The new regulations, which go into effect on Aug. 15, 2016, address discrimination situations involving sexually hostile work environments, pregnant women, childbirth and related medical conditions, as well as a focus shift towards sexual orientation and gender identity.
“There’s been a whole host of new developments in the law in general that were not reflected in the guidelines, and that’s why OFCCP deemed it appropriate to move ahead and reissue the guidelines so that they reflect the current status of the law,” Kenneth Rosenberg, a partner at Fox Rothschild told the Federal Drive with Tom Temin.
One of the most notable overhauls to the Federal Contract Compliance Manual is a focus on gender identity and inclusion that address issues such as bathroom and changing accommodations, gender neutral job titles, and targeted transgender discrimination.
“Under the old guidelines, which focused primarily on discriminatory practices based on one sex or gender, it was as basic as if you had policies or procedures that intentionally discriminated against an individual because of their gender or their sex,” Rosenberg said. “However, the law has changed substantially since then to broaden the definition of sex.”
If, for example, a transgender man were to develop ovarian cancer, the contractor’s health insurance would have to cover the treatment. Otherwise, it would be deemed discriminatory.
“Essentially, the government is saying that if an individual identifies themselves as being male, even if they were born female, then the contractor or employer has to not discriminate against said individual based on that person’s identification with that gender,” said Rosenberg.
Most federal contractors are already governed under title VII of the Civil Rights Act, and any changes made to it in statutory and case law, but OFCCP wanted reinforce the fact it expects contractors to follow any guidelines they’ve put out to the public.
The issued guidelines also provide straightforward language should OFCCP conduct an audit and find that a contractor’s policies and procedures are not up to date with the current status of the law.
“They [OFCCP] were trying to catch up to what the general requirements under law are,” said Rosenberg. “They can point to the guidelines and say ‘look, you should be on notice that we are expecting all federal contractors to be following these guidelines.'”
Rosenberg said there are steps contractors can take in the weeks leading up to the new guidelines taking effect so their companies are compliant in time like examining their current policies and procedures, including protections for same sex and transgender individuals in their equal opportunity employment policy.
“There is certainly sufficient guidance out there for employers to turn to to determine what their obligations are,” said Rosenberg. “It’s a simple change, but something that they [OFCCP] deemed appropriate.”