OFCCP Issues Final Rule on Sexual Orientation, Gender Identity

Author: Ashley Shaw, XpertHR Legal Editor

December 10, 2014

The Office of Federal Contract Compliance Programs (OFCCP) has issued its final rule on Executive Order 13672, which extends current discrimination protections to include claims based on sexual orientation and gender identity. Employers modifying or entering into a federal contract will be prohibited from discriminating against employees based on sexual orientation or gender identity. In addition, the new protected classes should be added to the Equal Opportunity Clause in contracts and job announcements.

The OFCCP enforces Executive Order 11246, which prohibits discrimination on the basis of race, color, religion, sex and national origin by employers doing business with the federal government. EO 11246 also requires affirmative steps to be taken in order to prevent discrimination against those protected classes. EO 13672 modifies EO 11246 to include sexual orientation and gender identity.

President Obama signed EO 13672 last summer, and the implementing regulations will take effect on April 8, 2015. The regulations will apply to federal contracts entered into or modified on or after that day.

An employer will not be required to collect information on an applicant's or employee's sexual orientation or gender identity. In addition, an employer will not need to conduct data analysis related to compensation or other practices as those relate to an applicant's or employee's sexual orientation or gender identity. Similarly, an employer will not be required to set placement goals.

Although the regulations do not define sexual orientation or gender identity, the OFCCP has released FAQs stating that the agency will use the same definition applied by the Equal Employment Opportunity Commission and Title VII case law.

The "Equal Opportunity Is the Law" poster will be revised to reflect these new requirements.

The regulations were finalized without prior notice or public comment.