Last week I promised to write about state and local laws prohibiting discrimination based on sexual orientation and gender identity. I will still do that –next week. A colleague reminded me that just Monday, December 3 the Office of Federal Contract Compliance Programs (OFCCP) made an important contribution to our current topic. While Title VII may not yet prohibit discrimination based on sexual orientation or gender identity, federal Affirmative Action laws now do. Is that significant? Does that impact you as an employer? Join The EmpLAWyerologist after the jump and find out….
Federal Affirmative Action laws apply to federal contractors and sub-contractors. You are a federal contractor if you a) hold a single contract with a federal government agency valued in excess of $10,000; or b) hold a federal sub-contract (more on this in just a moment) valued in excess of $10,000; or c) hold a federally assisted construction contract in excess of $10,000. It should be fairly easy for you to know if you meet the first or third test. How do you know if you are a federal sub-contractor? If you do work for a client that is a federal contractor and the work you do is necessary for the contractor to perform the services it performs under its contract with the federal agency, you may be a federal sub-contractor. This second prong can capture a number of unsuspecting businesses. Ultimately if the OFCCP decides you are a federal sub-contractor it’s not so easy to escape their jurisdiction. I am not going to get further into that here, although I may very well do so in a separate post in the not-so-distant future.
Assuming that you are a federal contractor, or sub-contractor, now what? You must comply with federal Affirmative Action requirements, which now prohibit you from discriminating against applicants and employees on the basis of their sexual orientation or gender identity. (Depending on the size of your company and your contract or sub-contract, you may have additional Affirmative Action obligations, but we do not need to focus on that right now.)
How did the new protections come about? President Obama effectively made new law, by issuing an Executive Order prohibiting this type of discrimination by federal contractors and sub-contractors, and ordered the OFCCP to issue what are known as Final Rules implementing this Order. Wait a minute. How can the President do that? Isn’t it for Congress to pass federal laws? Yes, but the President can issue orders that help officers and agencies of the Executive Branch manage their operations. The OFCCP is a division of the United States Department of Labor, and the Department of Labor is an agency within the Executive Branch. That is why the President, apparently frustrated with the lack of progress in passing the farther reaching Employment Non-Discrimination Law (ENDA) issued Executive Order 13672, which, has the force of law with respect to federal government contractors. OK, enough Government/Civics 101!
Is that it? Are the Executive Order and its implementing rules simply another “thou shalt not”? Not exactly. If you are a federal contractor or sub-contractor, you have to include what is called an Equal Employment Opportunity (EEO) clause in your contracts and purchase orders. An E.E.O. clause generally reads as follows:
This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation , gender identity, national origin, protected veteran status or disability.
The italicized language, is, of course new language that must be included to comply with the new requirements. The Final Rules take effect 120 days after their publication in the Federal Register, which is supposed to have occurred on December 5, 2014, rendering April 4 the effective date (give or take, since that falls out on a Saturday). Wait, there’s more. The oversight for these laws is similar to that associated with Title VII and other federal equal employment opportunity laws. Employees or applicants who believe they have been discriminated against in violation of these new protections (and the implementing rules) can file a complaint with the OFCCP, which can take similar measures to the EEOC. Since the EEOC has also taken the position that sexual orientation and gender identity discrimination violate Title VII, employees and applicants also have the option of filing an EEOC charge. (Click here to review last week’s post).
Again, the Executive Order and Final Rules only apply to employers who are federal contractors or sub-contractors. You may not have a contract with a federal government agency, but you should check to see if you do work for a client that does, and then see if any of that work could be necessary for your client to perform the work it does for the government agency. If so, then you are a federal sub-contractor, and these requirements will apply to you. If so, or if you’re not sure, you should consult with an employment attorney who is familiar with Affirmative Action requirements to learn what you need to do.
If you know that you are not a federal contractor of sub-contractor, are these Final Rules important? Quite possibly. They provide additional not-so-subtle pressure on employers to refrain from this type of discrimination and they also exert some not-so-subtle pressure either on Congress to pass ENDA or the US Supreme Court to review this very issue should another employer petition for it to do so.
Barring any pressing and unforeseen developments, watch for The EmpLAWyerologist’s post next week about state and local laws prohibiting sexual orientation and gender identity discrimination. See you then!
If you or your company would like to learn more about co-employment and minimizing joint liability, click here to download my webinar on Joint Employment, which aired at 1 p.m EST Tuesday November 25, 2014.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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