On April 8, 2015, updates to Executive Order (EO) 11246 per EO 13672 took effect, prohibiting discrimination by all covered federal contractors and subcontractors on the basis of sexual orientation and gender identity. To better inform the federal contractor community on coming into compliance with these regulatory updates, the OFCCP presented an informational webinar on March 18th and again on March 25th, providing further clarification on how the OFCCP will implement these nondiscrimination requirements under the final rule.
The webinar provided clarification on contractor action items resulting from the updates to EO 11246. The presenters stated that these updates require contractors to:
- Include the terms “sexual orientation” and “gender identity” in the Equal Opportunity (EO) clause;
- Use the appropriate EEO is the Law poster (updated poster is hoped to be available shortly after the April 8, 2015 effective date);
- Report to OFCCP visa denials believed to be based on protected sexual orientation or gender identity status;
- Update Equal Opportunity Employer (EOE) tagline.
Examples of proper taglines shared in the webinar included spelling out all protected classes, or if utilizing the shortened EOE tagline, the new terms would be considered covered by “EOE.” The presenters reminded contractors that EOE does not cover disability and protected veteran status, and those groups must be separately called out by contractors complying with 503 and VEVRAA, even if utilizing the shortened EOE tagline. Additional tagline examples are expected on the OFCCP FAQ site.
In addition to contractor action items, the OFCCP reviewed a number of practical concerns, as summarized below.
Compliance Evaluation Expectations
Contractors can expect compliance officers to request copies of updated EO clauses in subcontracts and purchase orders and demonstration of inclusive job advertisement taglines and use of the updated EEO is the Law poster. There is no expectation for any data collection, placement goals, or new outreach related to sexual orientation and gender identity.
For the purposes of implementing EO 13672, the OFCCP clarified their use of the following definitions:
- Sexual orientation is defined as an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender.
- Gender identity is defined as one’s internal sense of one’s own gender, which may or may not correspond to the sex assigned to a person at birth.
The acronym “LGBT” is not to be used by federal contractors in place of “sexual orientation” or “gender identity,” as this does not accurately reflect all people protected under these terms by EO 11246.
Items NOT Required
Presenters stated that contractors are not required to change their written affirmative action programs, policies and handbooks, or training offerings. Though not required, the OFCCP encouraged contractors to consider developing trainings and directed viewers to additional EO 13672 resources currently found on their website.
Contractors were advised that they may not ask for documentation or proof of gender identification, sexual orientation, or sex. They also may not ask for proof of marriage unless asked of all marriages. For the purpose of extending benefits to all employees, contractors may ask if an employee was married in a state that recognizes same-sex marriages. Finally, the presenters reaffirmed that there are no changes to religious exemptions.
With the regulatory updates now in effect, DCI encourages contractors to look to the OFCCP FAQ website for additional guidance as it is published, as well as the expected tagline examples. The new EEO is the Law poster is also expected to be published soon.
By Jana Garman, Consultant and Brittany Dian, HR Analyst at DCI Consulting Group