Existing Sex Discrimination Guidelines are About to Get a Makeover

Article by Laura Benson

On January 28, 2015, the U.S. Department of Labor issued a Notice of Proposed Rulemaking to rescind the current Sex Discrimination Guidelines, 41 C. F. R. § 60-20.1, et. seq., and replace them with provisions that would align with current law, legal interpretations and workplace environments.  The purpose of this regulation is to implement Executive Order 11246, which prohibits government contractors and subcontractors from discriminating in employment on the basis of sex.  These proposed new guidelines will benefit 65 million employees who work for federal contractors by updating the sex discrimination rules.

The current Sex Discrimination Guidelines were adopted in 1970 and have not been substantively updated since then.  Meanwhile, employer practices, women’s participation in the labor force, statutory law and case law have changed significantly.  In fact, some of the provisions still in effect deviate from well-established law and the agency no longer enforces these outdated provisions, leading to confusion among government contractors as to their legal obligations.

While the landscape for female employment has changed since 1970, the Department of Labor recognizes that sex discrimination by federal contractors has not been eradicated, issuing a statement that “significant and pervasive workplace discrimination and other barriers to equal opportunity for women continue to persist, requiring strong and clear regulations that contractors can understand.” For instance, the Sex Discrimination Guidelines do not address practices which continue to pose discriminatory barriers to women, such as the persistent wage gap (women earn, on average, 78 percent of their male counterparts’ earnings), accommodations for workers affected by pregnancy or childbirth (e.g. allowing pregnant workers to temporarily perform a light-duty assignment to accommodate lifting or bending restrictions), and the pervasive sex-based stereotyping of working mothers which suggests that caretaking responsibilities interfere with their ability to perform on the job.

The comment period for proposed regulations is closed, and it is expected that the final regulations will be issued later this year.  The new regulations will likely address issues relating to sex-based stereotyping, accommodations for pregnant employees, leave for caregivers (men included), compensation discrimination, hostile work environments, equal access for employees participating in fringe-benefit plans, and transgender discrimination.  It is the Department of Labor’s goal that these new regulations make compliance and enforcement easier and ultimately, promote economy and efficiency in federal contracting.  It is expected that the proposed rule will cost federal contractors approximately $26 million in one-time administrative setup costs, and approximately $10 million annually in order to provide the accommodations the regulations aim to achieve.