President Expands OFCCP Jurisdiction to Investigating Discrimination Based on Sexual Orientation and Gender Identity

Effective immediately, federal contractors, including construction employers working on federally-funded construction projects, and federal government employers are prohibited from discriminating against applicants and employees based on sexual orientation and gender identity. On July 21, 2014, President Obama signed Executive Order 13672 which amends Executive Orders 11246 and 11478, the original Executive Orders mandating equal employment opportunities for women and minorities. Executive Order 11246 as amended now prohibits federal contractors from discriminating in employment based upon sex, national origin and the newly added classifications of sexual orientation and gender identity. Federal contractors must now ensure that job applicants and employees are free from discrimination based on sexual orientation and gender identity, and must include a statement in all job postings that applicants will be considered regardless of sexual orientation and gender identity. Executive Order 11478 as amended now prohibits federal employers from discriminating in employment based on sexual orientation and gender identity. Enforced by the Office of Federal Contract Compliance Programs (“OFCCP”), the new Executive Order requirements apply to all federal government contractors including construction contractors that hold federal contracts with a value of at least $10,000 in one year. The Executive Order applies to all covered contracts entered into on or after July 21, 2014. The Secretary of Labor will propose regulations to implement the new requirements in October 2014. The new Executive Order does not expand the affirmative action requirements or programs that are required for the classifications of sex, national origin, disability and veteran status. Moreover, the new Executive Order does not exempt religious organizations from the new anti-discrimination mandates. However, the new Executive Order did not amend President Bush’s Executive Order 13279 (Equal Protection of the Laws for Faith-Based and Community Organizations) which provides in part that “[n]o organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs.” How the new Executive Order will be enforced against religious organizations, therefore, remains an open question and will be answered somewhat by the Labor Department’s proposed regulations. Employers that are unsure as to whether the Executive Order applies to them should review coverage with legal counsel. Owing to these new requirements, federal contractors should review their policies, job postings and other hiring procedures to ensure they are in compliance. Non-compliant policies and postings should be revised immediately. Federal contractors should educate management, supervisors and their staffing and recruiting personnel regarding these new requirements to ensure they understand the wider scope of affirmative action requirements. If you have any questions or for more information about the requirements of the new Executive Order and its impact on your business’s equal employment opportunity and anti-harassment policies, please contact Patrick W. McGovern, Esq., at 973-535-7129, pmcgovern@genovaburns.com or Allison Gotfried, Esq., at 973-646-3297, agotfried@genovaburns.com.