OFCCP Issues Final Rules on Executive Order Prohibiting Contractor Discrimination on the Basis of Sexual Orientation

Earlier this week, the Department of Labor’s Office of Federal Contract Compliance Programs issued final rules implementing President Obama’s Executive Order 13672. The Order prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity. OFCCP is not submitting the rules for notice and comment, and published them in final form.

The regulations require federal contractors to amend their antidiscrimination policies to include the new protected bases. These changes will have no impact on contractors’ affirmative action plans. OFCCP also determined that existing exemptions from its antidiscrimination requirements for religious organizations will also apply to the two new protected classifications.

OFCCP’s new rules simply add sexual orientation and gender identity to the list of protected employee classifications (i.e., race, sex, national origin, etc.) in its existing regulations. They make no attempt to define the terms sexual orientation or gender identity, or to set forth any special accommodation requirements for these protected classes of employees. OFCCP apparently decided to leave questions regarding the specifics of the discrimination prohibitions to administrative and judicial interpretation when actual factual situations are presented.

The new rules impact federal contracts entered into after April 8, 2015. Most federal contractors are larger employers that have already voluntarily adopted policies prohibiting discrimination on the basis of sexual orientation. Most larger employers also have operations in locations that already prohibit such discrimination under state law. While the Executive Order may be largely symbolic, any case law or interpretations that arise from these protections may eventually affect similar measures proposed to extend to private sector employers.