The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
Monday, May 2, 2016:
EEOC ”Doubles Down” In Transgender Bathroom Debate With New Factsheet. The EEOC has seized upon the national debate North Carolina’s H.B. 2 law has engendered to re-emphacize its view that Title VII mandates transgender bathroom access based on one’s biological identity or destination (i.e. biological male at birth transitioning to become a biological female may use the female bathroom during transition). H.B. 2, however, requires transgender individuals to use the bathroom of the sex displayed on their birth certificate and not that of their changing biological identity. The EEOC’s new Factsheet for employers explains the Commission’s view, first expressed in 2015 in the Lusardi case decision, that Title VII of the Civil Rights Act both protects transgender employees in the workplace and provides transgender employees (and presumably applicants) with equal access to bathrooms corresponding with their gender identity..
The EEOC noted “gender-based stereotypes, perceptions, or comfort level” must not interfere with the ability of any employee to work free from discrimination, including harassment. Additionally, the Commission confirmed that these protections operate to address conduct in the workplace, not personal beliefs.
The EEOC also affirmed standard Title VII “state pre-emption” law by noting that “Contrary state law is not a defense under Title VII.” See more on this issue, below. The Commission’s view is that employers with establishments in North Carolina (and other states which might try to implement similar laws) subject to Title VII need to ensure gender identity is included as a protected class in their companies.
Tuesday, May 3, 2016: OFCCP Releases Factsheet Defining Sexual Orientation And Gender Identity. Executive Order 13672, signed on July 21, 2014, amended Executive Order 11246 prohibiting federal contractors from discriminating against employees and job applicants based on their sexual orientation or gender identity. This Rule (more commonly referred to as the LGBT Rule) was supposed to go into effect on April 8, 2015, however, OFCCP did not define the terms “sexual orientation” and “gender identity” in those regulations raising legal questions whether OFCCP could properly enforce them. Consequently, the Federal Acquisition Regulatory Council (FAR) published definitions in what became a Final Rule on December 4, 2015 (without change from their April 10, 2015 Interim Final Rule) amending and updating the Federal Acquisition Regulations (FARs) governing all federal contracting matters. While the OFCCP had previously adopted as its own and published the FAR Council definitions on the agency’s website in the form of FAQs, OFCCP’s new Factsheet expands the discussion by including an overview of OFCCP’s Final LGBT Rule, the definitions of “sexual orientation” and “gender identity” and an explanation of employee rights under the Rule.
Wednesday, May 4, 2016: EEOC, DOJ Take Aim At North Carolina’s ‘Bathroom Bill.’ The U.S. Department of Justice (DOJ) has also confirmed that Title VII law preempts contrary state employment laws and applies federal laws instead, as presaged by John Fox in our March 28, 2016 WIR.
In light of the EEOC’s release of its Factsheet on the issue of transgender bathroom access, the DOJ has also now entered the fray by writing a cease and desist letter to North Carolina’s Governor Pat McCrory alleging that H.B. 2 violates both Title VII and Title IX because it requires transgender individuals to use bathrooms corresponding to the gender on their birth certificates. DOJ asks the state to respond no later than May 9th as to whether it will remedy the alleged violations. Some commentators have suggested that if the state does not respond by May 9th, or if it does not affirm it will not comply with H.B. 2, North Carolina could face the loss of federal funding.
This issue is hardly over. Lambda Legal and the American Civil Liberties Union (ACLU) have filed a lawsuit challenging the legality of H.B. 2 on behalf of a University of North Carolina (UNC) employee and UNC student, a North Carolina Central University law professor, a UNC School of the Arts High School student and a married same-sex couple in Charlotte, NC. Peter Rann, a staff attorney with Lambda Legal, which advocates on behalf of LGBT individuals, confirmed that transgender individuals “…have the support of the federal government behind them.”
Wednesday, May 4, 2016: Fair Pay And Safe Workplaces Sent To OMB. The controversial Federal Acquisition Regulatory Council (FAR) Proposed Rule and Department of Labor guidance implementing the President’s Fair Pay and Safe Workplaces Executive Order (EO 13673) were submitted to the Office of Management and Budget (OMB) on May 4th for their review. Businesses which bid on contracts worth $500,000 or more will be required to disclose “administrative merits determinations” finding violations of one or more of 14 federal labor and employment laws as well as any state-law counterparts for the past three years before the contract bid for themselves AND for any covered federal subcontractors with whom they intend to include in the bid. Bids can then be denied based on the seriousness of the reported violations.
Business lobbyists and members of Congress are continuing to try to prevent this Proposed Rule from taking effect. Last week’s DE WIR highlighted the amendment Rep. John Kline (R-Minn.) introduced to the DoD budget bill in an effort to exempt the Department of Defense and the National Nuclear Safety Administration from this Rule.
The OMB will now start a review period that can last up to 90 days, or either the FAR Council or the OMB may extend the deadline. OMB could also return the proposal to any of the Executive Branch agencies the Rule would affect for further consideration. So again, time will tell what will happen with this “blacklisting” rule. With official submission to the OMB, however, it is most definitely moving forward.
Friday, May 6, 2016: Get Involved During DEAM16. During our upcoming annual meeting, attendees will have the opportunity to have their questions answered by your OFCCP Compliance Team: Candee Chambers, John C. Fox and Joyce Morgan. Please click here to provide any compliance-related questions you would like to have answered during our Q&A General Session no later than Friday, May 13.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email me at candee@directemployers.org with your ideas.
