Some employer-advocacy groups, including the Society for Human Resource Management, are urging the Labor Department’s Office of Federal Contract Compliance Programs not to overreach its statutory authority as it revises decades-old sex discrimination guidelines.

The OFCCP received 552 public comments in response to its January notice of proposed rulemaking to update its sex discrimination guidelines, which the agency first issued in 1970 and again in 1978. The guidelines “are woefully out of date and don't reflect established law or the reality of modern workplaces” OFCCP Director Patricia A. Shiu said in a Jan 28 statement.

Nancy Hammer, senior government affairs policy counsel at SHRM, tells Bloomberg BNA what her organization hopes the agency will consider in drafting updated sex discrimination guidelines under Executive Order 11,246.

“We understand that the guidelines needed updating because there have been so many charges in the case law since the guidelines have been issued. The question is are they being updated in a way that brings them into alignment with current law or are they going further in some cases,” Hammer told Bloomberg BNA the day before the U.S. Supreme Court issued its ruling in Young v. United Parcel Service.

Young Ruling Affects Proposal, Comments

On March 25, the Supreme Court held that an employer may violate Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act, if it fails to offer an accommodation to a pregnant employee with a light-duty work restriction, while providing the same accommodation to nonpregnant employees with temporary impairments.

The majority opinion, however, rejected the Equal Employment Opportunity Commission 2014 guidance's broad interpretation of the PDA, finding that the statute doesn’t grant pregnant employees “an unconditional most-favored-nation status.”

The Young decision prompted the OFCCP to extend the comment period on the NPRM to April 14, so that the public could address the decision’s implications in its submitted comments. The OFCCP adopts the legal principles under Title VII in enforcing the nondiscrimination provisions of EO 11,246.

SHRM, the Equal Employment Advisory Council and the College and University Professional Association for Human Resources filed a joint-comment statement advising, among other things, the OFCCP to resist adopting legal theories into the final guidelines that are still in a state of flux within the federal court system.

Bloomberg BNA interviewed Hammer during SHRM’s employment law and legislative conference in late March and followed up with her via e-mail a few days before the group submitted a joint-comment statement on the NRPM.

Bloomberg BNA: How did the Supreme Court ruling in Young affect your comments?

Hammer: The OFCCP’s proposal incorporates the EEOC’s pregnancy guidance which the Supreme Court ruled in Young, was not entitled to deference by the Court.  We, therefore, suggest that OFCCP remove the provisions of the NPRM that mirror EEOC’s invalidated guidance.

Bloomberg BNA: What did SHRM basically say in its comments?

Hammer:  While we agree that the guidelines are out of date and should be updated to reflect current Title VII jurisprudence, the OFCCP does not have the authority to promulgate interpretive regulations that have the full force and effect of law, as they attempt to do with this proposal.

In light of Young, we urge the OFCCP to reiterate the standards consistent with the text of Title VII, that discrimination on the basis of pregnancy, childbirth, or related conditions constitutes unlawful sex discrimination, but to refrain from including interpretations found in EEOC’s guidance and invalidated by the Court.

We also recommend that the OFCCP consider the following: revise the NPRM to make clear that the examples used represent conduct that might be discriminatory under certain circumstances, rather than presenting them as per se unlawful; clarify that not all sex-referent job titles constitute discrimination; and remove the section on discriminatory compensation because compensation discrimination is already identified as a prohibited activity. As currently written, the NPRM implies that EO 11,246 and Title VII mandate across-the-board pay equity even when legitimate, nondiscriminatory reasons justify pay differentials.

Bloomberg BNA: Is there a provision in the proposal that you think goes too far in terms of OFCCP interpreting sex discrimination under Title VII?

Hammer:  We are concerned about the provisions that adopt EEOC’s pregnancy guidance because it was rejected by the Supreme Court in Young.  Because EO 11,246 lists sex, sexual orientation and gender identity as three separate bases of discrimination, we would like to see gender identity and sexual orientation have their own separate guidance rather than combining with sex.

Although the EEOC has interpreted Title VII to cover gender identity and sexual orientation as a type of sex discrimination, this theory has not been well tested in, or settled by, the federal courts.

Bloomberg BNA: Any final thoughts on the proposal?

Hammer: To be useful to employers, the guidance needs to reflect statutory amendments to Title VII and binding judicial interpretations of the law that have occurred since the guidelines were first written.  Unfortunately, the OFCCP exceeds this objective by including unsupported theories of discrimination and categorically labeling some conduct as per se unlawful without any legal basis or authority.

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