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OFCCP embraces sex stereotyping theory in EO 11246 enforcement

November 7th, 2013  |  Cynthia L. Hackerott

While the EEOC has pursued Title VII gender discrimination claims under the sex stereotyping theory for some time now, it has, until recently, been unclear what the OFCCP’s policy is with regard to pursuing claims under Executive Order (EO) 11246 based on this theory. Several developments throughout this year, including a settlement announced by the OFCCP earlier this week, illustrate that the OFCCP, like its sister agency, has explicitly adopted the sex stereotyping theory.

Policy questions. In last year’s much publicized Macy v Holder decision, the EEOC — following earlier court precedents which held that Title VII’s prohibition against discrimination based on “sex” extends to claims for sex stereotyping, as well any other claim asserting that gender was taken into account — ruled that transgender workers are protected under Title VII.  Thus, the EEOC adopted the position that the sex stereotyping theory encompasses claims of discrimination based on transgender status.

The Macy ruling raised questions as to whether the OFCCP would follow suit in its enforcement of EO 11246. A July 19, 2013 Buzzfeed report quoted Tico Almeida, Founder and President of the LGBT advocacy group Freedom to Work, as saying that senior White House staff had “forbidden Labor [Department] officials from formally adopting the [Macy] decision.”  This assertion was also mentioned in an August 1, 2013 story published in the Washington Blade, citing the Buzzfeed report.

However, remarks made by an OFCCP official just a few days following the Buzzfeed report contradict the claim reportedly made by Almeida. During a panel discussion at the Industry Liaison Group National Conference in Indianapolis, Indiana on July 31, 2011, Mid-Atlantic Regional Director Michele Hodge confirmed that the OFCCP is pursuing sex stereotyping claims. In light of the Macy decision, an audience member asked whether the OFCCP held a view similar to the EEOC’s, and if so, whether sex stereotyping could be investigated by the OFCCP. Hodge responded that, as with compensation and other employment decisions, the OFCCP will apply “Title VII principles” to its compliance reviews and complaint investigations; thus, the OFCCP could investigate sex stereotyping during a compliance evaluation and could address complaints on that basis. When asked whether there have in fact been OFCCP investigations in this regard, Hodge answered in the affirmative, and added that sex stereotyping is included in the training currently provided to OFCCP staff.

FCCM. The sex stereotyping theory is specifically mentioned in several places in the OFCCP’s revised Federal Contract Compliance Manual (FCCM or Manual), which was publicly released on August 23, 2013. The revised manual, dated July 2013, covers how the OFCCP’s compliance officers (COs) conduct a desk audit, an onsite review, a construction industry compliance evaluation, a corporate management compliance evaluation and a complaint investigation. It also covers the agency’s functional affirmative action program (FAAP), the various types of discrimination remedies and ways to resolve noncompliance issues.

In Chapter 2 (Onsite Review), on page 81, the Manual states:

“COs must examine whether contractor policies make prohibited distinctions in conditions of employment based on sex, including the basis of pregnancy, childbirth or related medical conditions, or on the basis of sex-based stereotypes, including those related to actual or perceived caregiver responsibilities. Contractors must not make employment decisions based on stereotypes about how males and females are “supposed” to look or act. Such employment decisions are a form of sex discrimination prohibited by Executive Order 11246, as amended.”

According to OFCCP expert John C. Fox, the revised FCCM was actually completed as of December 2011 and OFCCP COs began implementing the revised Manual in the field last year. Thus, the sex stereotyping theory has apparently been applied to OFCCP enforcement since at least last year.

Recent settlement. On November 4, 2013, the OFCCP announced a conciliation agreement that settled pay and hiring discrimination claims against G&K Services Co., a federal contractor providing uniform rental services to a number of different government agencies. The contractor, according to the OFCCP, had a practice of assigning laundry workers to different tasks and different pay rates on the basis of gender stereotypes. The OFCCP alleged that, between July 1, 2009, and June 30, 2010, female employees who had been hired as general laborers were assigned to “light duty” jobs that paid less than the “heavy duty” jobs involving similar work and qualifications, which the company reserved for men. Investigators also found that male applicants were frequently denied the option to compete for a majority of the open general laborer opportunities during the review period because the company only considered them for so-called heavy duty work.

“Denying women access to higher-paying opportunities because of sex stereotyping is a form of pay discrimination in violation of Executive Order 11246,” the OFCCP announcement stated.

Whatever doubts there may have been, it is clear that the OFCCP has now adopted, and is implementing, the sex stereotyping theory in its enforcement efforts. While there has not yet been any public announcement that the OFCCP is specifically pursuing claims on behalf of transgendered workers based on the sex stereotyping theory, the FCCM’s language stating that “[c]ontractors must not make employment decisions based on stereotypes about how males and females are ‘supposed’ to look or act,” strongly suggests that the OFCCP considers transgender workers as a protected group under EO 11246.