2K Compliance with Sex Discrimination Regulations
It is unlawful for a contractor to discriminate against any employee or applicant for employment because of sex.135 The term sex includes, but is not limited to, pregnancy, childbirth, or related medical conditions; gender identity;136 transgender status; and sex stereotyping.137 In general, the contractor may not make any distinction based on sex in recruitment, hiring, firing, promotion, compensation, hours, job assignments, training, benefits or other terms, conditions or privileges of employment.138
Discrimination on the basis of sex may occur, for example, when the contractor makes a distinction between married and unmarried persons that is not applied equally to men and women, or denies women with children an employment opportunity that is available to men with children. Other examples139 of unlawful disparate treatment include:
- Steering women into lower-paying or less desirable jobs on the basis of sex;
- Maintaining seniority lines on the basis of sex; or
- Distinguishing on the basis of sex in apprenticeship or other formal or informal training programs.
Employment policies or practices that have an adverse impact on the basis of sex, and are not job-related and consistent with business necessity, also violate Executive Order 11246. Some policies or practices that exemplify such unlawful disparate impact on the basis of sex include:140
- Relying on recruitment or promotion methods, such as “word-of-mouth” recruitment or “tap-on-the-shoulder” promotion, that have an adverse impact on women where the contractor cannot establish that they are job-related and consistent with business necessity; or
- Height and/or weight restrictions that are not necessary to the performance of the job and that negatively impact women substantially more than men.
135. See 41 CFR Part 60-20.
136. Gender identity is also covered as an independent protected category by EO 11246.
137. 41 CFR 60-20.2(a).
138. 41 CFR 60-20.2(b). The exception is where sex is a bona fide occupational qualification reasonably necessary to the normal operation of a contractor’s particular business or enterprise. See Section 2K01.
139. For a longer list of examples of unlawful sex-based disparate treatment, see 41 CFR 60-20.2(b).
140. 41 CFR 60-20.2(c).
COs are also reminded that discrimination on the basis of pregnancy, childbirth, or related medical condition, including childbearing capacity, is a form of unlawful sex discrimination.141 A few examples of unlawful pregnancy discrimination are:
- Refusing to hire pregnant women or women of childbearing capacity, or subjecting these women to adverse employment treatment because of their pregnancy or their capacity to bear children;
- Firing female employees or requiring them to go on leave because they become pregnant or have a child;
- Limiting pregnant women’s job duties based solely on the fact that they are pregnant, or requiring a doctor’s note in order for a pregnant woman to continue working;
- Providing employees with health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth, and related medical conditions to the same extent that hospitalization and other medical costs are covered for other medical conditions; and
- Denying alternative job assignments, modified duties, or other accommodations to an employee who is temporarily unable to perform some of her job duties because of pregnancy, childbirth, or related medical conditions when:
- Such assignments, modifications, or other accommodations are provided to other employees whose abilities or inabilities to perform some of their job duties are similarly affected;
- The denial of the accommodations imposes a significant burden on employees affected by pregnancy, childbirth or related medical conditions; and
- The contractor’s asserted reason for denying accommodations to the worker does not justify that burden.
141. 41 CFR 60-20.5.
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.
During the on-site review, COs gather information and conduct interviews to determine whether the contractor discriminates on the basis of sex in the provision of leave and fringe benefits in violation of OFCCP’s regulations at 41 CFR Part 60-20. COs should also be familiar with the FMLA, discussed below, as well as understand how the application of policies or the absence of policies may result in discrimination and harassment.
a. FMLA. The FMLA was enacted in 1993.144 In part, the purpose of FMLA is to address the needs of families and caregivers as affected by the demands of the workplace, specifically addressing leave issues. OFCCP and the Department’s WHD, which enforces FMLA, entered into an MOU.145 Under this MOU, OFCCP incorporates an FMLA inspection into its compliance evaluation and complaint investigation procedures, as discussed below.
b. Family Leave and Pregnancy and Disability Leave. The CO will examine the contractor’s policy regarding leave in light of the prohibition of discrimination based on sex, including pregnancy and FMLA.
Family Leave Required under the FMLA. During the course of a routine compliance evaluation or complaint investigation, the CO will determine whether the FMLA notice is posted and whether written guidance about the provisions of FMLA is provided in accordance with 29 CFR 825.300. Incidents of suspected noncompliance with these provisions are referred to WHD. In addition, the CO may examine the application or use of these policies by the contractor for any adverse treatment of, or adverse impact on, any specific group protected by OFCCP’s legal authorities. This is distinct from enforcing violations of family leave requirements.
The FMLA requires employers of 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave for qualified workers for a worker’s pregnancy or own serious health condition, or when a worker becomes a new parent. Covered employers are also required to provide FMLA leave to employees caring for a covered family member with a serious health condition (e.g., a mother caring for a child with cancer). Additionally, various states have their own family and medical leave laws that may provide additional leave or additional coverage.
- Pregnancy Disability Leave. The CO must examine whether the contractor has a sick leave or disability leave policy (written or unwritten), and leave for conditions associated with childbirth.146 The CO must also examine whether the contractor’s leave policy, or lack thereof, has an adverse impact on employees of one sex and is not justified by business necessity. These requirements apply regardless of whether the contractor is a covered contractor under the FMLA or whether the employee qualifies for FMLA leave.
c. Fringe Benefits. OFCCP’s regulations state that it is unlawful for a contractor to discriminate on the basis of sex with regard to fringe benefits. The term “fringe benefits” is defined in 41 CFR 60-20.6 as including medical, hospital, accident, life insurance and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions and privileges of employment. The greater cost of providing a fringe benefit to members of one sex is not a defense to a contractor’s failure to provide benefits equally to members of both sexes. COs must, therefore, obtain information to determine whether a contractor is providing equal employee benefits for men and women, regardless of cost.
144. Family and Medical Leave Act, Pub. L. 103-3 (29 U.S.C. chapter 28).
145. The MOU between OFCCP and WHD was signed in September 1993.
146. “Leave” as used here includes but is not limited to eligibility for leave, duration of leave, accrual of seniority and reinstatement rights.
Sexual harassment, as well as harassment based on race, color, religion, sexual orientation, gender identity or national origin, is a violation of the nondiscrimination provisions of Executive Order 11246. During the on-site review, COs must be alert for any indications of sexual harassment.147 OFCCP follows Title VII principles when determining whether sexual harassment has occurred. Unwelcome sexual advances, requests for sexual favors, offensive remarks about a person’s sex, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
- Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual; or
- Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.148
147. See 41 CFR 60-20.8.
148. 41 CFR 60-20.8(a). Harassment based on sex also includes harassment based on pregnancy, childbirth or related medical conditions; and harassment that is not sexual in nature but that is because of sex or sex-based stereotypes. 41 CFR 60-20.8(b).