UPDATE ON OFCCP RULE MAKING FOR NON-DISCRIMINATION BASED ON GENDER IDENTITY AND SEXUAL ORIENTATION

Following the President’s Executive Order 13672 signed on July 21, 2014, there has been anticipation of how the Department of Labor will address the President’s charge to create new legislation within 90 days covering sexual orientation and gender identity for non-discrimination in employment. In immediate response to the Executive Order, OFCCP released a directive on August 19, 2014, making clear the protection of gender identity and transgender status under E.O. 11246. This is in keeping with the EEOC’s recent cases related to discrimination of transgender employees (Macy v. Holder, 2012; EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 2014; EEOC v. Lakeland Eye Clinic, 2014) claiming violations of Title VII of the Civil Rights Act of 1964.

On October 20, 2014, OFCCP met the President’s call for new regulatory protections when it submitted to the Office of Management and Budget (OMB) a final rule titled Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identify by Contractors and Subcontractors. Although the proposed rule is not itself published, it is worth noting that there was no accompanying Information Collection Request (ICR) submitted with the rule. An ICR is required when a federal agency plans to collect substantive information from intended respondents to ensure under the Paperwork Reduction Act (PRA) that respondents and the government are not unduly burdened in carrying out the proposed legislation. This may be indication that limited or no data will be required of federal contractors in meeting their obligations to comply with non-discrimination of applicants and employees on the basis of gender identity and sexual orientation.

Stay tuned for further updates…

By Jana Garman, M.A., Consultant and Keli Wilson, M.A., Senior Consultant, DCI Consulting Group 

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