August 2, 2021

Volume XI, Number 214

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July 30, 2021

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There’s Still Time to Comment on OFCCP’s Proposed Sex Discrimination Rules

OFCCP published its long-awaited Sex Discrimination Rules amidst a lot of other activity vying for our attention.  Maybe you’ve not had the chance to review them (yet). But you’ve still got time.  The public comment period is open until Tuesday March 31, 2015 – let your voice be heard.

Comments can be filed via fax or online: Fax: (202) 693–1304 (for comments of six pages or less); or the Federal eRulemaking Portal – www.regulations.gov. Refer to RIN number 1250–AA05.

In summary, the proposed rules would update the 1970’s-era Sex Discrimination Guidelines and impose mandatory obligations on employers.

Below are a few highlights:

  • Purpose: Unlike the former Guidelines, the Rules would create a binding set of EO 11246 regulations.

  • Discriminatory Pay: The proposed rules broadly prohibit any practice which denies “equal pay” or “equal access” to opportunities for higher pay on the basis of sex. Title VII prohibits discrimination in pay among similarly-situated employees on the basis of sex or race. The proposed regulations seemingly adopt OFCCP’s current approach to pay discrimination as set out in the Agency’s Directive 307.

  • Discrimination Based on Pregnancy, Childbirth and Related Medical Conditions: This proposed Rule states employers “must treat people of childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes…as other persons not so affected, but similar in their ability or inability to work.” Perhaps most notable, for example, employers would not be permitted to deny a pregnant employee an accommodation when that accommodation is provided to other employees whose abilities or inabilities to perform their job duties are similarly affected. This prohibition is currently being litigated before the U.S. Supreme Court.

  • Harassment and Hostile Work Environment: This Rule clarifies prohibited harassment includes that based on gender identity, pregnancy, childbirth and related medical conditions, and non-sexual harassment which is “because of sex,” such as harassment based on transgendered status. The Rule also suggests but does not mandate anti-harassment best practices.

The NPRM also includes a “Section-by-Section Analysis” portion of OFCCP’s Federal Register. There, OFCCP provides insights on what it believes the Rules mean and how OFCCP may interpret them.

Jackson Lewis P.C. © 2021National Law Review, Volume V, Number 83
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About this Author

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

303-225-2400
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