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OFCCP Director Shiu addresses LGBT workplace issues, confusion regarding VEVRAA infographic

November 6th, 2015  |  Cynthia L. Hackerott

Addressing some recent confusion regarding the OFCCP’s infographic on protected veterans, Director Patricia A. Shiu clarified that the agency has not changed the definition of “protected veteran.” Shiu was one of several speakers featured at the National Employment Law Institute’s (NELI) Thirty-Third Annual Affirmative Action Briefing in Chicago, Illinois on October 30, 2015. The briefing was chaired by affirmative action expert John C. Fox, President and a founder of Fox, Wang & Morgan P.C. In addition to addressing the confusion regarding the infographic, Shiu discussed the agency’s new regulations on sexual orientation and gender identity, particularly in regard to transgender workers. The director also addressed the agency’s use of letters providing advance notification of compliance reviews, and the OFCCP’s recent celebration of its 50th Anniversary.

VEVRAA infographic confusion. In August 2015, the OFCCP announced that it had posted on its website a new infographic entitled, “Am I a Protected Veteran?” According to the agency announcement, the new infographic was designed to help veterans quickly and easily navigate the “protected veteran” categories to determine their eligibility for coverage under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).

VEVRAA, at 38 U.S.C. Section 4212(d), requires covered federal contractors to report annually to the Secretary of Labor on their employees and new hires who belong to the specific categories of veterans protected under the statute. Under the most recent amendments to the statute, those categories are: (1) disabled veterans; (2) veterans who served on active duty in the Armed Forces during a war or in a campaign or expedition for which a campaign badge has been authorized; (3) veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985 (61 FR 1209); and (4) recently separated veterans.

The OFCCP’s recent revisions to its regulations implementing VEVRAA (41 CFR Part 60-300), published in the Federal Register on September 24, 2013 (78 FR 58614–58679), and effective as of March 24, 2014, require federal contractors to establish a variable hiring benchmark for protected veterans as well as impose new data collection and recordkeeping requirements. Among the data collection requirements, the revised regulations at 41 CFR Part 60-300.42 require contractors to invite applicants to self-identify as protected veterans at both the pre-offer and post-offer stages of the hiring process. At the pre-offer stage, contractors must extend an invitation to self-identify generally as a “protected veteran.” The relevant FAQ section on the OFCCP website explains that, at the post-offer stage, contractors maybut are not required toinvite applicants to voluntarily self-identify as a protected veteran using the individual categories for protected veterans as defined in the text of the VEVRAA statute. In other words, contractors need only invite those offered a job to indicate whether they are protected veterans under any of the VEVRAA categories.

As to coverage under the second category of protected veterans—active duty wartime or campaign badge veteransthe infographic asks “Did you serve on active duty during one or more of the periods of war outlined in 38 U.S.C. § 101?” (emphasis added). In a footnote, the infographic states: “Period of War Dates: Korean Conflict June 27, 1950 – January 31, 1955; Vietnam Era February 28, 1961 – May 7, 1975 for veterans serving in the Republic of Vietnam or August 5, 1964 – May 7, 1975 for all other cases; Persian Gulf War August 2, 1990 – current.”

In mid-October 2015, two months after the OFCCP posted the infographic on its website, a couple of contractor community vendors posted blogs/memos/tweets with headlines/tweets stating that the OFCCP had “broadened” or “expanded” the definition of protected veteran or at least had given a broader interpretation as to who is a “protected veteran” under VEVRAA than the agency had previously indicated. This assertion was apparently based on the fact that the OFCCP used the term “period[s] of war” (as outlined in 38 U.S.C. Section 101) when detailing the category of active duty wartime or campaign badge veterans in the infographic, while the VEVRAA statute (at 38 U.S.C. Section 4212(a)(3)(ii)) and the OFCCP’s implementing regulations (at 41 C.F.R. Section 60-300.2(b)) use the term “during a war.”

In a presentation on the previous day of the briefing, Fox, noting the vendors’ assertions, explained that the term “during a period of war” covers many veterans who did not serve “during a war” (given that Congress has not declared “war” since World War II) and “during a period of war” covers many veterans since World War II who did not receive a campaign badge or service medal, including many who fought in Iraq and many now returning from active duty throughout the Middle East. Thus, the definition used in the infographic would put a lot more veterans into a contractor’s collection of employment data. He also explained that the OFCCP does not have the authority to expand the categories of protected veterans beyond those set forth in the VEVRAA statute and added that the infographic does not have the force and effect of law.

During the question and answer session following Shiu’s prepared remarks, Fox asked Shiu whether the OFCCP had intended to change the definition of “protected veteran” through the agency’s description of “active duty wartime or campaign badge veterans” in the infographic. Shiu responded that not only did the OFCCP not intend to change the definition, but the Department of Labor’s Solicitor’s Office (i.e. the OFCCP’s attorneys) maintains that the agency did not do so.

In addition, Shiu told the audience that the infographic was intended to help make it easier for protected veterans to self-identify, and, to the extent that there is any confusion, they should put their suggestions and thoughts into writing and submit them to Debra Carr, the director of the OFCCP’s Division of Policy and Program Development, who will pass them on to the Solicitor’s Office to clear up any misinformation.

Fiftieth Anniversary. In her prepared remarks, Shiu stated that 2015 was “no ordinary year” for the OFCCP because the agency marked its 50th Anniversary on September 24. After a brief review of the history of Executive Order (EO) 11246 and the OFCCP, Shiu encouraged the audience to visit the agency’s 50th Anniversary webpage. EO 13672, issued on July 21, 2014, which amended EO 11246 to add sexual orientation and gender identity to the list of protected categories, is “another chapter of the civil rights journey,” she said. Employers “have the power to create ripples of hope that translate into tangible jobs,” Shiu asserted. “You are called to lead by example,” she stated, and the OFCCP “will be there beside you.”

Sexual orientation and gender identity. On April 8, 2015, the OFCCP’s final rule on revised regulations to enforce EO 13672 took effect.  The final rule revises the OFCCP’s regulations at 41 CFR Parts 60-1, 60-2, 60-4, and 60-50, and it was published in the Federal Register on December 9, 2014 (79 FR 72985-72995). It applies to federal contractors who hold contracts entered into or modified on or after the final rule’s effective date.

The rule prohibits covered federal contractors from discriminating against an applicant or employee based on sexual orientation or gender identity and requires contractors to take affirmative action to ensure equal employment opportunity for LGBT workers. Shiu stated that regulations regarding sexual orientation and gender identity are different than those covering other protected categories because there is no requirement that federal contractors ask workers to self-identify. Moreover, the OFCCP’s regulations do not require contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees. In audits, the OFCCP will examine a contractor’s personal policies, Shiu said. For individual complaints, the OFCCP will examine each one on a case-by-case basis.

Fox asked Shiu whether federal contractors must allow a biological male transitioning to become a woman to enter a company’s female bathroom facilities and vice-versa. While again emphasizing that every case depends on its specific facts, Shiu responded that contractors generally would have to allow transitioning employees such access, adding that transgender employees are no more likely to engage in criminal activities than any other category of worker. In addition, Shiu referenced OSHA’s sanitation standard, which requires that all employers under its jurisdiction provide employees with sanitary and available toilet facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them.

As a follow-up, Fox asked whether federal contractors must allow a biological male transitioning to become a woman access to the female shower room of a corporate exercise facility. That is a trickier issue, Shiu said, adding that the OFCCP has not yet developed guidance to address it.  Along those lines, Fox asked if the OFCCP will develop a model policy regarding transgender workers. Shiu reported that the OFCCP is working with the Williams Institute at UCLA law school to develop such a policy. In the meantime, employers may want to review the Office of Personal Management’s policy, which Shiu said she understood to be one of the best.

In sum, Shiu observed that issues regarding sexual orientation and gender identity in the workplace are complicated, and she said the contractors should reach out to the OFCCP for guidance with specific questions.

CSALs. The OFCCP sent its last round of Corporate Scheduling Announcement Letters (CSALs) in November 2014. Sent as a courtesy to federal contractors, the CSAL provides advance notification of compliance reviews and is intended to facilitate the contractor’s production of materials and information should that contractor receive an audit scheduling letter and be selected for an evaluation. The OFCCP’s audit scheduling cycle for supply and service contractor establishments is based on its Fiscal Year (FY), which runs from October 1 through September 30. In past practice, each Federal Contractor Selection System (FCSS) scheduling cycle has generally included two scheduling list releases per FY.

On the day of the briefing prior to Shiu’s appearance, Fox pointed out that the OFCCP did not send a second round of CSALs for FY 2015, and is still working of the same list of 2,500 establishments from the round sent in November 2014. In light of this circumstance, Fox asked Shiu if the agency will continue sending CSALs in the future. Stating that CSALs are voluntary on the part of the agency (i.e. not required of the OFCCP by law), Shiu said that she thinks they are important and that the agency will continue to send them.

The speakers. As OFCCP Director, Shiu oversees a staff of 650 employees nationwide. She also serves on the National Equal Pay Enforcement Task Force and represents the Secretary of Labor  on the federal Interagency Working Group of the White House Initiative on Asian Americans and Pacific Islanders.

Fox is the President and a founder of Fox, Wang & Morgan P.C.  in Los Gatos, California. He leads large and complex litigation matters in state and federal courts, in cases involving wage-hour and discrimination class actions, trade secret claims, employment contract disputes, wrongful termination, corporate investigations, and the use of statistics in employment matters. Fox previously served as Executive Assistant to the Director of the OFCCP, where he was responsible for all enforcement and policy matters.

NELI’s Thirty-Third Annual Affirmative Action Briefing was held in Chicago on October 29-30, 2015. For more information on NELI, including its publications and future programs, call (303) 861-5600 or go to NELI’s website at: www.neli.org.

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* Update: In December 2015, the OFCCP posted two new FAQs to address the confusion regarding the agency’s infographic on protected veterans. These FAQs: (1) confirm that the OFCCP has not changed (and cannot change) the definition of “protected veteran” under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA); and (2) clarify how the OFCCP determines the scope of the “active duty wartime” category of protected veteran.

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