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Department of Labor Publishes New Guidance on Prohibition Against Sex Discrimination

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In August, the Department of Labor (DOL) issued guidance advising that it will consider violations of Title VII of the Civil Rights Act and Executive Order 11246 (which prohibits employment discrimination by federal contractors) based upon gender identity and transgender status.

Title VII is the granddaddy of discrimination laws that prohibits discrimination on the basis of race, color, religion, sex or national origin, and has been in effect since 1964. This expansion, or rather, interpretation of the Act, prohibits “disparate treatment of a transgender employee because he or she does not conform to the gender stereotypes association with his or her biological sex”, and as such, “is a form of sex discrimination.” The policy takes effect immediately (as of August 19, 2014) and apparently does not require any additional rulemaking as it is considered merely an interpretive ruling under the existing regulations.

The Office of Federal Contract Compliance Programs (OFCCP) published a directive on Gender Identity and Sex Discrimination (DIR 2014-02) that clarifies its own interpretation of the nondiscrimination obligations by the DOL, and prohibits federal contractors and subcontractors from discriminating against employees and applicants on the basis of sexual orientation or gender identity, in addition to race, sex, religion and national origin. The Director of the OFCCP Patricia Shiu decreed that “existing agency guidance on discrimination on the basis of sex….includes discrimination on the basis of gender identity and transgender status.” This directive will apply to all federal contracts and contract modifications issued after the effective date of the amended regulations.

While we doubt this will have much impact on our members’ operations, it is yet another potential legal minefield we urge them to avoid. How you hire and treat your employees is of utmost importance, and everything must be handled professionally and comply with all applicable state and federal labor laws and regulations.

Hilary Atkins

Posted In: Legal, Management

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