ASSOCIATED GENERAL CONTRACTORS OF OHIO

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OFCCP Finalizes Sex Discrimination Rule

June 21, 2016 10:50 AM | Andrea Ashley (Administrator)

On June 14, the Office of Federal Contract Compliance Programs (OFCCP) published its final rule requiring federal and federally-assisted contractors to meet the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces. The rule takes effect on August 15. 

The rule explains contractors’ responsibilities and clarifies protections for employees of federal and federally assisted contractors and subcontractors on issues related to pay discrimination, sexual harassment, pregnancy accommodations, childbirth and related medical conditions, gender identity, and stereotypes about sex roles such as who the primary caregiver is in a family.

Pregnancy accommodations.  The rule requires that contractors provide workplace accommodations, such as extra bathroom breaks and light-duty assignments, to an employee who needs such accommodations because of pregnancy, childbirth, or related medical conditions, in certain circumstances where those contractors provide comparable accommodations to other workers, such as those with disabilities or occupational injuries.

Pay Practices. Contractors may not pay workers differently because of their sex. For instance, contractors may not deny opportunities for overtime work, training, better pay, or higher-paying positions because of a worker’s sex. The rule also includes a provision that enables employees to recover lost wages any time a contractor pays compensation that is the result of discrimination, not only when the decision to discriminate is made.

Fringe Benefits. The rule requires contractors to provide equal benefits to male and female employees participating in fringe-benefit plans. The rule prohibits discrimination on the basis of sex with regard to fringe benefits such as medical, hospital, accident, life insurance, and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions, and privileges of employment.

Sexual Harassment. The rule prohibits unwelcome sexual advances, requests for sexual favors, offensive remarks about a person’s sex, and other verbal or physical conduct of a sexual nature when such conduct unreasonably interferes with an individual’s work performance, becomes the basis for employment decisions, or creates a hostile working environment.

Work assignments and job training.  The rule gives men and women equal access to jobs and workforce development opportunities. A contractor may not set requirements for jobs or training that are based on an applicant’s or employee’s sex unless the contractor can meet the high bar of demonstrating that such requirements are a bona fide occupational qualification. Additionally, a contractor may not set requirements, such as height or weight qualifications, that adversely affect applicants because of their sex unless it demonstrates that the qualifications are job-related and consistent with business necessity.

Caregiver protections.  The rule protects the rights of workers who provide caregiving to their loved ones. Contractors may not treat female or male employees or applicants differently based on the stereotypical assumption that women are more likely to have caregiving responsibilities. For instance, contractors may not deny mothers employment opportunities that are available to fathers based on the faulty assumption that mothers’ childcare responsibilities will conflict with their job performance. Similarly, contractors may not deny fathers flexible workplace arrangements that are available to mothers based on the faulty assumption that men do not have and do not assume childcare responsibilities.

Transgender workers. The rule makes clear that sex discrimination includes discrimination because of an employee’s gender identity. Also, the rule requires contractors to allow workers to use bathrooms, changing rooms, showers, and similar facilities consistent with the gender with which the workers identify. In addition, the preamble to the rule notes that an explicit, categorical exclusion of coverage for all care related to gender dysphoria or gender transition is facially discriminatory because such an exclusion singles out services and treatments for individuals on the basis of their gender identity or transgender status.

Sex stereotypes. Contractors may not treat employees or applicants adversely because they fail to comply with expectations about how women and men should look or act or what kinds of jobs they should do.

Contractors are encouraged to review their policies and practices to ensure that they are in line with the requirements of the new rule as well as provide training to staff on what is not acceptable in the workplace when it comes to sex discrimination and harassment.  AGC’s construction-themed DVD, Diversity Rules: Harassment, Sensitivity and Correction Training for Construction Workers and Supervisors, may be a great resource for contractors.

For more information about the rule, including frequently-asked-questions and a fact sheet, visit www.dol.gov/ofccp/sexdiscrimination

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