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Office of Federal Contract Compliance Programs

Office of Federal Contract Compliance Programs (OFCCP)

 

Frequently Asked Questions
EO 13672 Final Rule

On December 3, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule that will prohibit federal contractors from discriminating in employment on the basis of sexual orientation or gender identity. The Final Rule implements Executive Order (EO) 13672, signed by President Barack Obama on July 21, 2014, which adds sexual orientation and gender identity to the prohibited bases of discrimination in EO 11246. Additional information about the new Final Rule is provided in the below list of Frequently Asked Questions.

 

General Information

  1. You say the Final Rule applies to contracts entered into or modified on or after the effective date of the Final Rule. What are some examples of modifications to existing contracts?
  2. Will the new nondiscrimination requirements be added as new terms and conditions to all existing contracts (and thus serve as modifications to those contracts)?
  3. Under the Final Rule, what changes do federal contracting agencies have to make to the Equal Opportunity Clause?
  4. How does the Final Rule relate to OFCCP’s recent directive implementing the EEOC’s decision in Macy v. Holder regarding discrimination based on gender identity or transgender status?
  5. Does the Final Rule require contractors to conduct any data analysis relating to compensation or other practices as they relate to sexual orientation or gender identity?
  6. Does the Final Rule require contractors to ask applicants and employees to voluntarily self–identify their sexual orientation or gender identity? Does the Final Rule permit contractors to invite such voluntary disclosure if they choose to do so?

 

Effective Date

  1. When did the Final Rule take effect?
  2. If I am already a federal contractor, did I have to make any changes before April 8, 2015?

 

Religious Employers and Religious Exemption

  1. How does Executive Order 11246 apply to religious organizations?
  2. Does the Final Rule alter the existing religious exemption in EO 11246 in any way?
  3. What kinds of organizations are covered by the religious exemption of Executive Order 11246?
  4. How can contractors invoke the religious exemption under 41 CFR 60–1.5(a)(5)?
  5. How does EO 11246’s exemption for religious organizations operate in light of the addition of the new protected categories?
  6. How does the “ministerial exception” interact with Executive Order 11246?

 

Overview of the Final Rule

Rulemaking Process

  1. Why did the Department implement Executive Order 13672 with a Final Rule without prior notice and comment?

 

Equal Opportunity Contract Clause Incorporation

  1. Under the Final Rule, what changes do federal contracting agencies have to make to the Equal Opportunity Clause?
  2. Does the Final Rule require the revised equal opportunity clause to refer to both Executive Order 11246 and Executive Order 13672?
  3. Does the Final Rule change the way in which the equal opportunity clause may be incorporated into contracts and subcontracts by reference?

 

Job Advertisement Tag Line

  1. How does the Final Rule change the requirements for solicitations and advertisements for employees?

 

AAP and Policy Statement

  1. Must a federal contractor update its Affirmative Action Program (AAP) or any of its policy statements or handbooks to indicate that it does not discriminate based on sexual orientation or gender identity?

 

Outreach and Recruitment

  1. Does the Final Rule require outreach activities?

 

Technical Assistance and Public Education

  1. Will OFCCP’s Employment Referral Resource Directory be updated to include organizations specializing in issues related to sexual orientation and gender identity?
  2. What steps has OFCCP taken to implement EO 13672 (e.g., workshops, webinars, and the issuance of other guidance materials)?
  3. How can I sign up to participate in these events and opportunities?
  4. What should I do if I have a question that is not answered by OFCCP’s Final Rule or other materials?

 

Implementation Questions

In General

Covered Contractors

  1. How do I know whether an employer is a federal contractor subject to the Final Rule?
  2. If I am only a federal grant recipient, and not a contractor, am I subject to Executive Order 11246 as amended by this Final Rule?

 

Definitions

  1. What does “gender identity” mean?
  2. What does “sexual orientation” mean?

 

Job Advertisement Tag Line

  1. If I include all of the bases instead of the phrase “equal opportunity employer,” can I abbreviate “sexual orientation” and “gender identity” in job solicitations and advertisements?

 

Data Collection, Self–Identification, and Supporting Documentation

  1. May a contractor ask a transgender applicant or employee for documentation to prove his or her gender identity?
  2. What kinds of documents may an employer require a transitioning applicant or employee to provide about the employee’s transition?
  3. If a contractor voluntarily collects data on the sexual orientation and gender identity of employees and applicants, will OFCCP request the data during a complaint investigation or compliance evaluation?

 

EEO Poster

  1. Will the “EEO is the Law” poster be revised in light of the Final Rule? If so, should contractors stop using the current poster when the Final Rule takes effect?

 

Restrooms

  1. How is restroom access affected by the Final Rule?

 

Types of Discrimination

  1. Will OFCCP accept complaints of “disparate impact” discrimination on the basis of sexual orientation and gender identity?

 

Intersection of State and Local Nondiscrimination Laws

  1. How does the Final Rule affect employers in jurisdictions that already prohibit discrimination on the basis of sexual orientation and/or gender identity?

 

Relation to Title IX

  1. There are many colleges and universities that are federal contractors. How does the Final Rule apply to those educational institutions that are federal contractors?

 

Employee Benefits

  1. Is a contractor required to provide fringe benefits to employees’ same–sex spouses if they reside or work in a state that does not recognize their marriage? What about employees in civil unions or domestic partnerships?
  2. How do OFCCP’s EO 11246 regulations address transition–related health benefits?

 

Visa Denials and Related Issues

  1. Section 60–1.10 of the Final Rule requires, in part, that contractors inform both OFCCP and the U.S. State Department when a country in which it does business denies a visa of entry to an employee or potential employee, and the contractor believes that that denial is based on sexual orientation or gender identity. If my company receives such a visa denial, who should we contact at OFCCP, and how do we contact the State Department?

 

General Information

 

  1. You say the Final Rule applies to contracts entered into or modified on or after the effective date of the Final Rule. What are some examples of modifications to existing contracts?

    Contractors and contracting agencies may reach an agreement to modify an existing contract for a variety of reasons. For example, a modified contract may extend the length of an existing contract beyond the original end date, or a modified contract may reflect revised requirements or specifications.
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  3. Will the new nondiscrimination requirements be added as new terms and conditions to all existing contracts (and thus serve as modifications to those contracts)?

    No. Under the terms of Executive Order 13672, the amendments apply only to contracts entered into or modified on or after the effective date of the Final Rule. Existing contracts will only be affected if contractors and contracting agencies modify those contracts on or after the effective date of the Final Rule. OFCCP is not involved in the negotiation of contracts and the Final Rule will not independently cause any existing contracts to be modified.
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  5. Under the Final Rule, what changes do federal contracting agencies have to make to the Equal Opportunity Clause?

    Under both the Executive Order and the Final Rule, federal contracting agencies must include gender identity and sexual orientation as prohibited bases of discrimination under the Equal Opportunity Clause.
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  7. How does the Final Rule relate to OFCCP’s recent directive implementing the EEOC’s decision in Macy v. Holder regarding discrimination based on gender identity or transgender status?

    OFCCP’s August 19, 2014, directive “Gender Identity and Sex Discrimination,” Dir 2014–02, previously clarified that sex discrimination includes discrimination on the bases of gender identity and transgender status, consistent with the EEOC’s decision in Macy v. Holder.

    Both Executive Order 13672 and OFCCP’s directive prohibit contractors from discriminating against applicants and employees on the basis of their gender identity. Executive Order 13672 prohibits discrimination on the bases of gender identity and sexual orientation as separate protected categories. The directive does not address discrimination on the basis of sexual orientation. Executive Order 13672 does not alter the directive or its application.
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  9. Does the Final Rule require contractors to conduct any data analysis relating to compensation or other practices as they relate to sexual orientation or gender identity?

    No. The Final Rule does not require contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees.
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  11. Does the Final Rule require contractors to ask applicants and employees to voluntarily self–identify their sexual orientation or gender identity? Does the Final Rule permit contractors to invite such voluntary disclosure if they choose to do so?

    The Final Rule does not require contractors to collect any information about applicants’ or employees’ sexual orientation or gender identity. At the same time, the Final Rule does not prohibit contractors from asking applicants and employees to voluntarily provide this information, although doing so may be prohibited by state or local law. Contractors may not use any information gathered to discriminate against an applicant or employee based on sexual orientation or gender identity.

 

Effective Date

 

  1. When did the Final Rule take effect?

    The Final Rule became effective 120 days after its publication in the Federal Register. This means that it became effective on April 8, 2015, and it applies to covered contracts entered into or modified on or after that date.
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  3. If I am already a federal contractor, did I have to make any changes before April 8, 2015?

    No. The Final Rule became effective on April 8, 2015, and only applies to employers that enter into a new covered federal contract, or modify an existing covered federal contract, on or after that date. Contractors are not required to make changes before April 8, though contractors are encouraged to review their policies and procedures.

 

Religious Employers and Religious Exemption

 

  1. How does Executive Order 11246 apply to religious organizations?

    Executive Order 11246, as amended, only applies to employers that are federal contractors or federally–assisted construction contractors. A religious organization will only be subject to the Final Rule if it enters into a new covered federal contract or subcontract, or modifies an existing covered federal contract or subcontract, on or after the Final Rule’s effective date of April 8, 2015. Religious organizations that are not contractors, but recipients of grant funds, for example, the Senior Farmers’ Market Nutrition Program, the Office of Refugee Resettlement Voluntary Agencies Matching Grant Program, and the Community Development Block Grant (CDBG) program, are not subject to Executive Order 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 Executive Order 11246, as amended, including the newly added categories of sexual orientation and gender identity. The Executive Order and OFCCP regulations do provide, though, an exception that permits religious organizations to prefer to employ only members of a particular religion. The so–called “ministerial exception,” also discussed below, may apply as well.
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  3. Does the Final Rule alter the existing religious exemption in EO 11246 in any way?

    No. EO 13672 did not change the existing religious exemption, which was added to EO 11246 by President Bush in 2002, allowing religiously affiliated contractors (religious corporations, associations, educational institutions, or societies) to favor individuals of a particular religion when making employment decisions. The regulation implementing that exemption is located at 41 CFR 60–1.5(a)(5).

    That regulation states that the nondiscrimination obligations of Executive Order 11246 “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

    In addition, the Supreme Court has recognized that the First Amendment to the Constitution requires a “ministerial exception” from employment discrimination laws, which prohibits the Government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy.
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  5. What kinds of organizations are covered by the religious exemption of Executive Order 11246?

    Under section 204(c) of Executive Order 11246 and 41 CFR 60–1.5(a)(5), the Executive Order does not apply to a government contractor or subcontractor that is a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of the organization’s activities. This language mirrors the religious exemption of Title VII of the Civil Rights Act of 1964, and OFCCP will follow EEOC and courts’ interpretations of Title VII when determining which organizations can claim the exemption and how it applies. Under established case law, this exemption applies only to those institutions whose purpose and character are primarily religious. In determining whether a contractor qualifies for this exemption, OFCCP will consider all significant religious and secular characteristics of the organization, with each case turning on its own facts. Although no one factor is dispositive, significant factors that courts have considered to determine whether an employer is a religious organization for purposes of Title VII include: whether the contractor is not for profit, whether its day–to–day operations are religious (e.g., are the services the contractor performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether the contractor’s articles of incorporation or other pertinent documents state a religious purpose; whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or other religious organization; whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; whether the contractor holds itself out to the public as secular or sectarian; whether the contractor regularly includes prayer or other forms of worship in its activities; whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and whether its membership is made up of coreligionists.
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  7. How can contractors invoke the religious exemption under 41 CFR 60–1.5(a)(5)?

    Executive Order 11246 and 41 CFR 60–1.5(a)(5) do not require contractors to obtain pre–approval from OFCCP to take advantage of the religious exemption. In the past, though, some contractors have submitted written requests for exemptions to OFCCP’s Division of Program Operations, explaining why they qualify for the exemption. Contractors can also invoke the exemption in connection with an OFCCP compliance evaluation, or when they enter into a covered contract or subcontract. OFCCP carefully considers each of these requests in coordination with the Solicitor of Labor.
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  9. How does EO 11246’s exemption for religious organizations operate in light of the addition of the new protected categories?

    In general, this exemption allows religious organizations to prefer to employ only members of a particular faith, but it does not allow religious organizations to discriminate in employment on the basis of race, color, sex, sexual orientation, gender identity, or national origin.
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  11. How does the “ministerial exception” interact with Executive Order 11246?

    The Supreme Court has recognized that the First Amendment requires a “ministerial exception” from employment discrimination laws, which prohibits the government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy. In determining whether the ministerial exception applies to an employer’s decision in a particular case under Executive Order 11246, OFCCP, as guided by Supreme Court precedent, makes an assessment of all of the facts and circumstances of employment, including the functions performed by the employee, the job title given to and used by the employee, and the amount of time the employee spends on particular activities.

 

Overview of the Final Rule

Rulemaking Process

  1. Why did the Department implement Executive Order 13672 with a Final Rule without prior notice and comment?

    This approach is consistent with agency precedent under other Administrations, including in earlier changes to these exact same regulations. For instance, OFCCP proceeded to a final rule without first giving public notice and taking comment when Executive Order 11246 was amended in 2002, when President Bush signed EO 13279 to add a religious exemption to EO 11246.

    President Obama’s Executive Order was very clear about the steps the Department of Labor was required to take, and left no discretion regarding how to proceed. In such cases, principles of administrative law allow an agency to publish final rules without prior notice and comment when the agency only makes a required change to conform a regulation to the enabling authority, and does not have any discretion in doing so.

 

Equal Opportunity Contract Clause Incorporation

  1. Under the Final Rule, what changes do federal contracting agencies have to make to the Equal Opportunity Clause?

    Under both Executive Order 13672 and the Final Rule, federal contracting agencies must include sexual orientation and gender identity as prohibited bases of discrimination under the Equal Opportunity Clause.
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  3. Does the Final Rule require the revised equal opportunity clause to refer to both Executive Order 11246 and Executive Order 13672?

    No. The revised equal opportunity clause does not need to refer to both Executive Order 11246 and Executive Order 13672. Executive Order 13672 amended Executive Order 11246, so contractors’ equal opportunity clause need only refer to “Executive Order 11246, as amended.”
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  5. Does the Final Rule change the way in which the equal opportunity clause may be incorporated into contracts and subcontracts “by reference?”

    No. Contractors may continue citing to “41 CFR 60–1.4,” the equal opportunity clause provision of the regulations, to incorporate by reference the Executive Order 11246 equal opportunity clause into their contracts and subcontracts. The Final Rule does not change this option.

 

Job Advertisement Tag Line

  1. How does the Final Rule change the requirements for solicitations and advertisements for employees?

    Under the currently effective regulations, contractors may either state that they do not discriminate on any of the protected bases under Executive Order 11246, and list them all, or they may simply use the phrase “equal opportunity employer.” These same options remain under the Final Rule. If electing the first option above, contractors subject to the Final Rule will be required to add “sexual orientation” and “gender identity” to the list of bases on which discrimination is prohibited. The use of the “LGBT” abbreviation is discouraged because it does not accurately reflect that people of all sexual orientations and gender identities are protected by the Final Rule. As a reminder, contractors will also be required to display an updated “EEO is the Law” poster reflecting the new protected bases once that poster is finalized by the EEOC and OFCCP.

 

AAP and Policy Statement

  1. Must a federal contractor update its Affirmative Action Program (AAP) or any of its policy statements or handbooks to indicate that it does not discriminate based on sexual orientation or gender identity?

    No. The Final Rule does not require contractors to update their AAPs, policy statements, or handbooks. Nonetheless, it is a best practice for contractors to include in their AAPs, policy statements, and handbooks that applicants and employees will be treated without regard to their sexual orientation and gender identity.

 

Outreach and Recruitment

  1. Does the Final Rule require outreach activities?

    No. The Final Rule does not require contractors to engage in outreach activities. However, contractors are encouraged to engage in such activities to attract a diverse spectrum of qualified candidates.

 

Technical Assistance and Public Education

 

  1. Will OFCCP’s Employment Referral Resource Directory be updated to include organizations specializing in issues related to sexual orientation and gender identity?

    OFCCP is providing contractors with a non–exhaustive directory of resources on issues related to creating an inclusive workplace for lesbian, gay, bisexual, and transgender employees. These resources, available on the OFCCP Web site, are intended to help contractors attract and retain diverse employees.
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  3. What steps has OFCCP taken to implement EO 13672 (e.g., workshops, webinars, and the issuance of other guidance materials)?

    During the period between publication and the effective date, OFCCP published compliance assistance materials such as fact sheets and “Frequently Asked Questions.” OFCCP also hosted webinars on the amended requirements, and conducted workshops and forums to listen to any questions and concerns contractors and other stakeholders had about the requirements of the Final Rule. As with the implementation of its other rules, OFCCP was committed to engaging its stakeholders with the goals of providing access to information, identifying and addressing issues that might hinder the successful implementation of this final rule, and providing compliance assistance to contractors. OFCCP will publish additional technical assistance materials after the effective date of the Final Rule, as appropriate.
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  5. How can I sign up to participate in these events and opportunities?

    OFCCP will provide advance notice of these opportunities on its website, along with information as to how to participate. To view scheduled technical assistance webinars and stakeholder events visit https://www.dol.gov/ofccp/LGBT or the DOL Events Calendar at https://webapps.dol.gov/calendar/.
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  7. What should I do if I have a question that is not answered by OFCCP’s Final Rule or other materials?

    Contractors and other stakeholders may always reach out to OFCCP’s Customer Service Desk at 1–800–397–6251, or to OFCCP’s public email box at OFCCP–Public@dol.gov with questions about the application of the Final Rule.

 

Implementation Questions

In General

Covered Contractors

  1. How do I know whether an employer is a federal contractor subject to the Final Rule?

    If a business or organization has a Federal contract, subcontract, or federally assisted construction contract it may be subject to the requirements of Executive Order 11246. Generally speaking, any business or organization that (1) holds a single Federal contract, subcontract, or federally–assisted construction contract in excess of $10,000; (2) has a Federal contract or subcontracts with 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 will be subject to the requirements of Executive Order 11246. To be subject to the Final Rule, a federal contractor must enter into a new covered federal contract or subcontract, or modify an existing covered federal contract or subcontract, on or after the Final Rule’s effective date of April 8, 2015.
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  3. If I am only a federal grant recipient, and not a contractor, am I subject to Executive Order 11246 as amended by this Final Rule?

    Final Rule, like Executive Order 11246, generally applies to employers who are contractors or subcontractors with the Federal government, as well as construction contractors working on federally–assisted construction projects, with covered contracts in excess of $10,000. The Final Rule does not apply to grant recipients or non–construction recipients of federal financial assistance.

 

Definitions

  1. What does “gender identity” mean?

    The term “gender identity” refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others.
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  3. What does “sexual orientation” mean?

    “Sexual orientation” refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.

 

Job Advertisement Tag Line

  1. If I include all of the bases instead of the phrase “equal opportunity employer,” can I abbreviate “sexual orientation” and “gender identity” in job solicitations and advertisements?

    No. Contractors cannot abbreviate “sexual orientation” and “gender identity” if opting to list all of the bases on which discrimination is prohibited under Executive Order 11246, as amended. For example, one acceptable tagline might be “Equal Opportunity Employer–minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.” The intent is to provide as much notice as possible about the protected groups while allowing contractors some flexibility for constructing their taglines.

 

Data Collection, Self–Identification, and Supporting Documentation

  1. May a contractor ask a transgender applicant or employee for documentation to prove his or her gender identity?

    No. A contractor may not ask any applicants or employees to prove their gender identity or transgender status.
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  3. What kinds of documents may an employer require a transitioning applicant or employee to provide about the employee’s transition?

    Employers may not ask transgender applicants or employees for any documentation they do not request from other employees under similar circumstances. For example, if a transgender employee is requesting to make a name change, an employer may require the same documentation it requires from other employees seeking to effectuate a name change. If a transgender employee is requesting medical leave in connection with his or her transition, an employer may request the same documentation it requires from other employees seeking medical leave. It is a best practice to have a policy for addressing human resources and cultural sensitivity issues for employees that are transitioning. Once an employee has voluntarily made a disclosure to HR or the appropriate office within the company, the most successful policies provide for ongoing communication between the employee and the employer.
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  5. If a contractor voluntarily collects data on the sexual orientation and gender identity of employees and applicants, will OFCCP request the data during a complaint investigation or compliance evaluation?

    While the Final Rule does not require the collection of this data, contractors are encouraged to collect data that they find useful to their diversity and inclusion efforts, consistent with any state or local laws. If a contractor possesses data that is relevant to the compliance evaluation or a specific matter under investigation, OFCCP may request that data. The fact that OFCCP may request this information should not deter contractors from voluntarily collecting it.

 

EEO Poster

  1. Will the “EEO is the Law” poster be revised in light of the Final Rule? If so, should contractors stop using the current poster when the Final Rule takes effect?

    OFCCP is already discussing changes to the “EEO is the Law” poster with the Equal Employment Opportunity Commission (EEOC). The poster will be revised in light of changes in several new regulations; for example, the new poster will reflect the addition of “sexual orientation” and “gender identity” to the bases on which discrimination is prohibited. While OFCCP is working with EEOC to revise the poster, contractors should continue using the existing poster. OFCCP will post a notice on its Web site to let contractors know when the new poster is available for use. In the interim, OFCCP is working on a supplement or insert for contractors to use along with the current poster that will reflect all of the recent regulatory changes.

 

Restrooms

  1. How is restroom access affected by the Final Rule?

    Under the Final Rule, contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.

 

Types of Discrimination

  1. Will OFCCP accept complaints of “disparate impact” discrimination on the basis of sexual orientation and gender identity?

    Yes. OFCCP will accept complaints of sexual orientation and gender identity discrimination that allege facially neutral policies or practices that have the effect of discriminating on the basis of sexual orientation and/or gender identity.

 

Intersection of State and Local Nondiscrimination Laws

  1. How does the Final Rule affect employers in jurisdictions that already prohibit discrimination on the basis of sexual orientation and/or gender identity?

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

 

Relation to Title IX

  1. There are many colleges and universities that are federal contractors. How does the Final Rule apply to those educational institutions that are federal contractors?

    Because Executive Order 11246 and its regulations prohibit discrimination in employment, the Final Rule will apply to the employment practices of covered educational institutions. The Final Rule does not address discrimination against current or prospective students in education programs or activities. To the extent schools, colleges, and universities have questions about their obligations under Title IX, please contact the Department of Education’s Office for Civil Rights (http://www2.ed.gov/about/offices/list/ocr/index.html).

    Executive Order 11246 also applies to certain students who are employed by educational institutions. OFCCP follows Title VII principles in determining whether an allegation of discrimination under Executive Order 11246 relates to a student’s status as an employee.

 

Employee Benefits

  1. Is a contractor required to provide fringe benefits to employees’ same–sex spouses if they reside or work in a state that does not recognize their marriage? What about employees in civil unions or domestic partnerships?

    Contractors may choose to offer benefits to a range of beneficiaries, including, but not limited to, employee’s spouses. Contractors that choose to provide benefits to spouses are required to provide the same benefits to employees in same–sex marriages as those in opposite–sex marriages. Contractors also must use the same standard to determine if a same–sex or opposite–sex marriage qualifies a spouse for benefits. Examples of such standards include a “place of residence” or “place of celebration” rule. In states that do not recognize same–sex marriage, the use of a “place of residence” or “place of business” rule, which would find all same–sex marriages invalid and deny benefits on this ground, may constitute prohibited discrimination under the Executive Order, as to do so could have an unjustified disparate impact on the basis of sexual orientation. Adopting a “place of celebration” rule would avoid any such risk. Under such a rule, any marriage is recognized if it was entered into in a U.S. state or territory that recognizes that marriage; or, if entered into outside the U.S., is valid in the place where entered into and could have been entered into in at least one U.S. state or territory. Additionally, contractors cannot deny same–sex partners in civil unions or domestic partnerships the same benefits they provide to heterosexual partners in such relationships.
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  3. How do OFCCP’s EO 11246 regulations address transition–related health benefits?

    Discrimination based on gender identity in the provision of fringe benefits falls within the scope of EO 11246 and its implementing regulations. EO 11246 and its regulations have long banned discrimination in rates of pay and other forms of compensation, which include all manner of employee benefits, such as health benefits. OFCCP’s Directive on Gender Identity and Sex Discrimination, issued in August 2014, states that prohibited sex discrimination includes discrimination based on gender identity or transgender status. In addition, EO 13672 amended EO 11246 to expressly prohibit discrimination based on gender identity.

    As such, the nondiscrimination requirements of EO 11246 obligate contractors to ensure that coverage for healthcare services be made available on the same terms for all individuals for whom the services are medically appropriate, regardless of sex assigned at birth, gender identity, or recorded gender. For example, where a transgender man needs medical treatment for ovarian cancer, a contractor may not deny coverage based on the individual’s identification as male. In addition, an explicit, categorical exclusion of coverage for all care related to gender dysphoria or gender transition is facially discriminatory because such an exclusion singles out services and treatments for individuals on the basis of their gender identity or transgender status, which violates EO 11246’s prohibitions on both sex and gender identity discrimination.

    In evaluating whether the denial of coverage of a particular service, where an individual is seeking the service as part of a gender transition, is discriminatory treatment, OFCCP applies the same basic principles of antidiscrimination law as it does with other terms and benefits of employment. This means that OFCCP asks whether there is a legitimate, nondiscriminatory reason for such denial or limitation that is not a pretext for discrimination, for example.

Visa Denials and Related Issues

  1. Section 60–1.10 of the Final Rule requires, in part, that contractors inform both OFCCP and the U.S. State Department when a country in which it does business denies a visa of entry to an employee or potential employee, and the contractor believes that that denial is based on sexual orientation or gender identity. If my company receives such a visa denial, who should we contact at OFCCP, and how do we contact the State Department?

    OFCCP’s Visa Denials by Foreign Governments Web page explains who to contact at OFCCP, and how to contact the State Department should your company’s request for a visa be denied on the basis of sexual orientation or gender identity. This page also provides information about a country’s visa requirements, information regarding how to obtain assistance if your company is having difficulty obtaining a visa, and links to State Department Web pages providing information and travel tips for LGBT travelers.