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OMB approves paperwork obligations for final OFCCP rule on sexual orientation, gender identity

By Cynthia L. Hackerott, J.D.

The Office of Management and Budget (OMB) has approved the OFCCP’s request to implement the information collection requirements (ICR) of its final rule on regulatory revisions to implement Executive Order (EO) 13672, which bans discrimination by federal contractors on the basis of sexual orientation and gender identity, the OFCCP announced in a March 31 Federal Register notice (80 FR 16996).

The final rule was announced by the agency on December 3, 2014, and published in the Federal Register on December 9 (79 FR 72985). It is scheduled to take effect on April 8, 2015, and will apply to federal contractors who hold contracts entered into or modified on or after that date. The final rule itself was not subject to a notice and comment period, but pursuant to the Paper Reduction Act, the OFCCP published a notice in the December 8 edition of the Federal Register (79 FR 72703), seeking comments on its request for approval of the ICR necessary for the rule’s implementation. The deadline for comments was February 6, 2015. The OMB approved the ICR on March 17 and assigned it OMB Control Number 1250-0009. The approval expires on September 30, 2015.

Regulatory provisions. EO 13672, issued on July 21, 2014, amends the existing EO 11246 to add sexual orientation and gender identity to the list of categories of federal contractor employees protected from discrimination and also to the list of categories of employees in regard to which covered federal contractors must take affirmative action to ensure equal employment opportunity. The final rule revises the OFCCP’s regulations at 41 CFR Parts 60-1, 60-2, 60-4, and 60-50. It does not require contractors to conduct any data analysis with respect to the sexual orientation or gender identity of their applicants or employees and it does not require contractors to collect any information about applicants’ or employees’ sexual orientation or gender identity. However, it does not prohibit contractors from asking applicants and employees to voluntarily provide this information, although doing so may be prohibited by state or local law. In any event, the rule prohibits contractors from using any information gathered to discriminate against an applicant or employee based on sexual orientation or gender identity.

ICR. Among other things, the regulations amended by the final rule set forth information disclosure and reporting requirements for covered federal contractors, subcontractors, and federally assisted construction contractors and subcontractors. The ICRs addressed in the final rule include:

  • modified language in the equal opportunity clause that contractors must use in covered subcontracts and purchase orders (Sections 60-1.4(a) and (b) and 60-4.3(a));
  • modified language that contractors must use in job advertisements and employment solicitations (Sections 60-1.4(a)(2), and 1.4(b)(2)); and
  • a modification to the requirement that a contractor report to the Department of State and the OFCCP when their employees or prospective employees are denied a visa or entry to a country in which or with which it is doing business, and it believes the denial is due to a basis covered by Executive Order 11246, as amended by EO 13672 (Section 60-1.10).

Webinar. Also on March 31, the OFCCP announced an upcoming webinar in which OFCCP presenters will discuss how the agency will be processing the complaints it receives under EO 11246, as amended by EO 13672. The webinar will take place from 2:00 p.m. to 3:30 p.m. (Eastern Time) on April 8, 2015 with a repeat session on April 9.