating against applicants or employees who “inquire about, discuss or disclose their compensation or the compensation of other employees or applicants, except where the disclosure was carried out by an employee who obtained the information in the course of performing his or her essential job functions.” Fed. Reg. Vol. 79, No. 180, Weds. Sept. 17, 2014 (proposed rule). The impact of the final regulations may be far-reaching and require changes to confidentiality agreements, rules on non-disclosure and what steps, if any, a government contractor employer may take to limit open discussion on employees’ compensation and benefits.

© 2020 Odin, Feldman & Pittleman, P.C.National Law Review, Volume V, Number 135


About this Author

Fran Dwornick, Labor Attorney, Odin Feldman Law Firm

In addressing employment issues for a client company, Fran Dwornik combines her education and experience with an understanding of the company’s goals, objectives, and values to help them solve problems, ensure compliance with federal, state and local laws, and address personnel matters in a customized way. Fran’s practice focuses on management-oriented representation,compliance counseling, and training. Concentrating on litigation avoidance through strategic planning, creation and review of personnel policies, and training and interactive discussions with clients, she...

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