Is Your Company Prepared? Proposed Rule Changes Targeting Discrimination on the Basis of Sex, Gender Identity and Gender Norms

The U.S. Department of Labor today announced a proposed rule change that would rescind the existing Sex Discrimination Guidelines found at 41 C.F.R. part 60-20 and replace those provisions with new rules regarding current workplace practices as they pertain to federal contractors’ obligations. These are the first changes to these regulations in 40 years. Needless to say, all employers contracting or subcontracting with the federal government should pay close attention. The entire notice (108 pages) can be viewed on the Office of Federal Register’s website.

The Department of Labor states that “the proposed rule is necessary to address current workplace practices and issues and to support the economic interests of women, families, and others impacted by discrimination based on sex.” These economic interests include “pay discrimination, sexual harassment, failure to provide workplace accommodations for pregnancy and gender identity and family caregiving discrimination.”

The Department of Labor created the following infographic showing the history and supporting reasons why the Department believes these changes are necessary:

Through the proposed changes, the Department of Labor is seeking to address, among others things, these four issues:

1. Adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is discrimination and ensuring that leave for childcare being available to men on the same terms as it is available to women.
   
   
2. Requiring workplace accommodations to women affected by pregnancy, childbirth, and related medical conditions. These accommodations range from extra bathroom breaks to light-duty assignments, comparable to the accommodations provided by employers to other similarly-situated workers, such as workers with disabilities or occupational injuries.
   
   
3. Discriminatory compensation and benefits through job segregation or classification on the basis of gender.
   
   
4. Adverse treatment of employees because on the basis of their gender identity or where employees do not conform to gender norms and expectations about appearance, attire, and behavior is unlawful sex discrimination.

The proposed rule was published in the Federal Register on Friday, January 30, 2015 and the public will have until March 31 (60 days) to provide comments. If approved, all persons employed or seeking employment with government contractors and subcontractors, and contractors and subcontractors performing under federally assisted construction contracts will be required to comply.

These changes follow an increasing trend of employees claiming discriminatory practices by employers based on sex, gender identity, and gender norms. Employers (even those not directly impacted by these changes) should review their employment policies, manuals and guidelines for compliance with any rules approved. It is not likely that the trend on these type of claims by employees will reverse course anytime soon.