OFCCP Issues New Agency Directive On Gender Identity, Sex Discrimination

Stay informed and ready to meet both everyday challenges and long-term planning and policy-making goals, with focused news, practical information, and strategic insights on all HR-related developments.


By Jay-Anne Casuga

Aug. 19 — The Labor Department's Office of Federal Contract Compliance Programs Aug. 19 released a new agency directive to clarify that sex-based employment discrimination under Executive Order 11,246 includes bias based on gender identity and transgender status.

The OFCCP's Directive 2014-02 follows President Barack Obama's issuance of EO 13,672, which prohibits federal contractors from discriminating against lesbian, gay, bisexual and transgender employees and applicants.

However, the OFCCP said the new directive doesn't address gender identity or sexual orientation as “stand-alone” protected categories, which were created under the president's July 2014 order. The OFCCP is currently working on drafting proposed rules that would implement EO 13,672.

Instead, the new directive clarifies that the OFCCP will follow the Equal Employment Opportunity Commission's ruling in Macy v. Holder, EEOC, No. 0120120821, 4/20/12, in which the commission recognized bias based on gender identity as cognizable sex discrimination under Title VII of the 1964 Civil Rights Act.

The OFCCP generally follows Title VII principles when enforcing EO 11,246.

“In accordance with Macy v. Holder and the Title VII case law on which it is based, OFCCP continues to fully investigate and seeks to remedy instances of sex discrimination that occur because of an employee's gender identity or transgender status,” the OFCCP said.

Several attorneys in March shared with Bloomberg BNA their thoughts and ideas on how the OFCCP might incorporate Macy into its enforcement efforts.

Text of the directive is available at http://op.bna.com/dlrcases.nsf/r?Open=jaca-9n5sjl.