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Office of Federal Contract Compliance Programs
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Office of Federal Contract Compliance Programs (OFCCP)

 

Frequently Asked Questions (FAQs)
Discrimination on the Basis of Sex

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has published revised regulations that update our sex discrimination guidelines from 1970 to align with current law under Title VII of the Civil Rights Act of 1964 and address the realities of today’s workplaces. The regulations deal with a variety of sex–based barriers to equal opportunity, including compensation discrimination, sexual harassment, failure to provide workplace accommodations for pregnant workers, and family caregiving discrimination. The updated regulations apply to all covered federal contractors and subcontractors. Additional information about the regulations and sex discrimination is provided in the following Frequently Asked Questions.


General Information

  1. Where can I find a copy of the regulations?
  2. Why did OFCCP revise its Sex Discrimination Guidelines?
  3. What do I do if I think my employer is a federal contractor and has discriminated against me because of my sex?

 

Coverage Questions

  1. Which employers are covered by the regulations?
  2. Which individuals are covered by the regulations?
  3. If I am a federal grant recipient, and not a contractor, am I subject to the regulations?

 

Implementation Questions

  1. What are contractors required to do differently as a result of the regulations?
  2. Under the regulations, do federal contractors have to make changes to the Equal Opportunity Clause?
  3. The regulations include a “best practices” appendix. Are contractors required to comply with this section?

 

Definitions

  1. What does the term “sex discrimination” include?
  2. What does the term “fringe benefits” mean?
  3. What does the term “harassment because of sex” include?

 

Discrimination Based on Pregnancy, Childbirth, or Related Medical Conditions

  1. What do the regulations say about contractors’ obligations to provide accommodations for pregnancy and related conditions?

 

Other Issues Involving Sex Discrimination

  1. Do the regulations prohibit facially neutral employment policies and practices that have a “disparate impact” on the basis of sex?
  2. Do the regulations prohibit sex discrimination against men?

 

Relationship to Other Laws

State and Local Nondiscrimination Laws

  1. How do the regulations affect employers in state or local jurisdictions that have their own laws that prohibit discrimination on the basis of sex?

 

Title IX

  1. Many colleges and universities are federal contractors. How do the regulations apply to those educational institutions that are federal contractors?

 

Religious Employers and Religious Exemptions

  1. How does E.O. 11246 apply to religious organizations?
  2. How does the Religious Freedom Restoration Act (RFRA) apply to these regulations?

 

Technical Assistance and Public Education

  1. What does OFCCP do to provide technical assistance?
  2. How do I sign up to participate in these events?
  3. What should I do if I have a question that is not answered by OFCCP’s regulations or other materials?

 

General Information

1. Where can I find a copy of the regulations?

The regulations are available on the OFCCP Web site at https://www.dol.gov/ofccp/sexdiscrimination.html.

2. Why did OFCCP revise its Sex Discrimination Guidelines?

The Sex Discrimination Guidelines were adopted in 1970 and had not been substantively changed since then. Since 1970, employer policies and practices, the nature and extent of women’s participation in the labor force, and applicable statutes and case law have changed significantly, leaving those guidelines outdated and inaccurate. Revised regulations were needed to address present–day workplace practices and issues and to align contractors’ obligations with current law.

3. What do I do if I think my employer is a federal contractor and has discriminated against me because of my sex?

You may file a discrimination complaint with OFCCP by:

  • Completing and submitting a form online through OFCCP’s Web site;
  • Completing a form in person at the OFCCP office that covers the location where the alleged discrimination occurred; or
  • Mailing or faxing a completed form to the OFCCP regional office that covers the state where you live or work.

The complaint form is available online at https://www.dol.gov/ofccp/regs/compliance/pdf/pdfstart.htm and in paper format at all OFCCP offices. To find the office nearest you, visit the online listing of OFCCP offices at https://www.dol.gov/ofccp/contacts/ofnation2.htm. You do not need to know with certainty that your employer is a federal contractor to file a complaint. OFCCP will determine whether the company is a federal contractor once it has received your complaint.

You must file your complaint within 180 days from the date of the alleged discrimination, unless the filing date is extended for a good cause shown. Some examples of what might be good cause include the existence of some extraordinary circumstance that prohibited you from filing before the deadline such as a significant health issue, military deployment, incarceration, or possibly being unaware of the discrimination. In addition, you must remember to sign your completed complaint form. If you fail to do so, OFCCP will still take your complaint but an OFCCP investigator will ask you to sign the form during a follow–up interview.

Please note that OFCCP may refer complaints to the U.S. Equal Employment Opportunity Commission (EEOC).

 


 

Coverage Questions

1. Which employers are covered by the regulations?

The regulations generally apply to any business or organization that (1) holds a single federal contract, subcontract, or federally assisted construction contract or subcontract in excess of $10,000; (2) holds federal contracts or subcontracts that have a combined total in excess of $10,000 in any 12–month period; or (3) holds government bills of lading, serves as a depository of federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount.

2. Which individuals are covered by the regulations?

The regulations protect the millions of employees and applicants, both male and female, who work or seek to work for federal contractors. Generally, it is not necessary that employees work on a federal contract to be covered; they need only work for a company that holds a covered federal contract or subcontract.

3. If I am a federal grant recipient, and not a contractor, am I subject to the regulations?

No. The regulations generally apply to employers that are contractors with the Federal government, as well as to construction contractors working on federally–assisted construction projects, with covered contracts in excess of $10,000. The regulations do not apply to grant recipients or non–construction recipients of federal financial assistance.

 


 

Implementation Questions

1. What are contractors required to do differently as a result of the regulations?

The regulations generally align OFCCP’s regulations with Title VII of the Civil Rights Act of 1964, as interpreted by courts and the EEOC. Because most covered contractors are subject to Title VII or to similar state laws, most contractors are already subject to many of these provisions and must continue complying with these laws, regulations, and court rulings.

The former Guidelines were extremely outdated—they had not been amended substantively since they were adopted in 1970—and no longer provided accurate or sufficient guidance to contractors regarding their nondiscrimination obligations. The regulations clarify contractors’ obligations, brings them up–to–date, and aligns them with antidiscrimination law, eliminating the confusion and ambiguity that resulted from the former Guidelines.

2. Under the regulations, do federal contractors have to make changes to the Equal Opportunity Clause?

No, the regulations do not require any changes to the Equal Opportunity Clause.

3. The regulations include a “best practices” appendix. Are contractors required to comply with this section?

No, the regulation’s “best practices” appendix recommends a number of practices for contractors to consider. If adopted, these practices can contribute to the establishment and maintenance of workplaces that are free of unlawful sex discrimination. But adoption of these practices is not required.

 


 

Definitions

1. What does the term “sex discrimination” include?

The term “sex discrimination” includes, but is not limited to, discrimination on the basis of sex; pregnancy, childbirth, or related medical conditions; harassment; and sex stereotyping.

2. What does the term “fringe benefits” mean?

The regulations define the term “fringe benefits” based on the EEOC’s Guidelines for Discrimination Because of Sex. This definition of “fringe benefits” includes, but is not limited to, “medical, hospital, accident, life insurance, and retirement benefits; profit–sharing and bonus plans; leave; and other terms, conditions, and privileges of employment.”

3. What does the term “harassment because of sex” include?

The term “harassment because of sex” includes sexual harassment (including sexual harassment based on gender identity); 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.

 


 

Discrimination Based on Pregnancy, Childbirth, or Related Medical Conditions

1. What do the regulations say about contractors’ obligations to provide accommodations for pregnancy and related conditions?

To reflect the Supreme Court decision in Young v. United Parcel Service, the regulations specify that denying accommodations for pregnancy, childbirth, or related medical conditions is unlawful disparate treatment where (i) the contractor denies accommodations only to employees affected by pregnancy, childbirth, or related conditions; (ii) the contractor provides accommodations to other employees whose ability or inability to perform their job duties is similarly affected, the denial of accommodations to employees affected by pregnancy, childbirth, or related medical conditions imposes a significant burden on those employees, and the contractor’s asserted reasons for denying accommodations do not justify that burden; or (iii) intent to discriminate is otherwise shown, for example, by evidence of discriminatory statements made by managers when denying requested accommodations.

The regulations also address contractors’ accommodations policies and practices that have a disparate impact on employees affected by pregnancy, childbirth or related medical conditions. It requires contractors that deny accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions to ensure that such policies or practices do not have an adverse effect on women unless they are shown to be job–related and consistent with business necessity. For example, where a contractor’s policy of offering light duty only to employees with on–the–job injuries results in men being offered accommodations when they cannot perform their duties, but women affected by pregnancy, childbirth, or related medical conditions not being accorded accommodations, the policy would be impermissible unless the contractor could show that limiting accommodations in this way was job–related and consistent with business necessity.

 


 

Other Issues Involving Sex Discrimination

1. Do the regulations prohibit facially neutral employment policies and practices that have a “disparate impact”on the basis of sex?

Yes, the regulations prohibit facially neutral employment policies that have a disparate impact on the basis of sex if the policies or practices are not job–related and consistent with business necessity. This “disparate–impact analysis” is firmly established in employment discrimination law and is expressly incorporated in OFCCP regulations, including the revised regulations. Where a contractor’s policy or practice has the effect of disproportionately excluding women from employment opportunities, the contractor has the burden of proving that the policy or practice is job–related and consistent with business necessity. If the contractor cannot make this showing, its policy or practice will be found to violate its non–discrimination obligations under E.O. 11246 even in the absence of proof of intentional bias.

2. Do the regulations prohibit sex discrimination against men?

Yes. In keeping with Title VII, E.O. 11246 prohibits sex–based discrimination against women and men. Sex stereotyping and other forms of sex discrimination harm women and men, for example, by perpetuating the mistaken view that members of one sex are inherently better qualified or suited for certain kinds of jobs, or that only workers of one sex may need family leave or flexible work arrangements.

 


 

Relationship to Other Laws

State and Local Nondiscrimination Laws

1. How the regulations affect employers in state or local jurisdictions that have their own laws that prohibit discrimination on the basis of sex?

As with state and local laws prohibiting employment discrimination on other bases, the regulation’s prohibition of discrimination on the basis of sex does not preempt state and local prohibitions of discrimination on the basis of sex. The regulations set a “floor” in terms of protection against discrimination on the basis of sex. If state or local law provides greater protections to applicants or employees, the regulations do not generally relieve a contractor from its obligations under that law.

Title IX

2. Many colleges and universities are federal contractors. How do the regulations apply to those educational institutions that are federal contractors?

Because E.O. 11246 and its regulations prohibit discrimination in employment, the sex discrimination regulations apply to the employment practices of covered educational institutions. The regulations do not address discrimination against current or prospective students in education programs or activities. Schools, colleges, and universities that have questions about their obligations under Title IX of the Education Amendments of 1972 should contact the Department of Education’s Office for Civil Rights (https://www2.ed.gov/about/offices/list/ocr/index.html). E.O. 11246 also applies to certain students who are employed by covered educational institutions. OFCCP follows Title VII principles in determining whether an allegation of discrimination under E.O. 11246 relates to a student’s status as an employee.

 


 

Religious Employers and Religious Exemptions

1. How does E.O. 11246 apply to religious organizations?

E.O. 11246, as amended, applies only to employers that are federal contractors or federally assisted construction contractors. Religious organizations that are not contractors, but recipients of grant funds, are not subject to E.O. 11246.

On the other hand, if a religious organization does hold a covered contract, it is prohibited from discriminating on any of the protected bases listed in E.O. 11246, as amended. E.O. 11246 and OFCCP regulations provide an exception that permits religious organizations to prefer to employ only members of a particular religion. The “ministerial exception” may apply as well. For more information about application of E.O. 11246 to religious organizations, including about the “ministerial exception,” please visit https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html.

2. How does the Religious Freedom Restoration Act (RFRA) apply to these regulations?

The Religious Freedom Restoration Act (RFRA) applies to all federal laws. If a contractor seeks an exemption to E.O. 11246 pursuant to RFRA, OFCCP will consider that request based on the facts of the particular case. OFCCP will do so in consultation with the Solicitor of Labor and the Department of Justice, as necessary. There is no formal process for invoking RFRA specifically as a basis for an exemption from E.O. 11246. Insofar as the application of any requirement under this part would violate RFRA, such application shall not be required.

 


 

Technical Assistance and Public Education

1. What does OFCCP do to provide technical assistance?

OFCCP will publish compliance assistance materials such as fact sheets and additional “Frequently Asked Questions,” as needed. ¬†From time to time, OFCCP also hosts Webinars and stakeholder events on sex discrimination and other topics.

2. How do I sign up to participate in these events?

OFCCP will provide advance notice of any upcoming educational opportunities on its Web site, along with information as to how to participate. To view scheduled technical assistance webinars and stakeholder events visit the DOL Events Calendar at https://www.dol.gov/calendar/. To view recordings and transcripts of previously conducted technical assistance webinars visit the OFCCP Public Webinars page at https://www.dol.gov/ofccp/regs/compliance/final_rules_webinars.htm.

3. What should I do if I have a question that is not answered by OFCCP’s regulations or other materials?

Contractors and other stakeholders may always reach out to OFCCP’s Customer Service Desk with questions by calling 1–800–397–6251, or by going to the “Contact” tab on the OFCCP Web site at https://www.dol.gov/ofccp/.