Federal contractors take note. This April, sexual orientation and gender identity will be added to the groups that are protected from discrimination. Read on for information on immediate changes and possible impact on your current AAP requirements and metrics.
On July 21, 2014 President Obama issued Executive Order 13672, which added “sexual orientation and gender identity” to the prohibited bases of discrimination in Executive Order 11246. This effectively prohibits discrimination based on sexual orientation or gender identity for federal contractors and subcontractors. The regulations to implement Executive Order 13672 were published in the Federal Register on December 9, 2014 and become effective April 8, 2015.
What is Changing?
Specifically, the new regulations enact the following changes to Title 41 of the Code of Federal Regulations:
- Change the language that mentions the entire list of protected categories/bases by replacing the words “sex, or national origin” with the words “sex, sexual orientation, gender identity, or national origin” whenever they appear in the regulations (applies to the Equal Opportunity Clause, tagline used in the solicitations or advertisements, notices displayed to employees, etc.). This language is also changed in the section 60-1.8 “Segregated Facilities” to ensure that there is no segregation on the basis of sexual orientation and gender identity when providing facilities to employees. In addition, the OFCCP may conduct compliance evaluations to ensure that applicants and employees are treated without regard to sexual orientation and gender identity (60-1.20).
- Changes to the reporting of visa denials: contractors that have employees who will be working abroad must inform the Department of State and the Deputy Assistant Secretary if one of their (prospective) employees is denied a visa to enter a foreign country and the contractor believes that the denial may be based on the employee’s race, color, religion, sex, sexual orientation, gender identity, or national origin. (41 CFR 60-1.10)
What is Staying the Same?
Perhaps what is more important to contractors, though, is what is not changing:
- AAP requirements are not changing
- No requirement to establish goals related to sexual orientation or gender identity
- No requirement to invite to self-identify sexual orientation or gender identity
- No data collection requirements
While contractors are not required to collect any new data associated with this Final Rule, the provision of 41 CFR 60-2.35 indicates that “Each contractor’s compliance with its nondiscrimination obligations will be determined by analysis of statistical data and other non-statistical information which would indicate whether employees and applicants are being treated without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.”
In the vast majority of instances, statistical analysis of employment decisions with regard to sexual orientation or gender identity will be impractical.
Without the ability to categorize individuals into groups (protected v. non-protected), no statistical comparison of outcomes can be performed. So
analysis of promotions, terminations, and compensation will be impossible without the ability to identify which individuals are in the protected group
and which are not. Given that this is a self-identification type of classification, neither firms nor the OFCCP will be able to complete a statistical
analysis. Further, external hiring benchmarks are not available because to date, there are no widely accepted census data (either provided by a government
agency or private firm) with regard to either sexual orientation or gender identity. This leaves both firms and the OFCCP only “other non-statistical
information” for analysis.
While these types of cases may still be few and far between, the EEOC reached a conciliation agreement with a grocery store in September 2013 related to the firing of a transgender employee. Within the last few months the EEOC has filed two federal lawsuits against employers relating to transgendered employees. See EEOC v. R.G. & G.R Harris Funeral Homes, Inc. and EEOC v. Lakeland Eye Clinic. Given that the EEOC has begun to take cases in this area and with the President’s issuing of EO 13672, can the OFCCP be too far behind before they begin enforcement of these issues?
As noted, there are as yet no widely accepted statistics regarding benchmarks for either sexual orientation or gender identity. However, as we noted in this blog recently, the UCLA report "How Many People are Lesbian, Gay, Bisexual, and Transgender?" issued in 2011 estimates the number of individuals who identify themselves as transgender in the United States at 0.3% of the US population, or a very small percentage of the 3.5% who identify themselves as either lesbian, gay, bisexual or transgender (LGBT).
Also, a recent 2014 Centers for Disease Control and Prevention survey entitled "Sexual Orientation and Health Among U.S. Adults: National Health Interview Survey, 2013," found that less than 3% of the population identified themselves as gay, lesbian or bisexual.
Given that mainstream universities and government agencies are beginning to compile or estimate statistical information in this area, it may not be so long before the OFCCP mandates a workforce benchmark related to sexual orientation or gender identity. As a comparison, think about where the OFCCP was with regard to individuals with disabilities just ten or twenty years ago. Who would have foreseen the self-identification and utilization goals that have come with the revision of Section 503? Contractors should consider, and be prepared for, the possibility that these new requirements may, in the future, include data analysis following a trajectory similar to what has happened with Section 503.
For additional information on this topic, visit our OFCCP Compliance page and contact one of our experts.