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OFCCP Releases New Directive on Gender Identity and Sex Discrimination

As Secretary of Labor Thomas Perez recently announced, OFCCP has updated its guidance to “make clear that discrimination on the basis of transgender status is discrimination based on sex” under Title VII and existing case law.  By e-mail Director Patricia Shiu announced the release of Directive 2014-02, the purpose of which is to “clarify that existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, includes discrimination on the basis of gender identity and transgender status.”  Interestingly the directive does not address protections on the basis of “sexual orientation,” (specifically covered by President Obama’s recent Executive Order) and instead focuses on gender identity and transgender status, which was the subject of a recently decided EEOC decision.  The Directive is effective immediately.

OFCCP’s Directive appears to be additional guidance bridging the gap until the release and implementation of the anticipated regulations addressing Executive Order 13672.  The proposed regulations are due to be published by mid-October.

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 231


About this Author

Mickey Silberman, Labor and Employment law attorney, Jackson Lewis Law firm, Principal

Mickey Silberman is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. He is the Chair of the Jackson Lewis Affirmative Action & OFCCP Defense Practice Group and the Co-head of the firm’s Pay Equity Resource Group.

Mr. Silberman and the practice group annually prepare thousands of affirmative action plans for employers in all industries and throughout the country. During the past several years, Mr. Silberman has directed the defense of hundreds of OFCCP audits, including successful defense of Corporate Management (“glass ceiling”) Reviews....