OFCCP Proposes Revisions to Sex Discrimination Guidelines

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) yesterday issued a Notice of Proposed Rulemaking that would revise the existing Sex Discrimination Guidelines. The revision would set forth the requirements for covered federal contractors and subcontractors to prevent sex discrimination in employment.  The notice will be published in the Federal Register tomorrow, and the comment period will be open until March 31, 2015.

The text of the NPRM is here.

Of particular interest to readers of this blog, the proposed revision to the Guidelines discusses pregnancy and pregnancy accommodation, and family responsibilities discrimination.  First, the proposed revision clarifies that discrimination based on pregnancy, childbirth, or related medical conditions is sex discrimination. (Yes, the original Guidelines were so old that they pre-dated the Pregnancy Discrimination Act.) Section 60-20.5 provides more detail, providing that “related medical conditions” include, but are not limited to, “lactation; disorders directly related to pregnancy, such as preeclampsia (pregnancy-induced high blood pressure), placenta previa, and gestational diabetes; symptoms such as back pain; complications requiring bed rest; and the after-effects of a delivery.” This list may seem startling, but it is in line with recent court rulings, the amendments to the Americans with Disabilities Act, and recent interpretations by the EEOC (including its Enforcement Guidance on PregnancyDiscrimination and Related Issues).

Next, the proposed revision provides a list of illustrative examples of workplace practices that could be considered pregnancy discrimination. These include employment decisions made based on childbearing capacity as well as pregnancy; forced leave during pregnancy; termination because of pregnancy; and requiring a pregnant woman to obtain a doctor’s note to continue to work when similarly situated employees are not required to obtain a note.

Importantly, the list also includes denying job accommodations to pregnant women. The OFCCP notes that this section may change, based on the Supreme Court’s decision in the Young case. The proposed revision states that an example of unlawful pregnancy discrimination would be “[d]enying an alternative job assignment, modified duties, or other accommodations to a pregnant employee who is temporarily unable to perform some of her job duties because of pregnancy, childbirth, or related medical conditions when such assignments, modifications, or other accommodations are provided, or are required to be provided by a contractor’s policy or by other relevant laws, to other employees whose abilities or inabilities to perform their job duties are similarly affected.” For many contractors, this will not be a huge change because they are covered by state laws requiring accommodation, or because they comply with the ADA’s mandate to accommodate disabilities even if those disabilities arise from pregnancy.

The proposed revision echoes the EEOC’s recent guidance on pregnancy discrimination by reminding contractors that family leave must be provided to male employees on the same terms that it is provided to female employees.

Turning to family responsibilities discrimination, the proposed revision states that employment decisions made on the basis of sex-based stereotypes is sex discrimination – and this includes decisions made on the basis of sex-based stereotypes about caregiver responsibilities. The proposed revision provides several examples, including adverse treatment of a female employee based on the sex-based assumption that her family responsibilities will interfere with her work, adverse treatment of a male employee because he has taken or plans to take paternity leave, denying opportunities to mothers based on the assumption – whether hostile or benevolent – that she should not or will not work long hours, and evaluating female employees who have caregiving responsibilities adversely based on a sex-based stereotype that they are less capable or less skilled that noncaregivers.

Like the other provisions, the FRD provision is based on case and statutory law and is consistent with the EEOC’s interpretations (including its Enforcement Guidance on Unlawful Disparate Treatment of Workers withCaregiving Responsibilities), and thus should not be particularly surprising.  Sex-based assumptions are the foundation of most FRD claims, and the proposed revision will make it even more important for contractors to implement an FRD prevention program to avoid liability.

 

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