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OFCCP issues new directive on handling sexual orientation and gender identity discrimination complaints

April 30th, 2015  |  Cynthia L. Hackerott

The OFCCP has issued a new directive to establish the agency’s policy on accepting and investigating individual and systemic complaints based on gender identity or sexual orientation. Directive 2015-01, entitled “Handling individual and systemic sexual orientation and gender identity discrimination complaints” is dated April 16, 2015 and took effect on the date of issuance. Under the new policy set forth in this directive, the OFCCP will accept and investigate individual and systemic complaints that allege discrimination on the basis of sexual orientation and gender identity against a federal contractor or subcontractor. It will analyze each complaint to determine whether the alleged discrimination occurred on the basis of sexual orientation or gender identity, as well as on the basis of sex, and will coordinate with, and refer complaints to, EEOC on a case-by-case basis.

Recent amendment to EO 11246. The OFCCP enforces Executive Order (EO) 11246, as amended, which prohibits covered federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. Sexual orientation and gender identity were expressly added to the categories protected from discrimination under EO 11246 on July 21, 2014, when President Obama signed EO 13672.

Regulations. On December 9, 2014, the OFCCP published in the Federal Register finalized regulations to implement EO 13672 (79 FR 72985-72995). On March 17, 2015, pursuant to the Paper Reduction Act, the Office of Budget and Management (OMB) approved the information collection requirements (ICR) necessary for implementation of those regulations. They took effect on April 8, 2015, and apply to federal contractors who hold contracts entered into or modified on or after that date.

Broader than LGBT. In its FAQ and webinars about these regulations, the OFCCP has explained that use of the “LGBT” abbreviation in place of “sexual orientation and gender identity” is discouraged in job advertisement tag lines “because it does not accurately reflect that people of all sexual orientations and gender identities are protected by the new regulations.” Of note, the “LGBT” abbreviation is not used anywhere in the new directive.

Enforcement. Although the OFCCP does not enforce Title VII, the directive notes that the OFCCP enforces the nondiscrimination obligations under EO 11246 by following Title VII and the case law principles that have developed interpreting Title VII. In addition, since the EEOC is the lead federal agency responsible for administering and enforcing Title VII (pursuant to EO 12067), the OFCCP generally defers to the EEOC’s interpretations of Title VII law.

Coverage differences. Title VII, unlike the amended EO 11246, does not expressly cover sexual orientation and gender identity. While violations of EO 11246 may be discovered during compliance evaluations, discrimination based on sexual orientation and gender identity may most often be found through the investigation of discrimination complaints, according to the OFCCP. Therefore, the OFCCP issued the directive to clarify that it will accept and investigate individual and systemic complaints of discrimination based on sexual orientation and gender identity under EO 11246, as amended, applying Title VII principles and case law, as appropriate. A determination about the handling of a complaint, once accepted, is made on a case-by-case basis.

These complaints may also contain a Title VII allegation of discrimination based on sex; however, not all courts have conclusively established that sex discrimination is equivalent to discrimination based on sexual orientation or gender identity, the OFCCP directive points out. In a footnote, the directive notes – citing the EEOC’s 2012 decision in Macy v Holder (CCH Employment Practices Guide ¶6881) as well as other EEOC and federal circuit court decisions – that although sexual orientation and gender identity are not explicitly protected by Title VII, the “EEOC and private litigants continue to develop sex discrimination theory.”

Coordination with EEOC. Compliance officers or others responsible for complaint processing usually make referrals of individual complaints to the EEOC pursuant to the OFCCP’s regulation at 41 CFR Part 60-1.24(a). This provision permits, but does not require, the OFCCP to make referrals to the EEOC for processing under Title VII. Previous OFCCP policy, expressed in the agency’s Federal Contract Compliance Manual (FCCM) at Section 6B states that pursuant to a Memorandum of Understanding between the OFCCP and the EEOC, the “OFCCP will generally refer individual complaints alleging employment discrimination in violation of EO 11246 to the EEOC,” but the OFCCP will retain EO 11246 class and systemic discrimination complaints. Yet, with the signing of EO 13672, the President gave the OFCCP explicit executive authority to ensure that federal contractors and subcontractors treat applicants and employees without regard to their sexual orientation or gender identity. Therefore, Section 4 of the new directive explicitly states that the directive supersedes FCCM Section 6B and other guidance “to the extent that they may be inconsistent with” the new directive.

In light of both the express protections conferred by EO 13672, the authority provided by the OFCCP’s existing provisions to retain or refer individual complaints, and the protections developed in case law under Title VII sex discrimination theory, the OFCCP will continue to coordinate and share information with the EEOC to the maximum extent possible to remedy complaints based on sexual orientation and gender identity. Such coordination will be fact-driven and occur on a case-by-case basis. The OFCCP will continue to transfer or jointly investigate complaints when the OFCCP lacks jurisdiction and in other cases when discrimination is more completely remedied by joint investigation or by the EEOC alone.

Gender identity complaints. Under EO 11246, the OFCCP has jurisdiction to investigate federal contractors or subcontractors with a contract of $10,000 or greater. For sexual orientation complaints, the contract or subcontract must be entered into or modified on or after April 8, 2015 – i.e., the effective date of the OFCCP’s regulations implementing EO 13672. For gender identity complaints, the OFCCP asserts that, pursuant to Directive 2014-02, it has jurisdiction to accept and investigate complaints even if qualifying new or modified contracts pre-date April 8, 2015.  Directive 2014-02, effective as of August 19, 2014, clarified the OFCCP’s interpretation that gender identity is part of the protected category of “sex” and therefore, discrimination against federal contractor employees on the basis of gender identity was already prohibited prior to the effective date of the regulations implementing EO 13672.