OFCCP Proposed Rules Could Have Dramatic Effect on Federal Contractors

On January 30, 2015, the Office of Federal Contract Compliance Programs (“OFCCP”) published a Notice of Proposed Rule Making (“NPRM”) that seeks to update its Sex Discrimination Guidelines (“Guidelines”) to mirror the law developed through legislation and court decisions since the last major overhaul in 1970. Federal contractors will find that most of the material in the NPRM is non-controversial and matches legal requirements they already face. However, if the revised Guidelines become effective, contractors will face provisions that go above and beyond the law as developed by Congress and the courts. Further, it should be noted that legal issues may arise regarding the authority of the agency to issue guidelines that regulate employers in ways that apparently are inconsistent with statutes and court opinions. Federal contractors should stay alert to the NPRM and make their opinions known by commenting on the NPRM at the Federal Register before the window closes on March 31, 2015.

Some Changes to Be Aware Of:

The NPRM adopts the EEOC’s recent guidance on pregnancy discrimination requiring reasonable accommodations that may be in the form of bathroom breaks or light duty offered to other workers who are similar in their ability or inability to work.

Federal contractors must provide fathers with the same childcare leave that is available to mothers.

The agency adopts the stance that “[r]esearch has demonstrated that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race-based) policy or practice in place.”

The agency will require federal contractors to provide transgender employees access to the bathroom used by the gender they identify with.

Full text of the NPRM can be found on the Federal Register.

If you have any questions about any of the issues discussed in this alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.