Policy Changes in Government Contracting Regarding the Rights of Lesbian, Gay, Bisexual & Transgender Persons (LGBT)

01/19/2015 by Attorney George M. Nicholos

Authored by attorney George Nicholos

The Office of Federal Contract Compliance Programs (OFCCP), which accepts and investigates administrative complaints regarding alleged acts of discrimination from applicants or employees, recently released its final ruling implementing Executive Order (EO) 13672, signed by president Obama on July 21, 2014. Executive Order 13672 amends prior Executive Order 11246 to add gender identity and sexual orientation to the protected categories of people. Essentially, the Final Rule implementing EO 13672 replaces the words “sex, or national origin” with the words “sex, sexual orientation, gender identity, or national origin” throughout the regulations set forth in EO 11246. Upon being implemented the following categories are protected from discrimination in the workplace: race, color, religion, sex, sexual orientation, gender identity, and national origin.

The Final Rule is scheduled to be published in the Federal Register in December 2014 and the rule will become effective 120 days from its publication.  The new nondiscrimination rules are not intended to be added as new terms and conditions to existing contracts, but rather will apply to federal contracts entered into or modified after the effective date. In practice, the only affirmative action obligations impacted by this rule are those contained in 41 CFR Part 60-1. Contractors can fulfill this requirement by including the updated Equal Opportunity Clause in new or modified subcontracts and purchase orders, ensuring that applicants and employees are treated without regard to their sexual orientation and gender identity. Likewise, contractors should also update equal opportunity language used in job solicitations and when posting notices.

Under OFCCP’s final rule, contractors are not required to set placement goals on the bases of sexual orientation or gender identity or to conduct any data analysis with respect to the sexual orientation or gender identity of applicants or employees. Contractors are also not required to collect any information about applicants’ or employees’ sexual orientation or gender identity, but the final rule does not prohibit contractors from asking applicants and employees to voluntarily provide this information. However, care must be taken as such a request may be prohibited by state or local law. Additionally, contractors may not use any information gathered to discriminate against an applicant or employee based on sexual orientation or gender identity.

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