On April 8th of last week, the OFCCP presented another webinar on ‘Filing a Complaint Based on Sexual Orientation and Gender Identity.’ Below are the highlights from this webinar:

Pat Shiu, Director, OFCCP, kicked off the webinar with the following summary:

  • Gender identity and sexual orientation regulations apply to:
  • Federal contractors and subcontractors with a federal contract > $10,000
  • Affects every establishment – not just those responsible for fulfillment of the federal contract
  • Applies to all new or modified federal contracts and subcontracts on or after April 8, 2015


How Title VII applies to LGBT regulations from the OFCCP standpoint:

  • Title VII prohibits discrimination with regard to race, color, religion, sex and national origin
  • Sex Discrimination has been interpreted to include Gender Identity and Sexual Orientation
    • Even though specific language regarding sex discrimination is not included in Title VII
  • Complaints alleging sexual orientation or gender identity discrimination are considered dual-filed for purposes of Title VII
  • OFCCP ‘stands in the shoes’ of the EEOC to investigate and resolve the Title VII component of a complaint


OFCCP Accepts:

  • Individual complaints
  • Class complaints
  • Complaints filed during compensation evaluations


OFCCP Coordinates with the EEOC:

  • Referred to EEOC if company is NOT a federal contractor
  • Shares information related to complaint if it is not transferred
  • Jointly investigates or transfers cases in appropriate cases (no indication of what determines ‘appropriateness’)
  • Case by case basis can be referred to Solicitor’s office


OFCCP said a number of times during the webinar that they are the ‘neutral fact-finder’ in complaints:

The webinar was primarily held for potential complainants to educate them on how to file an LGBT claim and the types of resolution that could be found, including ‘make-whole relief’ or other corrective remedies.

Most importantly, for federal contractors, the OFCCP did report on various FAQ’s they have received:

  1. Benefits for same-sex couples:
    • Place of Celebration Rule – eliminates the ‘place of business’ or ‘place of residence’ rule
    • Place of business or place of residence rule may constitute prohibited disparate impact discrimination
    • Place of Celebration Rule
      • Based on the legality of the same-sex marriage in the state the marriage took place
      • It doesn’t matter if the couple moves to a state that does not recognize same-sex marriage; they still must be provided the same benefits as heterosexual couples
    • Civil unions or domestic partnerships
      • Benefits must be provided for these couples if they are provided for other non-married couples
  1. May an employer ask a transgender applicant or employee to prove gender identity?
    • No
    • Cannot ask for any documentation that is not requested from other employees
    • If this information is requested for name changes or medical leave, then you can ask for this information
  1. Restroom access:
    • Federal contractors must allow applicants and employees to use restrooms consistent with their gender identity
  1. Title VII Religious Exemption:
    • A religious entity may have an exemption under Executive Order 11246 (this only applies to federal contractors and subcontractors)
    • Religious organizations who are not federal contractors or subcontractors are not covered by this exemption
    • See 41 CFR § 60-1.5(a)5
  1. EEO Tag Line:
    • 2 choices:
      • EOE Minorities/Females/Protected Veterans/Disabled
      • Include all protected classes in paragraph form; if all protected classes are listed, Sexual Orientation and Gender Identity MUST be included
      • LGBT should NOT be used

Additional information:

  • Watch for additional webinars will be provided
  • Outreach and education to the community is critical, and the OFCCP will be providing assistance in future webinars
  • Additional FAQ’s will continue to be shared
Looking to learn more about the regulations and network with other OFCCP compliance professionals? Attend the DirectEmployers 2015 Annual Meeting & Conference in addition to the Affirmative Action Briefing pre-conference event taking place May 13-15, 2015 in Indianapolis! Learn more and register at DEAM15.DirectEmployers.org.
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Candee Chambers
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