OFCCP Webinar Recap: Filing a Complaint Based on Sexual Orientation and Gender Identity

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

2. 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

3. Restroom access:
   • Federal contractors must allow applicants and employees to use restrooms consistent with their gender identity

4. 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

5. 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