RIP VAN WINKLE AWAKENS: OFCCP Issues New Sex Discrimination Guidelines

On June 14, 2016 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued new sex discrimination guidelines.  The last time it did so was in 1970.  To put that in perspective, in 1970 gasoline was 36 cents a gallon, the Beatles were still recording, telephones had dials on them, Don Draper was hooking up with his secretary, and Caitlyn Jenner was a 21-year-old man.  Needless to say, a lot of things have changed since then.  Small wonder, then, that OFCCP decided that it might be a good idea to update its advice to federal contractors on avoiding illegal sex bias in the workplace—advice that was last written the same year that Ford first introduced the Pinto.  What resulted was the regulatory equivalent of Rip Van Winkle awakening from a 46-year-long nap.

As a reminder, the OFCCP exists to police the anti-discrimination obligations of the approximately 500,000 companies who work as federal government contractors or subcontractors—companies that employ around 65 million Americans.  And the centerpiece of the OFCCP enforcement effort is Executive Order 11246.  That Order was signed by President Johnson in 1965, and it applies to every business that has at least $10,000 a year in federal government contracts.  Under EO 11246 it is illegal for government contractors or subcontractors to discriminate on the basis of a variety of protected characteristics, including sex.  Bottom line:  if your company does business with Uncle Sam, it is a virtual certainty that EO 11246 applies to it.  And OFCCP is the cop on the beat, tasked with ensuring that you comply with the law.

Given the foregoing, OFCCP’s providing its first comprehensive guidance on what it believes it takes to comply with EO 11246’s prohibition of sex discrimination in nearly half a century is the sort of thing that should matter to just about every VSRA member company—a lot.

The good news is that, by and large, there isn’t much new in OFCCP’s new guidelines.  Mostly, they reflect the agency’s catching up on 46 years of developments in the world of anti-discrimination law.  As a consequence, companies that currently are in compliance with Title VII of the 1964 Civil Rights Act, the Equal Pay Act, the Pregnancy Discrimination Act, their implementing regulations, and applicable case law will find themselves already within the scope of what the new OFCCP guidelines expect of them.  Indeed, rather than imposing any new rules or requirements, the new OFCCP guidelines actually provide employers a comprehensive summary of what the law already requires of them in regard to treating men and women alike.  In that sense, they stand as something of a handy “cheat sheet” describing the current state of the gender discrimination law (at least as it is viewed by the Executive Branch of the federal government).

One aspect of the new guidelines that VSRA member companies may find particularly helpful is their including a series of nonbinding suggestions for best practices that OFCCP believes can help prevent illegal workplace discrimination.  Among the recommendations the agency makes are the elimination of gender-specific job titles (such as “foreman” or “lead man”) when gender-neutral alternatives are available, designating single-user restrooms as sex-neutral (and allowing transgendered workers to use restrooms that conform to the gender with which they identify), and making sure that work-related fringe benefits are made equally available to both men and women.  Other helpful tools offered by OFCCP is a chart by which employers can compare the old 1970 guidelines with the new 2016 version, a Fact Sheet about the new guidelines, and a list of Frequently Asked Questions (and answers) pertaining to them.

According to OFCCP, the new guidelines, which can be found at www.dol.gov/ofccp/sexdiscrimination.html, serve to:

1.         Bring the old sex discrimination guidelines up to date;

2.         Provide protections related to pregnancy, childbirth and related medical conditions;

3.         Promote fair pay practices;

4.         Provide equal benefits to male and female employees participating in fringe benefit plans;

5.         Prohibit sexual harassment;

6.         Give men and women equal access to jobs and workforce development opportunities;

7.         Safeguard workers who provide caregiving to their loved ones;

8.         Protect transgender workers; and

9.         Prohibit discrimination based on sex stereotypes.

The new guidelines go into effect on August 15, 2016.  Savvy VSRA members will take the time to read through them and make sure they comply with them.  Otherwise, noncompliant contractors are in for a rude surprise when they next face an OFCCP compliance audit . . . or when one of their workers decides to pay a visit to the EEOC. 

Rip Van Winkle has awakened.  And, now that he has, it’s high time to listen carefully to what he has to say.

About the Author

Chris leads the firm’s Maritime Section.  He represents waterfront clients in a wide variety of matters, including admiralty and maritime law, maritime insurance defense, coverage, and subrogation, and marine employment law. 

Prior to entering private law practice in 1995, Chris served for sixteen years as a commissioned officer and law specialist in the United States Coast Guard, eventually reaching the rank of Commander. While on active duty, he spent three tours of duty at sea and commanded two ships. He also served an extended tour of duty with the U.S. Navy's Judge Advocate General Corps and later served as the principal assistant legal officer for the Coast Guard's Mid-Atlantic region.

Chris teaches classes in both Admiralty and Employment Law at the College of William & Mary, where he was the school's 2011-2012 St. George Tucker Adjunct Professor of Law.

Chris serves as the General Counsel of the International Association of Marine Investigators.  He also is a member of the Maritime Law Association, the Southeastern Admiralty Law Institute, the Mid-Atlantic Mariners Club, the Fort Lauderdale Mariners Club, and the Newport News Propeller Club.  Chris is a lifetime member and former Proceedings editor for the United States Naval Institute. 

A frequent speaker to various professional and industry groups, Chris also is an award-winning author on a number of maritime and legal topics.  

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