Department of Labor Issues Directive Providing Guidance on Executive Order 11246

Tuesday, August 26, 2014
The Department of Labor issued an Office of Federal Contract Compliance Programs Directive which provides guidance to staff and federal contractors on enforcement and compliance policy procedures.  The Directive does not change the laws and regulations governing programs or establish any legal rights or obligations, but serves as a clarification of the law.

This Directive 2014-02 clarifies the existing agency guidance on discrimination on the basis of sex under Executive Order 11246, as amended, and includes discrimination based on gender identity and transgender status.  The Directive is effective immediately and applies to all current federal contractors and subcontractors subject to the nondiscrimination provisions of Executive Order 11246.  

OFCCP enforces Executive Order 11246, as amended, a law that prohibits federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, or national origin.  OFCCP interprets the nondiscrimination obligations under Executive Order 11246 in accordance with Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (Title VII), which prohibits employers from discriminating on the same protected bases.  This means that OFCCP enforces the nondiscrimination obligations under Executive Order 11246 by following Title VII and the case law principles that have developed interpreting that statute. Additionally, since the Equal Employment Opportunity Commission (EEOC) is the lead federal agency responsible for administering and enforcing Title VII, pursuant to Executive Order 12067, OFCCP generally defers to the EEOC’s interpretations of Title VII law.

Under current Title VII case law principles, discrimination based on gender identity or transgender status is discrimination based on sex. In its decision in Macy v. Holder, 2012 WL 1435995, the EEOC unanimously concluded that discrimination because a person is transgender is sex discrimination in violation of Title VII. The complainant in Macy, a transgender woman working as a police detective, alleged that she was denied a job with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) when she informed the ATF that she was in the process of transitioning from male to female. The EEOC concluded that discrimination on these grounds was discrimination “on the basis of sex,” citing both the text of Title VII and multiple federal court decisions interpreting the statute.

OFCCP’s directive requires the agency to investigate and seek remedies for sex discrimination that occurs because of an applicant’s or employee’s gender identity or transgender status. - See more at:
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