When conducting an on-site review, COs must request copies of the contractor’s policies covered by 41 CFR Part 60-20 and examine whether the contractor implemented its employment activities and decisions in a manner consistent with Part 60-20. COs must interview contractor officials and employees regarding the implementation of the contractor’s policies, and investigate for any evidence of sexual harassment or other types of discrimination based on sex. The CO must include information obtained during the on-site review in the SCER in Part C.
The discussion below addresses six of the areas for which COs must review the contractor’s policies: conditions of employment, distinctions based on sex stereotypes (e.g., caregiving responsibilities), bona fide occupational qualifications (BFOQs), employment exclusions, compensation discrimination and employment advertising.
a. Conditions of Employment. COs must examine whether contractor policies make prohibited distinctions in conditions of employment based on sex, including on the basis of pregnancy, childbirth or related medical conditions, or on the basis of sex-based stereotypes. Examples of such unlawful disparate treatment include steering women into less desirable jobs on the basis of sex and maintaining seniority lists on the basis of sex. Contractors also must not make employment decisions based on stereotypes about how males and females are “supposed” to look, speak or act. Such employment decisions are a form of sex discrimination prohibited by Executive Order 11246, as amended. For example, a contractor must not deny opportunities to women with children based on the sex-stereotyped belief that women with children should not or will not work long hours. In addition, COs must examine whether the contractor’s facially neutral policies and practices have an adverse impact on the basis of sex and, if they do, whether they are job-related and consistent with business necessity. For example, it is unlawful sex discrimination to impose height or weight qualifications that are not necessary to the performance of the job and that negatively impact women substantially more than men.
COs must also examine written policies and conduct interviews with contractor staff and employees regarding the implementation of policies and practices to identify whether distinctions between married and unmarried people apply equally to both sexes, including distinctions between single parents and married parents based on sex. Even if the policies are facially neutral, COs must examine whether such policies have an adverse impact on the basis of sex and, if they do, whether those policies are job-related and consistent with business necessity.
b. Distinctions Based on Sex-Based Stereotyping.142 As noted above, differential treatment for an employment-related purpose based on sex-based stereotypes is a violation of Executive Order 11246. COs must assess contractor policies and practices to ensure that sex-based stereotypes are not written into the policies. For example, it is prohibited to deny fathers access to family-friendly policies like workplace flexibility that employers provide to mothers, based on stereotypes about fathers’ roles in caregiving. Similarly, it is prohibited to deny opportunities to mothers based on the sex-stereotyped belief that women with children should not or will not work long hours.
c. BFOQs. Contractors may not hire or employ individuals on the basis of sex unless sex is a BFOQ reasonably necessary to the normal operation of the contractor’s particular business or enterprise.143 As a part of most on-site reviews, COs examine job qualifications as stated by the contractor. Under Title VII, sex has been found to be a BFOQ in extremely rare instances. Among them are:
- Authenticity. Jobs involving a need for authenticity or genuineness, such as actors or models.
- Personal Privacy. Jobs where the performance of essential job elements would entail substantial invasion of personal privacy (e.g., a permanent restroom attendant). This is limited to situations where the normal operation of the contractor’s business depends on the employee being the same sex as its employees or customers and there is no other way to ensure privacy. This is different from customer preference. For example, a contractor cannot refuse to hire female salespeople in the belief that male customers will not accept them.
d. Employment Exclusions.
- Hazardous Jobs. Contractors may not exclude women from jobs they may believe are dangerous or unsuitable for women to perform unless sex is a BFOQ.
- Reproductive Hazards. OFCCP follows Title VII principles when determining whether a policy excluding women from a job because of a concern about reproductive hazards is discriminatory. If a question relating to reproductive hazards arises during a compliance evaluation, COs must discuss the issue with their supervisors.
e. Compensation Discrimination. COs must examine possible compensation discrimination issues. Compensation discrimination encompasses discrimination regarding salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement. Contractors may not make distinctions in compensation or access to earnings opportunities or better paying job opportunities based on sex. Contractors also may not implement compensation practices that have an adverse impact on the basis of sex and are not shown to be job-related and consistent with business necessity. Whether because of the desk audit analysis of compensation data or a focused review of compensation practices, if COs identify areas for investigation, they must gather additional information and conduct interviews regarding the contractor’s compensation policies and practices. Section 2E03 has additional information on compensation.
f. Employment Advertising. COs must examine the contractor’s advertisements in newspapers, online and in other media. The advertisements must not recruit or advertise for individuals for certain jobs on the basis of sex. Use of sex-specific terms for jobs (such as “linemen”) is suspect but is not automatically a violation of Executive Order 11246. Where sex-specific language is used in conjunction with prominent language that clearly indicates the contractor’s intent to invite applications without regard to applicants’ sex, COs should not find a violation.
142. 41 CFR 60-20.7.
143. 41 CFR 60-20.3.