The U.S. Department of Labor issued a final rule revising its sex discrimination guidelines for federal contractors found at 41 CFR Part 60-20. The final rule is effective August 15, 2016, is the first significant change to the guidelines since 1970, and it clarifies DOL positions with respect to issues of compensation, pregnancy, and harassment among others. Unsurprisingly given recent amendments to EO 11246, the Rule also provides specific guidance with respect to issues regarding sexual orientation and gender identity.
While it will take time for contractors and counsel to digest all 195 pages of the final Rule notice, one section of immediately accessible interest is the Rule’s appendix concerning “Best Practices,” which, while technically voluntary, provide insight into the DOL’s perspective and priorities with respect to sex discrimination. Specifically, the Rule states the following as best practices for contractors:
- Avoiding the use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available
- Designating single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral
- Providing, as part of the broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions
- Providing appropriate time off and flexible workplace policies for men and women
- Encouraging men and women equally to engage in caregiving-related activities
- Fostering a climate in which women are not assumed to be more likely to provide family care than men
- Fostering an environment in which all employees feel safe, welcome, and treated fairly by developing and implementing procedures to ensure that employees are not harassed because of sex. Examples of such procedures include:
- Communicating to all personnel that harassing conduct will not be tolerated
- Providing anti-harassment training to all personnel
- Establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.
While certain of the prescriptions fall squarely within the realm of “Personnel Management 101,” the recommendation regarding gender neutral restrooms and similarly facilities furthers the theme of 2016 as the “Year of The Restroom Wars”.
Although the guidance is not intended to substantively change contractors’ legal obligations, contractors would be well counseled to take the opportunity to review their leave and benefit policies and practices to ensure that they are in line with the DOL’s regulations and its emphasis on gender neutrality with respect to all employment practices.
About the Author:
David Warner is a seasoned counselor in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David has extensive experience representing contractors in affirmative action, Davis-Bacon Act, and Service Contract Act compliance audits. He also represents businesses with regard to wage and hour compliance, DOL audits, and litigation.
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