"Distinguishing On The Basis Of Sex...": Will the Revised Sex Discrimination Regulations Impact Our Good Faith and Outreach Efforts For Women?

As proposed in the Notice of Proposed Rulemaking (NPRM) for the Sex Discrimination Guidelines, sections 60-20.2(b)(7) and 60-20.2(b)(8) of the revised regulations  will seem to limit the federal contractor’s ability to recruit and engage potential female recruitment sources. This section reads as follows:

Section 60-20.2(b) Disparate Treatment
“…unlawful sex-based discriminatory practices include, but are not limited to the following:
(7) Recruiting or advertising for individuals for certain jobs on the basis of sex…
(8) Distinguishing on the basis of sex in… other opportunities such as networking, mentoring, sponsorship…”

In our review of the proposed regulations, two questions immediately came to mind: 1) Can federal contractors no longer have and/or support a women’s ERG/Affinity group? 2) If underutilization for women does occur, can federal contractors no longer sponsor or support women-centric organizations that may assist in widening their female applicant pool? Unfortunately, responses to these questions remain unclear. Although sex can be considered for recruitment purposes if it is a bona fide occupational qualification, there is no mention of considering sex due to underutilization and placement goals.

We cannot imagine that there will be a rule “battling” the essence of the affirmative action necessary to correct underutilization of women in the workforce. However, should this proposed rule become final, we are certain that the contractor community will look forward to guidance from the OFCCP regarding acceptable good faith and outreach efforts.

Yevonessa Hall, M.P.S., Consultant and Brittany Dian, HR Analyst, DCI Consulting Group

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