Berkshire's Interpretation of OFCCP Directive on Gender Identity

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Source: Lynn Clements, Director of Regulatory Affairs

On August 19, 2014, Patricia Shiu, Director of Office of Federal Contract Compliance Programs (OFCCP), issued guidance to field staff clarifying that discrimination based on gender identity and transgender status is sex discrimination under Executive Order 11246. Executive Order prohibits federal contractors and subcontractors from discriminating on the basis of sex, race, color, national origin, and religion in employment. 

In July, 2014, President Obama issued Executive Order 13672, which amended Executive Order 11246 to add sexual orientation and gender identity to the list of protected categories. President Obama also directed the Department of Labor (DOL) to “prepare regulations” within 90 days to implement these new protections. OFCCP’s new Directive 2014-02 appears to be an interim step in the DOL’s efforts to fulfill that promise. The Directive provides OFCCP interprets Executive Order 11246 as covering discrimination based on gender identity and transgender status as a form of sex discrimination.

Directive 2014-02 notes OFCCP consistently has interpreted Executive Order 11246 in accordance with case law developed under Title VII of the Civil Rights Act of 1964 (Title VII), which is enforced by the Equal Employment Opportunity Commission (EEOC). In 2012, the EEOC unanimously held in a federal sector decision that discrimination based on transgender status can be discrimination based on sex prohibited by Title VII.

The Directive provides that OFCCP will investigate “individual and systemic” complaints of gender identity or transgender discrimination by applicants for employment with as well as current and former employees of federal contractors and subcontractors, rather than transfer these cases to the EEOC for investigation. Compliance Officers also are directed to “continue to seek to remedy any findings of sex discrimination against transgender employees that are discovered . . . during scheduled compliance evaluations.”

Directive 2014-02 does not mention coverage of discrimination based on sexual orientation, even though Executive Order 13672 covers discrimination on this basis. OFCCP will still issue proposed regulations to cover discrimination on this basis, as well as gender identity and transgender status as separate protected categories, in the next few months. Proposed regulations are expected before October, 2014. 

Directive 2014-02 was emailed to field personnel yesterday and is available on OFCCP’s website at http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html

Berkshire will continue to monitor this Directive, and provide updates as they become available. For more information, please contact Berkshire Associates at 800.882.8904. 

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