After 46 years, OFCCP has updated their guidelines on sex discrimination.  On June 14, 2016, OFCCP issued a final rule updating their regulations at 41 CFR 60-20.  The new sex discrimination regulations take effect on August 15, 2016. The new regulations are intended to more accurately reflect today’s workforce, legal environment and changing social environment around sex discrimination. These updates will help contractors understand their obligations and responsibilities on the issue of sex discrimination and harassment in the workplace.

OFCCP’s new sex discrimination guidelines define “sex” to include pregnancy, childbirth, or related medical conditions; gender identity; transgender status; and sex-stereotyping. The update clarifies sex-based discriminatory practices in a list that includes:

  • Differential treatment between married and unmarried persons
  • Men and/or women with children
  • Firing employees for being unmarried parents
  • Treating men and women differently with regard to flexibility arrangements
  • Steering employees into roles on the basis of sex
  • Gender-based pay disparities

In keeping with past regulations and EEOC’s guidance, the final rule prohibits discrimination on the basis of sex except as a bona fide occupational qualification (BFOQ). Specifically prohibited is harassment based on gender identity or transgender status. A clarification is also made that harassment based on sex-stereotypes constitutes sexual harassment.

Protection is provided for family related caregiving for men and women. Fair workplace practices are also encouraged with a rule requiring equality in fringe benefits as well as opportunities for employment training and promotions.

Restrooms and other Facilities

The final rule requires contractors to allow workers to use bathrooms, changing rooms, showers, and similar facilities consistent with the gender with which the workers identify. While not required, the Best Practices section recommends that all single user restrooms and facilities be designated as sex-neutral.

Best Practices

The amended OFCCP sex discrimination regulations include an appendix of Best Practices. These voluntary recommendations include:

  • The use of gender neutral job titles
  • Designation of all single user restrooms, showers and changing rooms as sex-neutral
  • Light duty or modified job assignments due to pregnancy, childbirth or related medical conditions as a form of accommodation

Conclusion

Since many contractors are already subject to the requirements of Title VII of the Civil Rights Act, OFCCP anticipates that many have already incorporated the requirements of the final ruling into their employment practices. For further information on the Final Rule on 41 CFR 60-20 please view the following resources:

OFCCP’s Sex Discrimination Regulations Fact Sheet
Frequently Asked Questions
Comparison to Old Sex Discrimination Guidelines