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OFCCP Proposes Update to Old Sex Discrimination Guidelines

    Client Alerts
  • February 06, 2015

Last week, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued proposed regulations intended to update its procedures for investigating and addressing sex discrimination by federal contractors. The current rules were promulgated in 1970 and fail to include a number of statutory amendments, court decisions and enforcement positions occurring over the past 45 years.

Most of the proposed rule changes simply codify these developments, and do not constitute attempts to change current law or OFCCP enforcement policies. For example, the current regulations predate the Pregnancy Discrimination Act, and the proposal includes provisions consistent with non-discrimination by contractors on the basis of pregnancy. Also, the rules recognize sexual harassment as a form of sex discrimination, consistent with well-settled federal law.

The proposed regulations do contain a few items of interest for contractors. They assume that the U.S. Supreme Court will agree in the pending Young case that employers must accommodate pregnancy restrictions (OFCCP says it will revise the proposal if the Court holds otherwise). The proposed rules include prohibitions against gender stereotyping that have recently been used by the agency to pursue claims against employers accused of discrimination against LGBT persons. Finally, the regulations codify OFCCP’s aggressive procedures for analyzing claims of pay disparity based on gender.

OFCCP is accepting comments on the proposed regulations rules through March 31, with final rules expected later this year.