The Law @ Work

OFCCP Issues Directive on Gender Identity and Sex Discrimination

by Kimberly A. Klimczuk

Earlier this week the Office of Federal Contract Compliance Programs (OFCCP) issued a directive clarifying that the agency’s existing guidance on discrimination on the basis of sex under Executive Order 11246 includes discrimination on the bases of gender identity and transgender status.

The OFCCP is a division of the U.S. Department of Labor and is the federal agency that administers and enforces Executive Order 11246, which imposes nondiscrimination and affirmative action requirements on federal contractors.  In administering the law, the OFCCP generally defers to the EEOC’s interpretations of federal nondiscrimination law, such as, in this case, Title VII of the Civil Rights Act of 1964.

Even though Title VII does not explicitly reference gender identity or transgender status, the EEOC has taken the position that treating a person differently because of transgender status constitutes sex discrimination because it is “related to the sex of the victim.”  The EEOC has noted that such discrimination can occur because of disparate treatment due to an individual’s failure to conform to sex or gender stereotypes, and also where an employer is willing to employ an individual when it believes that individual to be a male but then is unwilling to continue employ that same individual when it discovers she is female (or vice versa).

The OFCCP’s new directive adopts the EEOC’s interpretation of Title VII and clarifies to federal contractors that their nondiscrimination obligations extend to individuals who are transgender or otherwise do not conform to gender stereotypes.  For many employers, this will not require any change in policy, particularly in New England where most states’ laws already explicitly prohibit discrimination on the basis of gender identity (New Hampshire is the only exception), but the OFCCP’s directive is another example of the current administration finding ways to enact policy in spite of an uncooperative legislature.  We expect to see additional such measures in the not-too-distant future.

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