United States: New Government Contractor Regulations Define And Prohibit Workplace Sexual Bias

Mary E. "Mary Beth" Bosco and Robert K. "Bob" Tompkins are both partners at our Washington, D.C. office and Kara M. Ariail is a Partner in our North Virginia office.


  • The OFCCP's proposed regulations for government contractors are the first major overhaul of its sexual discrimination guidelines in more than 40 years.
  • The changes are significant and identify specific examples of prohibited conduct.
  • The proposed regulations codify existing OFCCP practice banning discrimination based on gender identity or gender status.

The Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) has proposed the first major substantive changes to its Sex Discrimination Guidelines in more than 40 years. The new regulations are significant in that they seek to identify and prohibit inherent discrimination in the workplace based on sex, and thus address behaviors and practices not previously expressly regulated. Interested persons have until March 31, 2015, to submit comments on the Jan. 30, 2015, Notice of Proposed Rulemaking (NPRM). The NPRM was published in the Federal Register. 80 Fed. Reg. 5245 (Jan. 30, 2015).

While styled as "guidelines," OFCCP's regulatory preamble restates the policy that the provisions are in fact requirements for federal government contractors, subcontractors, and federally assisted construction contractors and subcontractors. One of the key differences between the proposed and existing regulations is the proposal's identification of specific practices considered to be discriminatory. To that end, the new regulations are re-organized around general prohibited practices, such as gender discrimination in pay, which are then supplemented with specific examples tied to each element of pay, such as opportunities to obtain overtime. OFCCP's analyses supporting the new regulations tie the regulatory examples to judicial decisions overturning specific discriminatory practices.

The new regulations also codify OFCCP's policy, as stated in OFCCP Directive 2014-02, "Gender Identity and Sex Discrimination" (Aug. 19, 2014), that discrimination based on gender identity or transgender status is a form of sex discrimination. A new section was added that prohibits discrimination based on sex-based stereotypes, including adverse treatment based on an individual's failure to adhere to certain gender norms. Overall, the NPRM seeks to align the guidelines with the case law and public policy as they have evolved over the past 40 years.

General and Specific Prohibitions Relating to Employment Practices

The new regulations begin with this general prohibition: "It is unlawful for a contractor to discriminate against any employee or applicant for employment because of sex." For purposes of this statement, the term "sex" includes pregnancy, childbirth or related medical conditions, gender identity and transgender status. To be able to make a hiring or employment decision based on sex, a contractor must show that sex is a bona fide occupational qualification reasonably necessary to the normal operation of the contractor's business.

The regulations expand on the general prohibition by providing specific examples of sex-based discriminatory practices in employment and hiring. These are:

  • making a distinction between married and unmarried persons that is not equally applied to both sexes
  • denying women with children an employment opportunity that is available to men with children
  • firing, or otherwise treating adversely, unmarried women, but not unmarried men, who become parents
  • imposing any differences in retirement age or other terms, conditions, or privileges of retirement on the basis of sex
  • restricting job classifications on the basis of sex
  • maintaining seniority lines and lists based on sex
  • recruiting or advertising for individuals for certain jobs on the basis of sex
  • distinguishing on the basis of sex in apprenticeship or other training programs, in opportunities such as networking, mentoring, individual development plans and in performance appraisals
  • making facilities or employment-related activities available to only one sex (except that if changing facilities are provided, the contractor must ensure that they ensure privacy)
  • denying transgender employees access to the bathrooms used by the gender with which they identify
  • treating an employee or applicant adversely because he or she has undergone, is undergoing, or is planning to undergo sex-reassignment surgery or other processes or procedures designed to facilitate the adoption of a sex or gender other than the individual's designated sex at birth

Of particular note is the fact that the new regulations eliminate unreasonable cost as a basis to justify an inability to provide appropriate facilities for both sexes.

As with the general employment practices, the NPRM enunciates an overarching prohibition on pay discrimination, and then lists specific practices that constitute sex-based compensation discrimination. For example, organizations doing business with the government or a government prime contractor may not (1) pay different compensation to similarly situated employees on the basis of sex; (2) grant or deny higher-paying wage opportunities such as job classifications, work assignments, training, overtime hours, incentive compensation, or development programs on the basis of sex; or (3) utilize performance review systems that have an adverse impact on the basis of sex. Similarly, contractors may not discriminate on the basis of sex in connection with providing fringe benefits.

Prohibitions on Discrimination Based on Pregnancy, Childbirth and Related Medical Conditions

The NPRM adds new sections detailing prohibited discriminatory practices based on pregnancy and childbirth, including health insurance and leave. With respect to pregnancy and children, the regulations make clear that disparate treatment based on the capacity to have children is a prohibited practice. For example, refusing to hire based on an individual's child-bearing age or capacity is an expressly prohibited practice. On a more subtle level, eliminating a pregnant woman for consideration of a position involving travel might constitute a violation of the regulations.

As for insurance, the regulations prohibit contractors from providing health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth, or related medical conditions, including contraceptive coverage, to the extent that hospitalization and other medical costs are covered for medical conditions. However, contractors are not required to offer insurance that covers abortions unless the life of the mother is in danger or where medical complications have arisen from an abortion. Medical leave for pregnancy, childbirth or related medical conditions must be provided on the same terms as leave for other medical conditions that are similar in their effect on the employee's work. Lastly, family leave for male employees must be the same as family leave for female employees.

Prohibition on Discrimination Based on Sex-Based Stereotypes

The regulations now expressly ban discrimination on the grounds of sex-based stereotypes, such as stereotypes about how "males and/or females are expected to look, speak, or act." They list specific examples of such discrimination based on recent case law:

  • failure to promote a woman or treating a woman adversely because of sex stereotypes involving dress such as jewelry, make-up or high heels
  • harassment of a male because he is considered insufficiently masculine or effeminate
  • adverse employment treatment because an employee is in a same-sex relationship
  • adverse employment treatment because of gender identity or transgender status
  • adverse employment treatment because of stereotypes arising from caregiver roles; more specifically, the NPRM prohibits failure to provide women with opportunities because of assumptions about their care-giving roles interfering with their work responsibilities or to treat men differently if they decide to take leave to care for newborn or adopted children

Sexual Harassment Is Now an Express Violation

Lastly, the proposed OFCCP regulations now make sexual harassment and the presence of a hostile work environment express violations of the rules. They prohibit "unwelcome sexual advances, requests for sexual favors, offensive remarks about a person's sex, and other verbal or physical conduct of a sexual nature" when submission to such conduct is either an explicit or implicit condition of employment or create an offensive or intimidating working environment. The regulations stop short of requiring sexual harassment training for all employees. Instead, they advise that it is a "best practice" to implement procedures to prevent sexual harassment. These procedures include communicating to all employees that harassing conduct will not be tolerated, providing anti-harassment training, and having established mechanisms for receiving and resolving complaints about sexual harassment.

OFCCP Proposal Designed to Align with Recent Case Law

OFCCP's new regulatory proposal seeks to align the agency's sex discrimination guidelines with the recent case law and its own developing policies. The proposal's delineation of specific prohibited practices makes clear that individual behavior can expose an entire organization to risk. Government contractors, as well as other institutions, therefore should review their current sexual discrimination policies and practices to ensure that they reflect OFCCP's attempt to eliminate not just overt, but inherent, discrimination based on sex. To this end, employee and management training programs should be scrutinized and, where appropriate, revamped, to address the types of behavior prohibited by OFCCP's new proposed rules.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions