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Federal Contractor Employees have New Sex Discrimination Guidelines

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its Final Rule to update sex discrimination guidelines for federal government contractors. The Final Rule became effective on August 15, 2016, and protects employees of covered federal contractors and subcontractors from pay discrimination, sexual harassment, hostile work environment, lack of accommodations for pregnancy and childbirth, family caregiver discrimination and discrimination on the basis of gender identity or transgender status.

The Final Rule provides a list of "best practices" that a contractor may follow to foster a workplace that complies with OFCCP requirements. It also expands the definition of “sex” to expressly include “pregnancy, childbirth or related medical conditions; gender identity; transgender status; and sex stereotyping." A contractor may not make distinctions based on sex in recruiting, hiring, firing, promoting, compensation, hours, job assignments, training, benefits, or other terms, conditions, or privileges of employment (unless the contractor can meet the very high bar of demonstrating that sex is a “bona fide occupational qualification” of the position).

The Final Rule prohibits contractors from providing difference wages, benefits, other forms of compensation, or access to earning opportunities to similarly situated employees on the basis of sex. The determination of whether employees are “similarly situated” must be interpreted broadly and is case specific.

The Final Rule also prohibits discrimination in the provision of fringe benefits, such as medical, hospital, accident, and life insurance, retirement benefits, leave, and other terms, conditions and privileges of employment.

It forbids discriminatory treatments on the basis of pregnancy, childbirth or related medical conditions. Contractors may not refuse to hire pregnant women (or women of childbearing capacity), terminate employees or require them to take leave because of their pregnancy, and they may not limit job responsibilities solely because an employee is pregnant. Contractors also are forbidden from providing employees with health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth or related medical conditions. A reasonable accommodation (such as modified duty) cannot be denied because of an employee’s inability to perform the job duties because of pregnancy, childbirth or related medical conditions. Moreover, job-guaranteed medical leave (including paid sick leave) must be provided by contractors for pregnancy, childbirth or related medical conditions.

Family leave must be provided for male employees as well on the same terms that such leave is provided for female employees. 

The Final Rule provides that it is unlawful for a contractor to treat employees differently because they have received or plan to receive transition-related medical services. Contractors must allow employees to use restrooms, changing rooms, showers and similar facilities consistent with the gender with which employees identify.

Contractors are also prohibited from making employment decisions based on stereotypes about how they expect males or females to look, speak or act.

As for health coverage issues, the Final Rule requires contractors to ensure that coverage for healthcare services be made available on the same terms for all individuals for whom the services are medically appropriate, regardless of sex assigned at birth, gender identity or recorded gender.

If you have any questions or seek information about laws pertaining sex discrimination or any other types of employment discrimination, contact Lebau & Neuworth at 888-456- 2529 or lebauneuworth.com/contact-us.

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