# Discrimination on the Basis of Sex > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-01422 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** January 30, 2015 - **Citation:** 80 FR 5246 ## Text DEPARTMENT OF LABOR Office of Federal Contract Compliance Programs 41 CFR Part 60-20 [01 14 15 OFCCP] RIN 1250-AA05 Discrimination on the Basis of Sex AGENCY: Office of Federal Contract Compliance Programs, Labor. ACTION: Notice of proposed rulemaking. SUMMARY: The U.S. Department of Labor's (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) is proposing regulations that would set forth requirements that covered Federal Government contractors and subcontractors and federally assisted construction contractors and subcontractors must meet in fulfilling their obligations under Executive Order 11246, as amended, to ensure nondiscrimination in employment on the basis of sex and to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their sex. This proposal would substantially revise the existing Sex Discrimination Guidelines, which have not been substantively updated since 1970, and replace them with regulations that align with current law and legal principles and address their application to current workplace practices and issues. Most of the proposed provisions in this NPRM would clarify well-established case law or applicable requirements from other Federal agencies and therefore would not change existing requirements for entities affected by this rule. The NPRM's approach with respect to pregnancy accommodation is consistent with the interpretation of the Pregnancy Discrimination Act adopted by the Equal Employment Opportunity Commission (EEOC) and by the Government in Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted (U.S. No. 12-1226, July 1, 2014). DATES: To be assured of consideration, comments must be received on or before March 31, 2015. ADDRESSES: You may submit comments, identified by RIN number 1250-AA05, by any of the following methods: • Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments. • Fax: (202) 693-1304 (for comments of six pages or less). • Mail: Debra A. Carr, Director, Division of Policy, Planning, and Program Development, Office of Federal Contract Compliance Programs, Room C-3325, 200 Constitution Avenue NW., Washington, DC 20210. Receipt of submissions will not be acknowledged; however, the sender may request confirmation that a submission has been received by telephoning OFCCP at (202) 693-0104 (voice) or (202) 693-1337 (TTY) (these are not toll-free numbers). All comments received, including any personal information provided, will be available for public inspection during normal business hours at Room C-3325, 200 Constitution Avenue NW., Washington, DC 20210, or via the Internet at http://www.regulations.gov. Upon request, individuals who require assistance to review comments will be provided with appropriate aids such as readers or print magnifiers. Copies of this Notice of Proposed Rulemaking (NPRM) will be made available in the following formats: Large print, electronic file on computer disk, and audiotape. To schedule an appointment to review the comments and/or to obtain this NPRM in an alternate format, please contact OFCCP at the telephone numbers or address listed above. FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of Policy, Planning and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW., Room C-3325, Washington, DC 20210. Telephone: (202) 693-0104 (voice) or (202) 693-1337 (TTY). SUPPLEMENTARY INFORMATION: Executive Summary Purpose of the Regulatory Action The U.S. Department of Labor's (“DOL”) Office of Federal Contract Compliance Programs (“OFCCP”) is proposing regulations that would set forth requirements that covered 1 Federal Government contractors and subcontractors and federally assisted construction contractors and subcontractors must meet in fulfilling their obligations under Executive Order 11246, as amended, to ensure nondiscrimination in employment on the basis of sex and to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their sex. The OFCCP is charged with enforcing Executive Order 11246, as amended (“Executive Order”), which prohibits covered Federal Government contractors and subcontractors and federally assisted construction contractors and subcontractors (“contractors”) from discriminating in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. 2 The Executive Order also requires contractors to ensure equal employment opportunity for employees and applicants for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin and to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to the enumerated bases. OFCCP interprets the nondiscrimination provisions of the Executive Order consistent with the principles of title VII of the Civil Rights Act of 1964 (“title VII”), 3 which is enforced, in large part, by the Equal Employment Opportunity Commission (“EEOC”), the agency responsible for coordinating the Federal government's enforcement of all Federal statutes, Executive Orders, regulations, and policies requiring equal employment opportunity. 4 1 41 CFR 60-1.5 exempts certain Federal and federally assisted contractors and subcontractors from coverage. That section exempts contracts and subcontracts not exceeding $10,000 (§ 60-1.5(a)(1)); certain contracts and subcontracts for indefinite quantities (§ 60-1.5(a)(2)); work performed outside the United States by employees who were not recruited within the United States (§ 60-1.5(a)(3)); contracts with certain religious entities and educational institutions (§ 60-1.5(a)(5) and (6)); specific contracts and facilities exempted by the Director of the OFCCP when required by “special circumstances in the national interest” (§ 60-1.5(b)(1)) or because they are “separate and distinct from activities . . . related to the performance of the contract or subcontract” (§ 60-1.5(b)(2); and contracts determined to be essential to the national security (§ 60-1.5(c)). 2 Executive Order 13672, issued on July 21, 2014, added sexual orientation and gender identity to Executive Order 11246 as prohibited bases of discrimination. It applies to contracts entered into on or after April 8, 2015, the effective date of the implementing regulations promulgated thereunder. 3 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-17; U.S. Department of Labor, Office of Federal Contract Compliance Programs, Federal Contract Compliance Manual, ch. 2, § 2H01(c), available at http://www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf (last accessed June 6, 2014) (hereinafter FCCM). 4 Executive Order 12067, 43 FR 28967, 3 CFR, 1978 Comp., p. 206. The U.S. Department of Justice also enforces portions of title VII, as do state Fair Employment Practice Agencies (FEPA). The Sex Discrimination Guidelines at 41 CFR part 60-20 (“Guidelines”) set forth interpretations and guidelines for implementing the Executive Order's nondiscrimination and affirmative action requirements related to sex. These Guidelines have not been substantively updated since they were first promulgated in 1970, 5 and fail to conform to or reflect current title VII jurisprudence or to address the needs and realities of the modern workplace. Since 1970, there have been historic changes to sex discrimination law, in both statutory and case law, and to contractor policies and practices as a result of the nature and extent of women's participation in the labor force. Because the existing guidelines are so outdated, they may cause some Federal contractors to incur unnecessary legal and/or management expenses to resolve confusion about possibly conflicting obligations; updating the regulations will reduce the costs that such contractors may now incur. 5 35 FR 8888, June 9, 1970. The Guidelines were reissued in 1978 without substantive amendment. 43 FR 49258, October 20, 1978. It is long overdue for part 60-20 to be updated. Consequently, OFCCP proposes in this NPRM to revise the Sex Discrimination Guidelines to align the sex discrimination standards under Executive Order 11246 with developments and interpretations of existing title VII principles and OFCCP's corresponding interpretation of the Executive Order. Statement of Legal Authority Issued in 1965, and amended several times in the intervening years—including once in 1967, to add sex as a prohibited basis of discrimination, and most recently in 2014, to add sexual orientation and gender identity to the list of protected bases 6 —Executive Order 11246 has two purposes. First, it prohibits covered Federal contractors and subcontractors from discriminating against employees and applicants because of race, color, religion, sex, sexual orientation, gender identity, or national origin. Second, it requires covered Federal contractors and subcontractors to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. The nondiscrimination and affirmative action obligations of Federal contractors and subcontractors cover all aspects of employment. 6 Executive Order 13672, 79 FR 42971 (July 23, 2014). The requirements of the Executive Order promote the goals of economy and efficiency in Government contracting, and the link between them is well established. See, e.g, Executive Order 10925, 26 FR 1977 (March 8, 1961) (nondiscrimination and affirmative employment programs ensure “the most efficient and effective utilization of all available manpower”). Executive Order 11246 regulations require government contractors to conduct outreach to broaden the qualified applicant pool; to identify and eliminate any discriminatory practices; to apply merit principles; to choose applicants for employment without regard to race, sex, or national origin; and to report their results. See, e.g., 41 CFR 60-2.10, 60-2.11, 60-2.14, 60-2.16, 60-2.17, 60-20.6. The sex discrimination regulations proposed herein outline the sex-discriminatory practices that contractors must identify and eliminate, and clarify how contractors must choose applicants for employment without regard to sex. See, e.g., proposed § 60-20.2 (clarifying that sex discrimination includes discrimination on the bases of pregnancy, childbirth, related medical conditions, gender identity, and transgender status, and that disparate treatment and disparate impact analyses apply to sex discrimination); § 60-20.3 (clarifying application of the bona fide occupational qualification (BFOQ) defense to the rule against sex discrimination); § 60-20.4, § 60-20.5, § 60-20.6, and § 60-20.8 (clarifying that discrimination in compensation; discrimination based on pregnancy, childbirth, or related medical conditions; discrimination in other fringe benefits; and sexual harassment, respectively, can be unlawful sex-discriminatory practices); and § 60-20.7(c) (clarifying that contractors must not choose applicants based on sex stereotypes such as “a sex-based assumption that [a female employee] . . . will have . . . family caretaking responsibilities [that] will interfere with her work performance”). Each of these requirements ultimately reduces the government's costs and increases the efficiency of its operations by ensuring that all employees and applicants, including women, are fairly considered and that, in its procurement, the government has access to, and ultimately benefits from, the best qualified and most efficient employees. Cf. Contractors Ass'n of E. Pa. v. Sec'y of Labor, 442 F.2d 159, 170 (3d Cir. 1971) (“[I]t is in the interest of the United States in all procurement to see that its suppliers are not over the long run increasing its costs and delaying its programs by excluding from the labor pool available minority workmen.”). The proposed regulations' requirements to eliminate discrimination and to choose applicants without regard to sex also are consistent with the purposes of Title VII to eliminate discrimination in employment. The requirements in Executive Order 11246 generally apply to any business or organization that (1) holds a single Federal contract, subcontract, or federally assisted construction contract in excess of $10,000; (2) has Federal contracts or subcontracts that, combined, total in excess of $10,000 in any 12-month period; or (3) holds Government bills of lading, serves as a depository of Federal funds, or is an issuing and paying agency for U.S. savings bonds and notes in any amount. Pursuant to Executive Order 11246, receiving a Federal contract comes with a number of responsibilities. Section 202 of this Executive Order requires every covered contractor to agree to comply with all provisions of the Executive Order and the rules, regulations, and relevant orders of the Secretary of Labor. A contractor in violation of Executive Order 11246 may be subject to suit for make-whole and injunctive relief and to having its contracts canceled, terminated, or suspended or to debarment after the opportunity for a hearing. 7 7 Executive Order 11246, § 209(5); 41 CFR 60-1.27. Major Proposed Revisions For the reasons stated above, OFCCP proposes to revise the Guidelines at part 60-20 to create new sex discrimination regulations that set forth Federal contractors' obligations under Executive Order 11246, in accordance with existing law and policy. This proposal updates the Guidelines to address current issues in the workplace, and clarifies existing title VII law as it relates to sex discrimination, including developments and interpretations of existing law by the EEOC and OFCCP's corresponding interpretation of the Executive Order. It is intended to state clearly the existing principles applicable to a contractor's obligation to refrain from discrimination in its employment policies and practices because of sex and to ensure equal employment opportunity on the basis of sex. The proposal removes a number of outdated provisions in the current Guidelines; restates, reorganizes, and clarifies others; and adds new ones that address legal developments that have arisen since 1970. Where current provisions of the Guidelines are uncontradicted by the proposed part 60-20, but are omitted because they are, as a practical matter, outdated, their omission does not mean that they are not still good law. For example, paragraph 60-20.2(b) currently states that “[a]dvertisement in newspapers and other media for employment must not express a sex preference unless sex is a bona fide occupational qualification for the job.” This is a correct statement of the law, but does not have much practical effect, because few job advertisements today express a sex preference. 8 OFCCP seeks comments on whether any of the provisions proposed for deletion continue to be useful. 8 Recruitment for individuals of a certain sex for particular jobs, including recruitment by advertisement, is covered in proposed § 60-20.2(g). The proposed amendments to part 60-20 offered herein do not in any way alter a contractor's obligations under all other OFCCP regulations. In particular, a contractor's obligations to ensure equal employment opportunity and to take affirmative action, as set forth in parts 60-1, 60-2, 60-3, and 60-4 of this title, remain in effect. Similarly, inclusion of a provision in part 60-20 does not in any way alter a contractor's obligations to ensure nondiscrimination on the basis of race, color, religion, national origin, sexual orientation, and gender identity, under the Executive Order; on the basis of disability under Section 503 of the Rehabilitation Act of 1973 (“Section 503”); 9 or on the basis of protected veteran status under 38 U.S.C. 4212 of the Vietnam Era Veterans' Readjustment Assistance Act. 10 9 29 U.S.C. 793. 10 38 U.S.C. 4212. Benefits of the Proposed Rule The proposed rule would benefit both Federal contractors and their employees in several ways. First, by consolidating, updating, and clearly and accurately stating the existing principles of applicable law, including developments and interpretations of existing law by the EEOC and OFCCP's corresponding interpretation of the Executive Order, the proposed rule will facilitate contractor understanding and compliance and thus reduce contractor costs. As discussed above, the existing guidelines are extremely outdated and therefore do not provide sufficient or even accurate guidance to contractors regarding their nondiscrimination obligations. In fact, because OFCCP's interpretations of a contractor's nondiscrimination mandate on the basis of sex follow title VII principles, OFCCP no longer enforces part 60-20 to the extent that it departs from existing law. Maintenance of these outdated and inaccurate guidelines in the regulations may cause Federal contractors to incur unnecessary legal and/or management expenses to resolve confusion about possibly conflicting obligations. Thus, the NPRM will directly reduce the costs that some contractors may now incur when attempting to comply with part 60-20. OFCCP requests comment on the amount of cost savings covered entities may realize because of this rule. The NPRM would also benefit the employees and job applicants of Federal contractors and subcontractors. In general, by making it easier for Federal contractors to comply with the law, this regulation would increase equality of employment opportunity for the millions of women working for Federal contractor establishments. Sixty-five million employees work for the Federal contractors and other recipients of Federal monies that are included in the General Service Administration's System for Award Management (SAM) database. 11 Based on Bureau of Labor Statistics data showing that 47 percent of the workforce is female, 12 OFCCP estimates that 30.6 million of the employees who work for the Federal contractors and other recipients of Federal monies are women. 11 U.S. General Services Administration, System for Award Management, Legacy CCR Extracts Public (“FOIA”) Data Package, May 2014, available at https://www.sam.gov/portal/public/SAM/ (last accessed June 14, 2014). 12 Women in the Labor Force: A Databook 2, BLS Reports, available at http://www.bls.gov/cps/wlf-databook-2012.pdf (last accessed Oct. 6, 2014) [hereinafter Women in the Labor Force]. More specifically, the NPRM would advance the employment status of female employees of Federal contractors in several ways. First, it would address both quid pro quo and hostile-environment sexual harassment. Second, it would clarify that adverse treatment of an employee because of gender-stereotyped assumptions about family caretaking responsibilities is discrimination. It would clarify that childcare leave must be available to fathers on the same terms as they are to mothers. It would also confirm the requirement that contractors provide equal retirement benefits to male and female employees, even if doing so costs more for one sex than the other. In addition, by clarifying when pregnant workers are entitled to workplace accommodations, this rulemaking will protect pregnant employees who work for Federal contractors from losing their jobs, wages, and health care coverage. OFCCP estimates that 2,046,850 women in the Federal contractor workforce are likely to become pregnant each year. Moreover, by clarifying that discrimination against an individual because of her or his gender identity is unlawful sex discrimination, the NPRM would ensure that contractors are aware of their nondiscrimination obligations with respect to transgender employees and would assure equality of opportunity for transgender employees, the vast majority of whom report that they have experienced discrimination in the workplace. 13 13 Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, National Center for Transgender Equality & National Gay and Lesbian Task Force, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, (2011), available at http://transequality.org/PDFs/Executive_Summary.pdf (last accessed Oct. 3, 2014) [hereinafter Injustice at Every Turn]. Finally, the NPRM would benefit public understanding of the law. Removing an “outmoded” and “ineffective” rule from the Code of Federal Regulations is in the public interest. This public interest is reflected in Section 6 of Executive Order 13563, which requires agencies to engage in retrospective analyses of their rules “and to modify, streamline, expand, or repeal [such rules] in accordance with what has been learned.” Costs of the Proposed Rule A detailed discussion of the costs of the proposed rule is included in the section on Regulatory Procedures, infra. In sum, the proposed rule should create relatively minimal administrative and other cost burdens for contractors. The only new administrative burden the proposed rule would create for contractors would be the one-time cost of regulatory familiarization—the estimated time it takes for contractors to review and understand the instructions for compliance—calculated at just under $26 million, or $52 per contractor company, the first year. The only other new cost burden this rule would create for contractors would be the cost of pregnancy accommodations, which OFCCP calculates to be under $10 million annually, or $19 per contractor company, per year. 14 14 OFCCP estimates approximately 2,046,850 women in the Federal contractor workforce would be pregnant in a year, of whom 21 percent work in job categories likely to require accommodations that might involve more than a de minimis cost. Because the incidence of medical conditions during pregnancy that require accommodations ranges from 0.5 percent (placenta previa) to 50 percent (back issues), OFCCP estimates that of the women in positions that require physical exertion or standing, half may require some type of an accommodation or light duty. Based on a study finding that the employers of 91 percent of pregnant women who needed and requested a change in duties such as less lifting or more sitting attempted to address their needs, the proposed rule would require covered contractors to accommodate the nine percent of women whose needs were not addressed or would not have been addressed had they requested accommodation. According to the Job Accommodation Network, the average cost of an accommodation is $500. Therefore, OFCCP estimates that the cost would be $9,671,000 (2,046,850 × 21% × 50% × 9% × $500). Together, these costs amount to under $36 million, or $71 per contractor company, the first year; and under $10 million, or $19 per contractor company, each subsequent year. Reasons for Amending the Current Sex Discrimination Guidelines, 41 CFR 60-20 The existing statement of the purpose of the current Guidelines demonstrates their outdated nature. As the “title and purpose” section of current part 60-20 states, the Guidelines were first adopted because sex discrimination was perceived as presenting “special problems [of] implementation” that required “a definitive treatment beyond the terms of the [executive] order itself.” 41 CFR 60-20.1. Five sections, covering “recruitment and advertisement,” “job policies and practices,” “seniority system,” “discriminatory wages,” and “affirmative actions,” currently follow § 60-20.1. Since the Guidelines were promulgated in 1970, there have been dramatic changes in women's participation in the workforce. Between 1970 and December 2013, women's participation in the labor force grew from 43 percent to 57 percent. 15 This included a marked increase in employment of mothers: The labor force participation of women with children under the age of 18 increased from 47 percent in 1975 to 70 percent in 2013. 16 In 2013, both adults worked at least part time in 59 percent of married-couple families with children under 18, and 73 percent of mothers heading single-parent families with children under 18 worked at least part time. 17 15 U.S. Census Bureau, Civilian Population—Employment Status by Sex, Race, and Ethnicity: 1970-2009, The 2012 Statistical Abstract, available at http://www.census.gov/compendia/statab/2012/tables/12s0588.pdf (last accessed Oct. 31, 2014); Bureau of Labor Statistics, U.S. Department of Labor Statistics, Data Retrieval: Labor Force Statistics (Current Population Survey, Household Data, Table A-1, Employment status of the civilian population by sex and age, available at http://www.bls.gov/webapps/legacy/cpsatab1.htm (last accessed Oct. 3, 2014). 16 Bureau of Labor Statistics, U.S. Department of Labor, TED: The Economics Daily, Labor force participation rates among mothers,, available at http://www.bls.gov/opub/ted/2010/ted_20100507_data.htm (last accessed Oct. 3, 2014) [hereinafter Labor Force Participation: Mothers—2010]; Press Release, Bureau of Labor Statistics, U.S. Department of Labor, Employment Characteristics of Families—2013 (April 25, 2014), available at http://www.bls.gov/news.release/famee.nr0.htm (last accessed Nov. 5, 2014) [hereinafter Employment Characteristics of Families—2013]. 17 Employment Characteristics of Families—2013, supra note 16. Since 1970, there have also been extensive changes in the law regarding sex-based employment discrimination and in contractors' policies and practices governing workers. For example: • Title VII, which generally governs the law of sex-based employment discrimination, has been significantly amended four times: Once in 1972, by the Equal Employment Opportunity Act; 18 once in 1978, by the Pregnancy Discrimination Act (“PDA”); 19 once in 1991, by the Civil Rights Act; 20 and finally in 2009, by the Lilly Ledbetter Act. 21 18 Equal Employment Opportunity Act of 1972, Public Law 92-261, 86 Stat. 103 (1972). 19 Amendment to Title VII of the Civil Rights Act of 1964 to Prohibit Sex Discrimination on the Basis of Pregnancy, Public Law 95-555, 995, 92 Stat. 2076 (1978). 20 Civil Rights Act of 1991, Public Law 102-166, 1745, 105 Stat. 1071 (1991). 21 Lilly Ledbetter Fair Pay Act of 2009, Public Law 111-2, 123 Stat. 5 (2009). • State “protective laws” that had explicitly barred women from certain occupations or otherwise restricted their employment conditions on the basis of sex have been repealed or are unenforceable. 22 22 See, e.g., Conn. Gen. Stat. § 31-18 ( repealed 1973) (prohibition of employment of women for more than nine hours a day in specified establishments); Mass. Gen. Laws ch. 345 (1911) ( repealed 1974) (outright prohibition of employment of women before and after childbirth); Ohio Rev. Code Ann. § 4107.43 ( repealed 1982) (prohibition of employment of women in specific occupations that require the routine lifting of more than 25 pounds); see also Nashville Gas Co. v. Satty, 434 U.S. 136, 142 (1977) (invalidating public employer requirement that pregnant employees take a leave of absence during which they did not receive sick pay and lost job seniority); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) (striking rules requiring leave from after the fifth month of pregnancy until three months after birth); Somers v. Aldine Indep. Sch. Dist., 464 F. Supp. 900 (S.D. Tex. 1979) (finding sex discrimination where school district terminated teacher for not complying with requirement that pregnant women take an unpaid leave of absence in their third month or be terminated). • In 1993, the Family and Medical Leave Act (“FMLA”) 23 was enacted, requiring employers of 50 or more employees to provide a minimum of 12 weeks of annual, unpaid, job-guaranteed leave to both male and female employees to recover from their own serious health conditions (including pregnancy, childbirth, or related medical conditions), to care for a newborn or newly adopted or foster child, or to care for a child, spouse, or parent with a serious health condition. 23 29 U.S.C. 2601 et seq. • In 1970 it was not uncommon for employers to require female employees to retire at earlier ages than their male counterparts. However, the Age Discrimination in Employment Act was amended in 1986 to abolish mandatory retirement for all employees with a few exceptions. 24 24 29 U.S.C. 621-634. Moreover, since 1970 the Supreme Court has determined that numerous practices which were not then widely recognized as discriminatory constitute unlawful sex discrimination under title VII. See e.g., City of Los Angeles v. Manhart, 435 U.S. 702 (1978) (requiring equal retirement benefits for women and men, despite statistical differences in longevity); County of Washington v. Gunther, 452 U.S. 161 (1981) (holding that compensation discrimination is not limited to unequal pay for equal work within the meaning of the Equal Pay Act); Newport News Shipping & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (holding that employer discriminated on the basis of sex by excluding pregnancy-related hospitalization coverage for the spouses of male employees while providing complete hospitalization coverage for the spouses of female employees); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (recognizing cause of action for sexually hostile work environment); California Federal S. & L. Assn. v. Guerra, 479 U.S. 272 (1987) (upholding California law requiring up to four months leave and reinstatement to pregnant employees and finding law not inconsistent with title VII); Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (finding sex discrimination on basis of sex stereotyping); Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (recognizing cause of action for “same sex” harassment); Int'l Union, United Auto., Aerospace and Agr. Implement. Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187 (1991) (holding that possible reproductive health hazards to women of childbearing age did not justify sex-based exclusions from certain jobs); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (holding employers vicariously liable under title VII for the harassing activity of supervisors who create hostile working conditions for those over whom they have authority); and Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006) (clarifying broad scope of prohibition of retaliation for filing of charge of sex discrimination). In response to these legal and economic changes, employment policies and practices have also changed. Contractors rarely adopt or implement explicit rules that prohibit hiring of women for certain jobs; and jobs are no longer advertised in sex-segregated newspaper columns. Women have made major inroads into professions and occupations traditionally dominated by men. For example, women's representation among doctors tripled, from nearly 12 percent in 1980 25 to 36 percent in 2013. 26 Executive suites are no longer predominantly segregated by sex, with the executive positions all being occupied by men and women functioning as secretaries. Indeed, in many companies, it is hardly surprising for women to be in positions of considerable power and status. Moreover, the female-to-male earnings ratio for women and men working full-time, year-round in all occupations increased from 59 percent in 1970 to 78 percent in 2013. 27 25 American Medical Association, Women in Medicine: An AMA Timeline 4, available at https://download.ama-assn.org/resources/doc/wps/x-pub/wimtimeline.pdf (last accessed May 13, 2014). 26 Bureau of Labor Statistics, U.S. Department of Labor, Labor Force Statistics from the Current Population Survey, Table 11, Employed persons by detailed occupation, sex, race, and Hispanic or Latino ethnicity, Household Data Annual Averages, available at http://www.bls.gov/cps/cpsaat11.htm (last accessed June 5, 2014) [hereinafter BLS Labor Force Statistics 2013]. 27 U.S. Census Bureau, Income and Poverty in the United States: 2013, Current Population Reports 10 (2014), Table A-4, Number and real median earnings of total workers and full-time, year-round workers by sex and female-to-male earnings ratio: 1960-2013, available at http://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf (last accessed Nov. 2, 2014). In addition, employer-provided insurance policies that explicitly provide lower-value or otherwise less comprehensive hospitalization or disability benefits for childbirth than for other medical conditions are unlawful for employers of 15 or more employees. 28 Generous leave and other family-friendly policies are increasingly common. As early as 2000, even employers that were not covered by the FMLA routinely extended leave to their employees for FMLA-covered reasons: Two-thirds of such employers provided leave for an employee's own serious health condition and for pregnancy-related disabilities, and half extended leave to care for a newborn child. 29 Eleven percent of employees have access to paid family leave, and most employees receive some pay during family and medical leave due to paid vacation, sick, or personal leave or temporary disability insurance. 30 28 These practices, common before the PDA, were prohibited when that law became effective as to fringe benefits in 1979. As the EEOC explained in guidance on the PDA issued in 1979— A woman unable to work for pregnancy-related reasons is entitled to disability benefits or sick leave on the same basis as employees unable to work for other medical reasons. Also, any health insurance provided must cover expenses for pregnancy-related conditions on the same basis as expenses for other medical conditions. Appendix to Part 1604 —Questions and Answers on the Pregnancy Discrimination Act, 44 FR 23805 (Apr. 20, 1979), 29 CFR part 1604. EEOC's recently issued guidance echoes this earlier interpretation and discusses recent developments on benefits issues affecting PDA compliance. U.S. Equal Opportunity Commission, Enforcement Guidance: Pregnancy Discrimination and Related Issues I.C.2-4 (July 14, 2014), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last accessed Oct. 3, 2014). OFCCP welcomes comments on the extent to which contractor-provided health insurance plans comply with the PDA. 29 U.S. Department of Labor, Wage and Hour Division, The 2000 Survey Report ch. 5, Table 5-1. Family and Medical Leave Policies by FMLA Coverage Status, 2000 Survey Report available at http://www.dol.gov/whd/fmla/chapter5.htm#5.1.1 (last accessed May 13, 2014). 30 Robert Van Giezen, Paid Leave in Private Industry over the Past 20 Years, Bureau of Labor Statistics, U.S. Department of Labor, Beyond the Numbers: Pay & Benefits Aug. 2013, available at http://www.bls.gov/opub/btn/volume-2/paid-leave-in-private-industry-over-the-past-20-years.htm (last accessed Oct. 3, 2014). In addition, most employees taking family or medical leave had some access to paid leave: “48% report[ed] receiving full pay and another 17% receive[d] partial pay, usually but not exclusively through regular paid vacation leave, sick leave, or other `paid time off' hours.” Jacob Klerman, Kelly Daley, & Alyssa Pozniak, Family and Medical Leave in 2012: Executive Summary ii, http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Executive-Summary.pdf (last accessed Oct. 3, 2014). While these changes in policies and practices show a measure of progress, there is no doubt that sex discrimination remains a significant and pervasive problem. Indeed, the percentage of total annual EEOC charges that allege sex discrimination has remained nearly constant at around 30 percent since at least 1997. 31 31 This rate has varied from a low of 28.5 percent in FY 2011 to a high of 31.5 percent in FY 2000. U.S. Equal Employment Opportunity Commission, Enforcement and Litigation Statistics, Charge Statistics: FY 1997 Through FY 2013, available at http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last accessed Nov. 2, 2014). In FY 2013, the EEOC received 27,687 charges alleging sex discrimination. Additionally, occupational sex segregation remains widespread: In 2012, nontraditional occupations for women employed only six percent of all women, but 44 percent of all men. The same imbalance holds for occupations that are nontraditional for men; these employ only 5 percent of men, but 40 percent of women. Gender segregation is also substantial in terms of the broad sectors where men and women work: Three in four workers in education and health services are women, nine in ten workers in the construction industry and seven in ten workers in manufacturing are men. 32 32 Ariane Hegewisch & Heidi Hartmann, Institute for Women's Policy Research, Occupational Segregation and the Gender Wage Gap: A Job Half Done (2014), available at http://www.iwpr.org/publications/pubs/occupational-segregation-and-the-gender-wage-gap-a-job-half-done (last accessed Oct. 3, 2014) (citations omitted); see also Ariane Hegewisch et al., The Gender Wage Gap by Occupation, Fact Sheet #C350a, The Institute for Women's Policy Research, available at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-2/at_download/file/ (last accessed Oct. 3, 2014) [hereinafter IWPR Wage Gap By Occupation]. Likewise, women continue to be underrepresented in higher level or more senior jobs within occupations. For example, in 2013, women were represented in only 38 percent of all manager positions. 33 Women also accounted for only 27 percent of chief executive officer positions. 34 33 BLS Labor Force Statistics 2013, supra note 26. 34 Id. As mentioned above, in 2013, women working full time earned 78 cents on the dollar compared with men, measured on the basis of median annual earnings. 35 While this represents real progress, and discrimination may not be the cause of the entire gap, more than fifty years after passage of the Equal Pay Act, the size of the gap is still unacceptable. At the current rate of progress, researchers estimate it will take until 2057 to close the gender pay gap. 36 35 U.S. Census Bureau, Income and Poverty in the United States: 2013, Current Population Reports 10 (2014), available at http://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf (last accessed Nov. 2, 2014). 36 Institute for Women's Policy Research, At Current Pace of Progress, Wage Gap for Women Expected to Close in 2057 (April 2013), available at http://www.iwpr.org/publications/pubs/at-currentpace-of-progress-wage-gap-for-women-expected-toclose-in-2057. The wage gap is also greater for women of color and women with disabilities. When measured by median full-time weekly earnings, in 2013 African-American women made approximately 69 cents and Latinas made approximately 61 cents for every dollar earned by a non-Hispanic, white man. 37 In 2013, median annual earnings for women with disabilities were only 47 percent of median annual earnings for men without disabilities. 38 Moreover, it appears that the narrowing of the pay gap has slowed since the 1990's. 39 37 Bureau of Labor Statistics, U.S. Department of Labor, Household Data, Annual Averages, Table 37. “Median Weekly Earnings of Full-Time Wage and Salary Workers By Selected Characteristics” available at http://www.bls.gov/cps/cpsaat37.pdf (last accessed Oct. 6, 2014). 38 Calculation from U.S. Census Bureau, American Fact Finder, “Median earnings in the past 12 months (in 2013 inflation-adjusted dollars) by disability status by sex for the civilian noninstitutionalized population 16 years and over with earnings,” available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_B18140&prodType=table (last accessed Nov. 6, 2014). 39 From 1980 to 1989, the percentage of women's earnings relative to men's increased from 60.2% to 66.0%; from 1990 to 1999, the percentage increased from 71.6% to just 72.2%. U.S. Census Bureau, Historical Income Tables: People, Table P-40: Women's Earnings as a Percentage of Men's Earnings by Race and Hispanic Origin, available at https://www.census.gov/hhes/www/income/data/historical/people/ (last accessed Nov. 2, 2014). See also Youngjoo Cha & Kim A Weeden, Overwork and the Slow Convergence in the Gender Gap in Wages, Am. Soc. Rev. 1-28 (2014), available at http://www.asanet.org/journals/ASR/ChaWeedenJune14ASR.pdf (last accessed Nov. 2, 2014); Francine D. Blau & Lawrence M. Kahn, The U.S. Gender Pay Gap in the 1990s: Slowing Convergence, 60 Indus. & Lab. Rel. Rev. 45 (2006) [hereinafter Slowing Convergence]. These disparities can be explained to some extent by differences in experience, occupation, and industry. 40 However, decades of research show these wage gaps remain even after accounting for factors like the type of work people do and qualifications such as education and experience. 41 Moreover, while some women may work fewer hours or take time out of the workforce because of family responsibilities, there is research suggesting that discrimination and not just choices can lead to women with children earning less; 42 to the extent that the potential explanations such as type of job or amount of continuous labor market experience are also influenced by discrimination, the “unexplained” difference may understate the true effect of sex discrimination. 43 40 Equal Pay for Equal Work? New Evidence on the Persistence of the Gender Pay Gap: Hearing Before United States Joint Economic Comm., Majority Staff of the Joint Econ. Comm., 111th Cong., Invest in Women, Invest in America: A Comprehensive Review of Women in the U.S. Economy 80 (Comm. Print 2010), 80, available at http://jec.senate.gov/public/?a=Files.Serve&File_id=9118a9ef-0771-4777-9c1f-8232fe70a45c (last accessed Oct. 3, 2014) (statement of Randy Albelda, Professor of Economics and Senior Research Associate, University of Massachusetts-Boston Center for Social Policy). 41 A March 2011 White House report entitled Women in America: Indicators of Social and Economic Well-Being, found that while earnings for women and men typically increase with higher levels of education, male-female pay gap persists at all levels of education for full-time workers (35 or more hours per week), according to 2009 BLS wage data. Potentially nondiscriminatory factors can explain some of the gender wage differences. See, e.g., June Elliot O'Neill, The Gender Gap in Wages, Circa 2000, Am. Econ. Rev. (May 2003). Even so, after controlling for differences in skills and job characteristics, women still earn less than men. Explaining Trends in the Gender Wage Gap, A Report by the Council of Economic Advisers (June 1998). Ultimately, the research literature still finds an unexplained gap exists even after accounting for potential explanations, and finds that the narrowing of the pay gap for women has slowed since the 1980s. Joyce P. Jacobsen, The Economics of Gender 44 (2007); Slowing Convergence, supra note 39. 42 Shelley J. Correll, Stephen Benard, & In Paik, “Getting a Job: Is There a Motherhood Penalty?” 112 American Journal of Sociology 1297 (2007). 43 Strengthening the Middle Class: Ensuring Equal Pay for Women: Hearing Before H. Comm. on Educ. and Labor, 110th Cong. (2007), available at http://www.cepr.net/index.php/strengthening-the-middle-class-ensuring-equal-pay-for-women-testimony/ (last accessed Oct. 3, 2014) (statement of Heather Boushey, Senior Economist, Center for Economic and Policy Research). Male-dominated occupations generally pay more than female-dominated occupations at similar skill levels. But even within the same occupation, women earn less than men on average. For example, in 2012, full-time women auditors' and accountants' earnings were less than 74 percent of the earnings of their male counterparts. 44 Retail salespersons faced the largest wage gap, among whom women made only 64 percent of what men made. 45 Likewise, in the medical profession, women earn less than their male counterparts. On average, male physicians earn 13 percent more than female physicians at the outset of their careers and as much as 28 percent more eight years later. 46 This gap could not be explained by practice type, work hours, or other characteristics of employees' work situations. 47 44 IWPR Wage Gap by Occupation, supra note 32. 45 Id. 46 Constanca Esteves-Sorenson & Jason Snyder, The Gender Earnings Gap for Physicians and its Increase Over Time 1 (2011), available at http://faculty.som.yale.edu/ConstancaEstevesSorenson/documents/Physician_000.pdf (last accessed October 3, 2014). 47 Id. A 2008 study on physicians leaving residency programs in New York State also found a $16,819 pay gap between male and female physicians. Anthony T. LoSasso, Michael R. Richards, Chiu-Fang Chou & Susan E. Gerber, The $16,819 Pay Gap For Newly Trained Physicians: The Unexplained Trend Of Men Earning More Than Women, 30 Health Affairs 193 (2011), available at http://content.healthaffairs.org/content/30/2/193.full.pdf+html (last accessed May 13, 2014). Despite enactment of the PDA, women continue to report that they have experienced discrimination on account of pregnancy. Between FY 1997 and FY 2011, the number of charges of pregnancy discrimination filed with the EEOC and state and local agencies was significant, ranging from a low of 3,977 in 1997 to a high of 6,285 in 2008. 48 A 2011 review of reported “family responsibility discrimination” cases (brought by men as well as women) found that low-income workers face “extreme hostility to pregnancy.” 49 48 U.S. Equal Employment Opportunity Commission, Pregnancy Discrimination Charges, EEOC & FEPAs Combined: FY 1997-FY 2011, available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm (last accessed Nov. 2, 2014); U.S Equal Employment Opportunity Commission, Charge Statistics: FY 1997 Through FY 2013, available at http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last accessed Nov. 2, 2014) (hereinafter “EEOC Charge Statistics: FY 1997-2013”). FY 2011 is the last year for which comparable data are available. For FY 2012 and FY 2013, four percent of the charges filed with the EEOC alleged pregnancy discrimination. OFCCP calculations made from data from U.S Equal Employment Opportunity Commission, Pregnancy Discrimination Charges, FY 2010-FY 2013, available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy_new.cfm (last accessed Nov. 2, 2014) and EEOC Charge Statistics: FY 1997-2013 . 49 Stephanie Bornstein, Center for WorkLife Law, UC Hastings College of the Law, Poor, Pregnant and Fired: Caregiver Discrimination Against Low-Wage Workers 2 (2011), available at http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf (last accessed Oct. 3, 2014). In addition, some pregnant workers face a serious and unmet need for workplace accommodations, which are vital to their uninterrupted, seamless, and continued employment and, ultimately, to their health and that of their children. OFCCP is aware of a number of situations in which women have been denied accommodations with deleterious health consequences. For example: In one instance, a pregnant cashier in New York who was not allowed to drink water during her shift, in contravention of her doctor's recommendation to stay well-hydrated, was rushed to the emergency room after collapsing at work. As the emergency room doctor who treated her explained, because “pregnant women are already at increased risk of fainting (due to high progesterone levels causing blood vessel dilation), dehydration puts them at even further risk of collapse and injury from falling.” Another pregnant worker was prohibited from carrying a water bottle while stocking grocery shelves despite her doctor's instructions that she drink water throughout the day to prevent dehydration. She experienced preterm contractions, requiring multiple hospital visits and hydration with IV fluids. . . . [Another] woman, a pregnant retail worker in the Midwest who had developed a painful urinary tract infection, supplied a letter from her doctor to her employer explaining that she needed a short bathroom break more frequently than the store's standard policy. The store refused. She later suffered another urinary tract infection that required her to miss multiple days of work and receive medical treatment. 50 50 Brief of Health Care Providers, the National Partnership for Women & Families, and Other Organizations Concerned with Maternal and Infant Health as Amici Curiae in Support of Petitioner in Young v. United Parcel Service, supra , available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/12-1226_pet_amcu_hcp-etal.authcheckdam.pdf, at 9-10, 11 [citations omitted]. See also Wiseman v. Wal-Mart Stores, Inc., No. 08-1244-EFM, 2009 WL 1617669 (D. Kan. June 9, 2009) (pregnant retail employee with recurring urinary and bladder infections caused by dehydration alleged she was denied permission to carry a water bottle despite doctor's note), available at http://www.gpo.gov/fdsys/pkg/USCOURTS-ksd-6_08-cv-01244/pdf/USCOURTS-ksd-6_08-cv-01244-0.pdf. “Pregnant workers in physically demanding, inflexible, or hazardous jobs are particularly likely to need accommodations at some point during their pregnancies to continue working safely.” 51 Meanwhile, more women today continue to work throughout their pregnancies and therefore are more likely to need accommodations of some sort. Of women who had their first child between 1966 and 1970, 49 percent worked during pregnancy; of those, 39 percent worked into their last month. For the period from 2006 to 2008, the proportion working increased to 66 percent, and the proportion of those working into the last month increased to 82 percent. 52 51 National Women's Law Center & A Better Balance, It Shouldn't Be a Heavy Lift: Fair Treatment for Pregnant Workers 5 (2013), available at http://www.nwlc.org/sites/default/files/pdfs/pregnant_workers.pdf (last accessed Dec. 30, 2014) [hereinafter Heavy Lift]. 52 U.S. Census Bureau, Maternity Leave and Employment Patterns of First-Time Mothers: 1961-2008 4, 7 (2011), available at http://www.census.gov/prod/2011pubs/p70-128.pdf (last accessed Nov. 2, 2014) (tables 1 and 3). In some ways, the nature of sex discrimination has also changed since OFCCP promulgated the Sex Discrimination Guidelines. Explicit sex segregation, such as the facial “male only” hiring policies that part 60-20 specifically addresses, has been replaced in many workforces by less overt mechanisms that nevertheless present real equal opportunity barriers. One of the most significant barriers is the role of sex-based stereotyping. Decades of social science research have documented the extent to which sex-based stereotypes about the roles of women and men and their respective capabilities in the workplace can influence decisions about hiring, training, promotions, pay raises, and other conditions of employment. 53 As the Supreme Court recognized in 1989, an employer engages in sex discrimination if its female employees' chances of promotion depend on whether they fit their managers' preconceived notions of how women should dress and act. 54 Research clearly demonstrates that widely held social attitudes and biases can lead to discriminatory decisions, even where there is no formal sex-based (or race-based) policy or practice in place. 55 Sex-based stereotyping may have even more severe consequences for transgender, lesbian, gay, and bisexual applicants and employees, many of whom report that they have experienced discrimination in the workplace. 56 53 See, e.g., Susan Fiske et al., Controlling Other People: The Impact of Power on Stereotyping, 48 a.m. Psychol. 621 (1993); Marzarin Banaji, Implicit Social Cognition: Attitudes, Self-Esteem and Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle & Madeline Heilman, Formal and Informal Discrimination Against Women at Work in Managing Social and Ethical Issues in Organizations 23 (Stephen Gilliland, Dirk Douglas Steiner & Daniel Skarlicki eds., 2007); Susan Bruckmüller et al., Beyond the Glass Ceiling: The Glass Cliff and Its Lessons for Organizational Policy, 8 Soc. Issues & Pol. Rev. 202 (2014) (describing the role of sex-based stereotypes in the workplace). 54 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Men, too, can experience adverse effects from sex-based stereotyping. 55 See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, Racial Discrimination in the Labor Market: Theory and Empirics (NBER Working Paper No. 17450, 2010), available at http://128.197.153.21/jee/Lang_Lehmann_jel_disc.pdf (last accessed Oct. 3, 2014); Marianne Bertrand & Sendhil Mullainathan, Are Emily and Brendan More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, 94(4) American Econ. Rev. (2004); Ian Ayres & Peter Siegelman, Race and Gender Discrimination in Bargaining for a New Car, 85(3) Am. Econ. Rev. (1995); Marc Bendick, Charles Jackson & Victor Reinoso, Measuring Employment Discrimination Through Controlled Experiments, 23 Rev. of Black Pol. Econ. 25 (1994). 56 Injustice at Every Turn, supra note 13; Brad Sears & Christy Mallory, The Williams Institute, Documented Evidence of Employment Discrimination & Its Effects on LGBT People (2011), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdf (last accessed Nov. 5, 2014 ). Further discussion of discrimination on the basis of sexual orientation and gender identity can be found infra in the passages on § 60-20.2(a) and § 60-20.7. With the marked increase of women in the labor force, the changes in employment practices, and numerous key legal developments since 1970, the “special problems . . . [of] implementation” of the Executive Order's prohibition of sex discrimination referred to in current § 60-20.1 have changed significantly as well. As a result, many of the provisions in the Guidelines are outdated, inaccurate, or both. At the same time, there are important and current areas of law that the Guidelines fail to address at all. For example, while the existing regulations touch upon leave for childbearing, they are completely silent about refusals to hire pregnant women or women of childbearing age, restricted duty during pregnancy, health insurance or other benefits, and other applications of the law prohibiting pregnancy discrimination. Section-by-Section Analysis The NPRM recommends a quite different organization of the topics covered in current part 60-20. For example, discussion of the BFOQ defense is repeated in several different sections of the current guidelines; the proposal consolidates this discussion into one section covering BFOQs. In addition, the proposal does not address some topics that are addressed in current part 60-20 but are outdated; includes some topics that are covered by the current guidelines but in revised form to align them with current law; and adds some provisions not contained in the current guidelines to address contemporary problems with implementation. This Section-by-Section Analysis identifies and discusses all proposed changes in each section. OFCCP welcomes comments on each of the provisions discussed below. Title of the Regulations The current title of part 60-20 is “Sex Discrimination Guidelines.” OFCCP proposes to change this title to “Discrimination on the Basis of Sex,” to make clear that the provisions in part 60-20 are regulations implementing Executive Order 11246 with the full force and effect of law. Section 60-20.1 Purpose The NPRM proposes a few minor changes to this section. First, it deletes the words “Title and” from the heading of current § 60-20.1, because the proposed section does not set out a title. Second, it deletes the second sentence of current § 60-20.1, which explains the reason that this part was promulgated in 1970, because the reasons for amending this part are contained in the preamble of the NPRM. Finally, the proposal modifies the last sentence of current § 60-20.1, which notifies the public that part 60-20 is “to be read in connection with existing regulations, set forth in part 60-1 of this chapter.” For completeness and to prevent any confusion, this change clarifies that contractors are subject to all the relevant parts related to the implementation of Executive Order 11246, by listing them specifically. Therefore, the proposed rule states that part 60-20 is to be read in conjunction with parts 60-1, 60-2, 60-3, 60-4, and 60-30 of this title. Section 60-20.2 General Prohibitions OFCCP proposes removing current § 60-20.2 entitled “Recruitment and advertisement,” which addresses both the nondiscrimination requirements related to recruiting and advertising and the BFOQ defense. Unlawful practices related to recruitment and advertising contained in current § 60-20.2 are subsumed in a new subparagraph of this section. See proposed paragraph 60-20.2(b)(7). The BFOQ defense is now addressed in proposed § 60-20.3. In place of current § 60-20.2, OFCCP proposes a new section entitled “General prohibitions.” Paragraph (a) of this new section articulates the general prohibition against sex discrimination in employment. Paragraph (b) expressly prohibits disparate treatment discrimination; subparagraphs (b)(1) through (b)(10) apply the general prohibition of disparate treatment discrimination to specific practices. Paragraph (c) prohibits discrimination under disparate impact analysis. The general statement prohibiting sex discrimination in paragraph (a) clarifies that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination. This principle has been the law since Congress enacted the Pregnancy Discrimination Act amendments to title VII in 1978. This form of discrimination is also treated separately in proposed § 60-20.5. In addition, paragraph (a) clarifies that discrimination based on gender identity or transgender status is also a form of sex discrimination. See OFCCP Directive 2014-02, “Gender Identity and Sex Discrimination” (August 19, 2014). As Directive 2014-02 explains, “Under current Title VII case law principles, discrimination based on gender identity or transgender status . . . is discrimination based on sex.” The Directive relied on the EEOC's decision in Macy v. Holder, 2012 WL 1435995 (EEOC April 20, 2012), in which the EEOC commissioners unanimously concluded that discrimination because a person is transgender is sex discrimination in violation of title VII, by definition, because the discriminatory act is “related to the sex of the victim.” 57 The EEOC cited both the text of title VII and the reasoning in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), for its conclusion. 58 See also Memorandum from Attorney General Eric Holder to United States Attorneys and Heads of Department Components (Dec. 15, 2014) (citing EEOC's decision in Macy v. Holder as support for DOJ's positon that “[t]he most straightforward reading of Title VII is that discrimination `because of . . . sex' includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex”). Note that discrimination on the basis of gender identity or transgender status can arise regardless of whether a transgender individual has undergone, is undergoing, or plans 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. 57 Macy at *7. Macy also held that discrimination on the basis of transgender status could be unlawful under title VII as sex stereotyping. That form of sex stereotyping is separately addressed in proposed § 20.7. 58 Consistent with Macy, this NPRM defines discrimination on the basis of gender identity as a form of sex discrimination. Gender identity is also a stand-alone protected category (along with sexual orientation) under Executive Order 13672. Executive Order 13672 amends Executive Order 11246 to add sexual orientation and gender identity as protected bases, and applies to contracts entered into or modified on or after April 8, 2015, the effective date of the implementing regulations promulgated thereunder. Many of the examples included in this proposed section are presently listed in § 60-20.3, “Job policies and practices,” of the current part 60-20. For instance, proposed paragraph 60-20.2(b)(1) identifies making a distinction between married and unmarried persons that is not applied equally to both sexes as an example of a sex-based discriminatory practice, and proposed paragraph 60-20.2(b)(2) provides that denying women with children an employment opportunity that is available to men with children is an unlawful sex-based discriminatory practice. These proposed provisions can be found in current paragraph 60-20.3(d). Other examples of practices listed in this proposed rule that, absent a BFOQ, would constitute sex-based discriminatory treatment include: Treating unmarried female parents differently than unmarried male parents (proposed paragraph 60-20.2(b)(3)); imposing differences in retirement age or other terms, conditions, or privileges of retirement based on sex (proposed paragraph 60-20.2(b)(4)); restricting job classifications on the basis of sex (proposed paragraph 60-20.2(b)(5)); maintaining seniority lines and lists based on sex (proposed paragraph 60-20.2(b)(6)); recruiting or advertising for members of one sex for a certain job, including through use of gender-specific terms for jobs (proposed paragraph 60-20.2(b)(7)); and distinguishing on the basis of sex in apprenticeship or other formal or informal training programs; in other opportunities such as networking, mentoring, sponsorship, individual development plans, rotational assignments, and succession planning programs; and in performance appraisals that may provide the basis of subsequent opportunities (proposed paragraph 60-20.2(b)(8)). Specific enumeration of these types of programs ensures that the forms of career development and advancement opportunities that contractors currently use are included. Proposed paragraph 60-20.2(b)(9) states that making any facilities or employment-related activities available only to members of one sex is an example of an unlawful sex-based discriminatory practice, with the condition that if a contractor provides restrooms or changing facilities, the contractor must provide separate or single-user restrooms or changing facilities to assure privacy between the sexes. 59 59 This provision aligns with an existing affirmative action requirement applicable to Federal and federally-assisted construction contractors at 41 CFR 60-4.3(a) 7n (“Ensure that all facilities and company activities are nonsegregated except that separate or single-user toilet and necessary changing facilities shall be provided to assure privacy between the sexes.”). This proposed paragraph replaces current § 60-20.3(e), which requires contractors to provide “appropriate physical facilities” to both men and women “unless the employer is able to show that the construction of the facilities would be unreasonable for such reasons as excessive expense or lack of space.” Under existing law, unreasonable cost is not acceptable as a defense to sex discrimination in employment. 60 Moreover, current § 60-20.3(e) is inconsistent with other OFCCP regulations, which require contractors to provide separate or single-user restrooms and changing facilities to assure privacy between the sexes without exception for cost or lack of space. See 41 CFR 60-1.8 (supply and service contractors); 41 CFR 60-4.3(a) 7n (construction contractors). 61 60 See Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 210-11 (1991), in which the plaintiff challenged defendant's policy prohibiting women of childbearing age from working in jobs involving exposure to lead because of potential health dangers to fetuses that they may be carrying. The Supreme Court held that the cost of eliminating the health dangers cannot be a BFOQ that justifies the exclusion of women workers. 61 In addition, OSHA regulations require employers to provide employees with toilets, except for “mobile crews, which must have] “transportation readily available to nearby toilet facilities.” 29 CFR 1926.51(c) (OSHA construction sanitation standard); OSHA Standard Interpretation regarding 29 CFR 1926.51(c) (June 7, 2002), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24369 (interpreting the provision pertaining to mobile crews as requiring prompt access to toilets that are less than 10 minutes away and recognizing that women may need bathroom facilities more often than men). Proposed paragraph 60-20.2(b)(10) describes another example of sex-based discriminatory practices: Denying transgender employees access to the bathrooms used by the gender with which they identify. Proposed paragraph 60-20.2(b)(11) addresses discrimination against transgender individuals who have undergone, are undergoing, or plan 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. Disparate treatment for this reason has been classified as both discrimination on the basis of sex-based stereotypes and as discrimination on the basis of sex. Schroer v. Billington, supra, at 304-08 (D.D.C. 2008) (concluding that an employer's decision to withdraw a job offer from a transgender applicant constituted both sex-stereotyping discrimination and sex discrimination in violation of title VII). The EEOC has recognized this principle as well. Macy v. Holder, supra. Finally, proposed paragraph 60-20.2(c) provides that employment policies or practices that state a claim of disparate impact discrimination violate Executive Order 11246 and the regulations at 41 CFR part 60-20. Proposed paragraph 60-20.2(c) identifies several examples of employment practices that may have an adverse impact on women. Traditionally, disparate impact claims have involved selection criteria that are not necessary to the performance of the job, but which instead reflect stereotypical notions about the skills required for the position in question. See, e.g., Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979) (striking down height requirements by the Los Angeles police department because they were not job related and had a disparate impact on women, who in general are shorter than men); EEOC v. Dial Corp., 469 F.3d 735 (8th Cir. 2006) (striking down a strength test used in a sausage factory because the test was more physically demanding than the job in question and had a significant disparate impact on women). This sex discrimination analysis may also apply to policies or practices that are unrelated to selection procedures. For instance, an employer policy requiring crane operators to urinate off the back of the crane instead of using a restroom was held to be a neutral employment policy that was not justified by business necessity and that produced an adverse effect on women, who, the court found, have “obvious anatomical and biological differences” that require the use of bathrooms. Johnson v. AK Steel Corp., 2008 WL 2184230, *8 (S.D. Oh. May 23, 2008). Section 60-20.3 Sex as a Bona Fide Occupational Qualification OFCCP proposes removing current § 60-20.3 entitled “Job policies and practices,” which addresses a variety of topics, including a contractor's general obligations to ensure equal opportunity in employment on the basis of sex (paragraphs 60-20.3(a), 60-20.3(b), and 60-20.3(c)); provides examples of discriminatory treatment (paragraph 60-20.3(d)); and sets forth contractor obligations with respect to the provision of physical facilities, including bathrooms (paragraph 60-20.3(e)), the impact of state protective laws (paragraph 60-20.3(f)), leave for childbearing (paragraph 60-20.3(g)), and specification of retirement age (paragraph 60-20.3(h)). Current paragraph 60-20.3(i) clarifies that differences in capabilities for job assignments among individuals may be recognized by the employer in making specific assignments. As explained earlier in the preamble, OFCCP proposes moving the general obligation to ensure equal employment opportunity and the examples of discriminatory treatment to proposed § 60-20.2. To improve coherence and clarity, OFCCP proposes to move (and revise in some instances) the remaining obligations set forth in paragraphs (e) through (i) to their own separate sections or to incorporate them as illustrations of discriminatory treatment in proposed § 60-20.2. Specifically, current paragraph 60-20.3(e) regarding provision of physical facilities is now addressed in proposed § 60-20.2. See the discussion earlier in this preamble for information regarding this proposed provision. Current paragraph 60-20.3(f), which addressed state protective laws, has been removed entirely because it is unnecessary and anachronistic. While in 1970 there may have been some legal question whether state protective laws provided a defense to discriminatory employment policies, in 2014 it is beyond dispute that they do not. See Int'l Union, United Auto., Aerospace and Agr. Implement. Workers of Am. v. Johnson Controls, Inc., supra (holding that possible reproductive health hazards to women of childbearing age did not justify sex-based exclusions from certain jobs). Proposed paragraph 60-20.2(b)(5), prohibiting sex-based job classifications, clearly states the underlying principle that no job, absent a job-specific BFOQ, is the separate domain of any sex. OFCCP invites comment from stakeholders as to the current scope of state protective laws, whether those that exist are enforced, and what practical effect, if any, they have on contractors. Current paragraph 60-20.3(g) regarding leave for childbearing is now addressed in its own section: discrimination on the basis of pregnancy, childbirth, or related medical conditions. See the discussion of proposed § 60-20.5 later in this preamble. Current paragraph 60-20.3(h) prohibits differential treatment between men and women with regard to retirement age. It is restated and broadened, prohibiting the imposition not only of sex-based differences in retirement age but also in “other terms, conditions, or privileges of retirement,” in proposed paragraph 60-20.2(b)(4). OFCCP invites comments on whether such differential treatment continues today. Current paragraph 60-20.3(i) states, in its first sentence, that the Sex Discrimination Guidelines allow contractors to recognize differences in capabilities for job assignments in making specific assignments. The second sentence reiterates that the purpose of the guidelines “is to insure that such distinctions are not based upon sex.” This paragraph is omitted from the proposal because it is unnecessary and because its second sentence is repetitive of proposed § 60-20.1. Implicit in the provisions prohibiting discrimination on the basis of sex is the principle that distinctions for other reasons, such as differences in capabilities, are not prohibited. 62 Making distinctions among employees based on their relevant job skills, for example, does not constitute unlawful discrimination. 62 Of course, discrimination based on other reasons that are independently prohibited by law—such as race, religion, color, national origin, disability, sexual orientation, gender identity, and protected veteran status—is prohibited. Proposed § 60-20.3 entitled “Sex as a bona fide occupational qualification” is new and consolidates in one provision the current references to the BFOQ defense available to employers in paragraphs 60-20.3(b) and 60-20.3(f)(2), and adopts the BFOQ language set forth in title VII, 42 U.S.C. 2000e-2(e). OFCCP expects that this proposed reorganization will make the regulations more user-friendly and will help facilitate a better understanding of the Executive Order requirements with respect to sex discrimination. Section 60-20.4 Discriminatory compensation Current § 60-20.4 relating to seniority systems would be removed because its subject matter—the interaction of seniority systems and sex discrimination—is addressed in proposed § 60-20.2 at paragraph (b)(6). Proposed § 60-20.4 would replace the current requirements related to discriminatory wages in current § 60-20.5. In general, the existing text focuses on particular kinds of jobs and fact patterns that may have posed significant limitations on equal opportunity in compensation at the time the Guidelines were adopted. However, the continued increase of women into the workforce, their robust participation in a wide variety of occupations and positions, ranging from entry-level to senior management, and the significant representation of women in both the hourly and salaried workforce require a more comprehensive statement addressing sex discrimination in wages and other terms of compensation. For example, paragraph (a) of current § 60-20.5 provides only a cursory description of sex discrimination in wages and other forms of compensation and fails to give useful guidance to contractors in evaluating their compensation programs for potential sex discrimination. The one clarifying example provided in the Note in current § 60-20.5(a) tracks the Equal Pay Act rather than title VII. OFCCP enforces the Executive Order's nondiscrimination provisions, including the ban on compensation discrimination, consistent with title VII. Courts have concluded that title VII uses a broader and more flexible approach to comparing jobs and defining similarly situated workers than the Equal Pay Act, see, e.g., Cnty. of Washington v. Gunther, 452 U.S. 161 (1981); Miranda v. B & B Cash Grocery, 975 F.2d 1518 (11th Cir. 1992). For that reason, the Note has the potential to create unnecessary confusion, and the proposed rule omits it entirely. Similarly, current paragraph (b) appears to contemplate only workplaces that are completely or explicitly segregated by gender. However, title VII also bars other, more subtle forms of discriminatory compensation that can result from de facto job segregation or classification on the basis of sex. For example, a retail chain might disproportionately steer women into lower paying cashier jobs—even though the women are qualified and available for higher paying positions—based on the outdated, stereotypical notion that men, and not women, are the primary wage earners. These forms of discriminatory compensation remain a potential concern that should be, and are, addressed by the proposed regulation. Current paragraph (c) has been superseded by the transfer of Equal Pay Act jurisdiction to the EEOC and is therefore removed. The proposed new text in § 60-20.4 provides a clearer general statement of the contractor's obligation to provide equal opportunity with respect to wages and other forms of compensation. The Executive Order and the implementing regulations specifically require contractors to ensure pay equity. Thus, Federal contractors have affirmative duties to maintain data, conduct internal reviews, and monitor pay practices for potential discrimination, as well as comply with the Executive Order's ban on discrimination in the payment of wages, salaries, and other forms of compensation. 63 The section generally restates the agency's case-specific approach to evaluating contractor pay systems and practices for sex discrimination, where the agency tailors the investigative and analytic methods to the facts of the case. 64 This may include conducting multiple regression analyses and applying other formal statistical tests as well as using comparative and circumstantial evidence. As this approach is grounded in well-established principles of title VII law, 65 it also would apply when evaluating contractor pay systems and practices for discrimination based on other protected categories. 63 Section 202 of Executive Order 11246, as amended; 41 CFR 60-1.12; 60-1.4; 60-2.17(b)-(d). 64 OFCCP's case-by-case investigation procedures implement the title VII principles applicable to enforcing discrimination in any employment practice under Executive Order 11246. The agency provides this very general description of its approach for purposes of clarification and consistency with its other statements of policy in this area. 65 Interpreting Nondiscrimination Requirements of Executive Order 11246 with Respect to Systemic Compensation Discrimination and Voluntary Guidelines for Self-Evaluation of Compensation Practices for Compliance with Nondiscrimination Requirements of Executive Order 11246 with Respect to Systemic Compensation Discrimination: Notice of Final Rescission, 78 FR 13508, Feb. 28, 2013 (hereinafter Notice of Rescission). Furthermore, OFCCP does not require anecdotal evidence to support a pay violation. Identifying individuals harmed by pay discrimination is particularly difficult. 66 Many workers do not know that they are underpaid. 67 If OFCCP finds evidence of pay discrimination by Federal contractors through its review of data, the agency should not permit that discrimination to continue simply because the contractor had successfully hidden it from its employees. Federal contractors have special obligations to avoid discrimination, monitor their pay practices and submit to reviews to make certain they are in compliance, regardless of whether any individual applicant or employee actually has knowledge of discrimination. 66 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 645 (2007) (Ginsburg, J., dissenting). 67 On April 8, 2014, President Obama issued Executive Order 13655, which provides that a Federal contractor may not discharge or otherwise discriminate against any employee or applicant because such person has inquired about, discussed, or disclosed the compensation of the person or another employee or applicant. OFCCP published an NPRM on Sept. 17, 2014 to implement this executive order. 79 FR 55712. The comment period closed on Dec. 16, 2014. Section 60-20.4 substitutes the general and more modern term “compensation” for the outdated term “wage schedules” and clarifies that both systemic and individual forms of such discrimination are barred by the Executive Order. Proposed amendments to Section 60-1.3 to implement Executive Order 13655 would define compensation as follows: Compensation means any payments made to, or on behalf of, an employee or offered to an applicant as remuneration for employment, including but not limited to salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and contributions to retirement. That same definition would apply to any assessment of compensation discrimination under EO 11246, including when evaluating sex discrimination in compensation under this section. To provide more guidance to contractors about the kinds of practices they should review and analyses they should undertake to assess their compliance, new paragraphs (a), (b), and (c) specify a variety of ways pay discrimination may occur. For example, proposed paragraph (a) states that contractors may not pay different compensation to similarly situated employees on the basis of sex. Proposed paragraph (b) prohibits contractors from, among other things, granting or denying training, work assignments, or other opportunities that may lead to advancement on the basis of sex, and proposed paragraph (c) states that contractors may not provide or deny earnings opportunities because of sex, for example by denying women equal opportunity to obtain regular and/or overtime hours, commissions, pay increases, incentive compensation, or any other additions to regular earnings. The revised text in proposed paragraph (a) also addresses the question of determining “similarly situated” employees for purposes of analyzing compensation differences. The determination of similarly situated employees is case specific. Relevant factors in determining similarity may include tasks performed, skills, effort, levels of responsibility, working conditions, job difficulty, minimum qualifications, and other objective factors. In some cases, employees are similarly situated where they are comparable on some of these factors, even if they are not similar in other factors. 68 For example, when evaluating a job assignment issue, workers are similarly situated when their qualifications are comparable, but they are assigned to jobs at different levels. 69 Employees are similarly situated when they are comparable on factors relevant to the compensation issues presented. Identification of similarly situated employees for purposes of an individual analysis or review of a single specific employment decision may be determined based on different criteria than when conducting a systemic discrimination analysis. In analyzing compensation, title VII permits comparing workers within the same or similar jobs or within specific units or locations, and also permits consideration of pay differences more broadly—for example, across jobs or locations or units—as long as the workers are comparable under the employer's wage or salary system. 70 68 In employment discrimination cases, courts generally consider whether the workers being compared are similar in aspects relevant to the case. See, e.g., McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001); Ercegovich v. Goodyear Tire and Rubber Co., 154 F.3d 344 (6th Cir. 1998); McNabola v. Chicago Transit Authority, 10 F.3d 501 (7th Cir. 1993). 69 See, e.g., Beckman v. CBS, 192 FRD. 608 (D. Minn. 2000); Stender v. Lucky Stores, 803 F.Supp. 259 (N.D. Cal. 1992); OFCCP v. St. Regis Corp. 78-OFC-1, ALJ's Recommended Decision (Dep't. of Labor Dec. 28, 1984). 70 Notice of Rescission, supra note 65, 78 FR at 13511-13513. New paragraph (d) prohibits contractors from implementing compensation practices, including performance review systems, that discriminate on the basis of sex under the disparate impact analysis of discrimination. 71 New paragraph (e) restates longstanding OFCCP principles regarding the circumstances under which pay discrimination is a continuing violation under the Executive Order. 71 Lewis v. City of Chicago, 560 U.S. 205, 212 (2010) (finding title VII places no limit on the types of employment practices that may be challenged under disparate impact analysis). Section 60-20.5 Discrimination on the Basis of Pregnancy, Childbirth, or Related Medical Conditions Current § 60-20.5 entitled “Discriminatory wages” has been revised and moved to § 60-20.4 as discussed earlier in the preamble. This proposed section is new; however, it incorporates certain obligations already set forth in the current part 60-20 at paragraph 60-20.3(g) regarding the provision of leave to employees who require time away from work on account of childbearing. Proposed paragraph (a) of this section incorporates the principle set forth in the Pregnancy Discrimination Act that discrimination on the basis of sex includes “because of or on the basis of pregnancy, childbirth, or related medical conditions.” It requires that contractors treat employees and job applicants of childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work and defines the term “related medical conditions.” Further, it incorporates the provision in the PDA, codified in 42 U.S.C. 2000e(k), that exempts employers from having to pay for health insurance benefits for abortion “except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion,” and the further proviso that nothing in that exemption “preclude[s] a contractor from providing abortion benefits or otherwise affect[s] bargaining agreements in regard to abortion.” Proposed paragraph (b) sets forth some of the most common applications of the general principle of nondiscrimination on the basis of pregnancy, childbirth, or related medical conditions. These examples include refusing to hire applicants because of pregnancy or childbearing capacity (paragraph (b)(1)); firing employees or requiring them to go on leave because they become pregnant or have a child (paragraph (b)(2)); limiting a pregnant employee's job duties based on pregnancy or requiring a doctor's note in order for the employee to continue employment while pregnant (paragraph (b)(3)); and providing employees with health insurance that does not cover hospitalization and other medical costs for pregnancy, childbirth, or related medical conditions, including contraception coverage, to the same extent that such costs are covered for other medical conditions (paragraph (b)(4)). Paragraph (b)(5) includes, as another common example of discrimination based on pregnancy, childbirth, or related medical conditions, failure to provide reasonable workplace accommodations to employees affected by such conditions when such accommodations are provided to other workers similar in their ability or inability to work. 72 Without such workplace accommodations, many pregnant workers are forced to go on leave. Unfortunately, insufficient job-protected leave, time-limited temporary disability insurance, and minimal sick leave often fail to cover the entire period of pregnancy-related work limitations. Consequently, some pregnant workers who need reasonable accommodations lose their jobs, wages, and health care coverage. 73 72 This is true even though “pregnancy itself is not an impairment within the meaning of the [Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., as amended], and thus is never on its own a disability.” EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues, sec. II.A (July 14, 2014) (footnote omitted), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last accessed December 12, 2014). 73 Heavy Lift, supra note 51, at 1, 4, 6, 8, 9-10, 11, 15, 18. The range of accommodations to address the temporary limitations of a pregnant worker may include simple things that involve little or no cost, such as permitting more frequent bathroom breaks and allowing the pregnant worker to sit down during a shift. 74 Other temporary limitations, however, may require a temporary light-duty assignment to accommodate lifting or bending restrictions that a pregnant worker may have. 74 In addition, the Fair Labor Standards Act, 29 U.S.C. 207(r), requires employers of 50 or more employees (and smaller employers if complying does not impose an undue hardship) to provide reasonable break time for an employee to express breast milk for a nursing child for one year after the child's birth, each time such employee has need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. Denying an alternative job assignment, modified duties, or other accommodations to a pregnant employee who is temporarily unable to perform some job duties because of pregnancy, childbirth, or a related medical condition is sex discrimination when such assignments, modifications, or other accommodations are provided, or are required to be provided, by a contractor's policy or other relevant laws, to other employees whose abilities to perform some of their job duties are similarly affected (paragraph (b)(5)). Thus, for example, a contractor that permits light-duty assignments for employees who are unable to work their regular assignments due to on-the-job injuries or disabilities must also permit light-duty assignments for employees who are unable to work their regular assignments due to pregnancy. The approach set forth here with respect to pregnancy accommodation is intended to align OFCCP's regulations implementing Executive Order 11246 with EEOC guidance in this area and with the position taken by the Federal government in Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted (U.S. No. 12-1226, July 1, 2014), a case currently before the Supreme Court. Should the Supreme Court rule contrary to our interpretation, OFCCP's final rule will be revised consistent with the ruling. The EEOC has long interpreted the PDA in this way, stating as early as 1979 that “[a]n employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees.” 29 CFR pt. 1604, App. ¶ 5 (emphasis added). It reaffirmed this position in its 2014 PDA enforcement guidance. EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues I.C.1.b (July 14, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm; see also 9 CFR pt. 1604, App. ¶ 5 (“[a]n employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees.” ) (emphasis added); id. (“If other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function.”). As the Government has argued in its brief before the Supreme Court in Young, nothing in the plain language of the PDA or any EEOC guidance suggests that the underlying reason for the inability to work is relevant; as long as the employees are “similar in their inability to work,” those affected by pregnancy, childbirth, or related medical conditions must be provided the same accommodation as those not so affected, regardless of the reasons for the inability to work. See Brief for the United States as Amicus Curiae Supporting Petitioner in Young v. United Parcel Service, Inc., No. 12-1226 (U.S.), 2014 WL 4536939, at *16 (“Nothing in the PDA indicates that a pregnant employee faces discrimination . . . only when she receives less favorable treatment than every other employee who is similar in his or her ability or inability to work. The plain text of the statute prohibits treating pregnant employees less favorably (for any `employment-related purpose[ ]') than `other persons not so affected but similar in their ability or inability to work.'”) (citation omitted); id. at *26 (“Recognizing that petitioner has established a violation of the PDA is consistent with the longstanding position of the EEOC.”). 75 See also International Union v. Johnson Controls, Inc., 499 U.S. 187, 204-05 (1991) (“[u]nless pregnant employees differ from others in their ability or inability to work, they must be treated the same as other employees for all employment-related purposes” (citation and internal quotation marks omitted; emphases added)); Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996); Raciti-Hur v. Homan, No. 98-1218, 1999 U.S. App. LEXIS 9551, 1999 WL 331650 (6th Cir. May 13, 1999) (unpublished); Latowski v. Northwoods Nursing Center, No. 12-2408, 2013 U.S. App. LEXIS 25738, at *10-*11 (6th Cir. December 23, 2013) (unpublished). 76 75 The EEOC further explained its position in EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) (decided on other grounds). The EEOC argued in Horizon that “the Charging Parties are most appropriately compared to all temporarily-disabled, non-pregnant employees whether they sustained their injuries on or off the job.” Id. at 1194-1195 (emphasis added). 76 Other Sixth Circuit opinions appear to suggest a different interpretation of the PDA. Reeves v. Swift Transp. Co., 446 F.3d 637 (6th Cir. 2006); Tysinger v. Police Dept., 463 F.3d 569 (2006). In addition, other circuits have held that the reason for employees' inability to work does make a difference to the determination whether employees affected by pregnancy, childbirth, or related medical conditions are similarly situated to those not so affected for purposes of receiving accommodations for their inability to work. Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted (U.S. No. 12-1226 , July 1, 2014 ); Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 548-549 (7th Cir. 2011); Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312-1313 (11th Cir. 1999); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 207-208 (5th Cir.), cert. denied, 525 U.S. 1000 (1998); Troupe v. May Dep't Stores Co., 20 F.3d 734, 738 (7th Cir. 1994). The phrase “or are required to be provided by a contractor's policy or other relevant laws” is included to cover the situation where a contractor's policy or a relevant law (such as the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., as amended (ADA), and section 503) would require an alternative job assignment or job modification to be provided to an employee not affected by pregnancy, childbirth, or related medical condition but who is similarly restricted in his or her ability to perform the job. In such a situation, the existence of the policy or law ( e.g., the ADA and Section 503) requiring reasonable accommodation or job modifications for the one class of employees—employees with disabilities who are not affected by pregnancy, childbirth, or related medical conditions—requires that the contractor similarly provide such accommodations to pregnant employees who are similar in their ability or inability to work. Failure to do so is disparate treatment in violation of Executive Order 11246. The list in § 60-20.5(b) is by no means exhaustive, but rather, contains a few illustrative examples. The relevant provisions of the EEOC's 2014 enforcement guidance on pregnancy discrimination as well as its Guidelines on Discrimination Because of Sex (29 CFR 1604.10) and Questions and Answers on the Pregnancy Discrimination Act (Appendix to part 1604 of 29 CFR) provide additional instruction. Proposed paragraph (c) addresses the provision of leave related to pregnancy, childbirth, or related medical conditions. Paragraph (c)(1) sets forth the general title VII principle that neither family nor medical leave, including family or medical leave related to pregnancy, childbirth, or related medical conditions, may be denied or provided differently on the basis of sex. Paragraph (c)(2) elaborates on this general principle. Paragraph (c)(2)(a) requires that employees affected by pregnancy, childbirth, or related medical conditions be granted medical leave, including paid sick leave, on the same basis that such leave is granted to other employees unable to work for other medical reasons. An employer may not impose requirements on pregnancy leave not imposed on other employees similar in their ability or inability to work. For example, employers may not impose a shorter maximum amount of pregnancy leave as compared to the maximum time off allowed for other types of medical or short-term disability leave. Paragraph (c)(2)(b) requires that family leave be provided to men on the same terms that it is provided to women. Consistent with the EEOC's Guidelines on Discrimination Because of Sex, 29 CFR 1604.10(c), and Section I.B.2 of its recent enforcement guidance on pregnancy discrimination, proposed paragraph (c)(3) applies disparate impact analysis to contractor leave policies that are inadequate such that they have a disparate impact on members of one sex. Thus, a contractor that provides workers who are temporarily unable to work due to pregnancy, childbirth, or related medical conditions with no parental or medical leave at all, or with insufficient leave, may be held liable for discrimination based on sex, if such a practice is found to have an adverse impact on such workers, unless the contractor can demonstrate that the failure to provide leave or sufficient leave is job related and consistent with business necessity. It should be noted that this provision is different from current § 60-20.3(g), which requires contractors to provide maternity leave whether or not their failure to do so has a disparate impact on women. However, OFCCP has not enforced this requirement in § 60-20.3(g) for some time. Instead, as was stated in its previous Federal Contractor Compliance Manual (FCCM), issued in 1988, OFCCP has: consistent with the PDA, [current] 41 CFR 60-1.4(a), and the EEOC Guidelines on Discrimination Because of Sex, . . . implement[ed] the following policies: i. . . . ii. If the contractor's leave policy, or lack thereof, has an adverse impact on employees of one sex and is not justified by business necessity, it violates the Executive Order. 77 77 U.S. Department of Labor, Office of Federal Contract Compliance Programs Federal Contract Compliance Manual (1988), ch. 3, § 3G01(h)(2) (on file with OFCCP) (hereinafter Previous FCCM). A version of this Manual (dated 1993, but containing the same language) is available at http://www.docstoc.com/docs/8387063/Federal-Contract (last accessed Oct. 7, 2014). Similarly, the current FCCM requires Compliance Officers to “examine whether the contractor's leave policy, or lack thereof, has an adverse impact on employees of one sex and is not justified by business necessity.” Section 2H01(b). Thus, proposed paragraph (c)(3) is consistent both with OFCCP's current and long-standing practice. OFCCP welcomes comments from stakeholders about current practices and policies regarding workplace accommodations and leave for pregnancy, childbirth, or related medical conditions; for care for newborn or newly adopted or foster children; and for an employee's serious health conditions (other than those related to pregnancy and childbirth). Section 60-20.6 Other Fringe Benefits Current § 60-20.6 entitled “Affirmative action” has been removed because the requirements related to affirmative action programs are set forth in parts 60-2 and 60-4 of this title. This proposed section is new and is divided into three paragraphs. Proposed paragraph (a) states the general principle that contractors may not discriminate on the basis of sex in the provision of fringe benefits. Proposed paragraph (b) defines “fringe benefits” broadly to encompass a variety of such benefits that are now provided by contractors. In proposed paragraph (c), OFCCP replaces the inaccurate statement found at current § 60-20.3(c) that a contractor will not be considered to have violated the Executive Order if its contributions for fringe benefits are the same for men and women or if the resulting benefits are equal. In 1978, the Supreme Court held that under title VII, an employer must provide equal benefits to men and women, even if doing so costs more for one sex than the other. City of Los Angeles v. Manhart, 435 U.S. 702 (1978); see also Ariz. Governing Comm. v. Norris, 463 U.S. 1073 (1983). 78 78 Indeed, the FCCM follows current law, providing that “if the contractor is not providing equal fringe benefits and/or not making equal contributions to insurance plans or pensions for men and women, this may constitute discrimination.” FCCM, ch. 2, § 2L03. The Previous FCCM also noted the discrepancy between OFCCP's regulations and title VII law, providing (in chapter 3, § 3G01(h)(3)) that because— OFCCP's policy is to interpret the nondiscrimination provisions of the Executive Order consistent with Title VII principles. . . , if [an OFCCP compliance officer] becomes aware of a situation where a contractor is either not paying equal fringe benefits and/or not making equal contributions to fringe benefits for men and women, the matter should be brought to the attention of RSOL [the Regional Solicitor of Labor]. Section 60-20.7 Employment Decisions Made on the Basis of Sex-Based Stereotypes This proposed section is new. It states the well-recognized principle that employment decisions made on the basis of stereotypes about how males and/or females are expected to look, speak, or act are a form of sex-based employment discrimination. As the Supreme Court stated in Price Waterhouse v. Hopkins, 490 U.S. at 251, “we are beyond the day when an employer can evaluate employees by assuming or insisting that they match the stereotype associated with their . . . [sex].” In Price Waterhouse, the Court held that an employer's failure to promote a female senior manager to partner because of the sex-stereotyped perceptions that she was too aggressive and did not “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry” was unlawful sex-based employment discrimination. 79 The principle that sex-based stereotyping is a form of sex discrimination has been applied consistently in Supreme Court and lower-court decisions. See, e.g., Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) (stereotype-based beliefs about the allocation of family duties on which state employers relied in establishing discriminatory leave policies held to be sex discrimination under the Constitution); Chadwick v. Wellpoint, Inc., 561 F.3d 38 (1st Cir. 2009) (making employment decision based on the belief that women with young children neglect their job responsibilities is unlawful sex discrimination); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009) (harassment based on a man's effeminacy); Terveer v. Billington, 2014 WL 1280301 (D. DC March 31, 2014) (hostile work environment based on stereotyped beliefs about the appropriateness of same-sex relationships). 80 Cf. U.S. v. Virginia, 518 U.S. 515, 533 (1996) (in making classifications based on sex, state governments “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females”). 81 Specific examples of such stereotyping follow in proposed paragraphs (a) through (c). 79 Price Waterhouse, 490 U.S. at 235. 80 See also Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002) (“Sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotype about the proper roles of men and women.”); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Or. 2002) (“[A] jury could find that Cagle repeatedly harassed (and ultimately discharged) Heller because Heller did not conform to Cagle's stereotype of how a woman ought to behave. Heller is attracted to and dates other women, whereas Cagle believes that a woman should be attracted to and date only men.”). The EEOC has recognized in a long line of federal sector decisions that adverse actions taken on the basis of sex stereotypes related to sexual orientation violate Title VII. Castello v. U.S. Postal Service, EEOC Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011) (sex-stereotyping evidence entailed offensive comment by manager about female subordinate's relationships with women); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011) (complainant stated plausible sex-stereotyping claim alleging harassment because he married a man); Culp v. Dep't of Homeland Security, EEOC Appeal 0720130012, 2013 WL 2146756 (May 7, 2013) (Title VII covers discrimination based on associating with lesbian colleague); Couch v. Dep't of Energy, EEOC Appeal No. 0120131136, 2013 WL 4499198, at *8 (Aug. 13, 2013) (complainant's claim of harassment based on his “perceived sexual orientation”); Complainant v. Department of Homeland Security, EEOC Appeal No. 0120110576, 2014 WL 4407422 (Aug. 20, 2014) (“While Title VII's prohibition of discrimination does not explicitly include sexual orientation as a basis, Title VII prohibits sex discrimination, including sex-stereotyping discrimination and gender discrimination” and “sex discrimination claims may intersect with claims of sexual orientation discrimination.”). 81 The U.S. Court of Appeals for the Seventh Circuit articulated this principle as early as 1971. Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (“In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” ) (emphasis added). Proposed paragraphs 60-20.7(a), (b), and (c) address stereotyping based on an employee's nonconformity with norms about how people with the employee's assigned sex at birth should look, speak, and act. Paragraph (a) sets forth three examples of such stereotyping: in proposed paragraph 60-20.7(a)(1), failure to promote female employee because she did not wear jewelry, make-up, or high heels ( see Price Waterhouse, supra); in proposed paragraph 60-20.7(a)(2), harassment of a man because he is too effeminate, ( see Prowel v. Wise Bus. Forms, Inc., supra ); and in proposed paragraph 60-20.7(a)(3), adverse treatment of an employee because he or she does not conform to sex-role expectations by being in a relationship with a person of the same sex ( see Veretto v. U.S. Postal Service and Castello v. U.S. Postal Service, supra note 80). Paragraph (b) addresses disparate treatment based on gender identity. As noted above, disparate treatment of a transgender employee may constitute discrimination because of the individual's non-conformity to sex-based stereotypes. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (holding that transgender woman was a member of a protected class based on her failure to conform to sex-based stereotypes and thus her title VII claim was actionable); Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004) (“discrimination against a plaintiff who is a transsexual [ sic ]—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against [the plaintiff] in Price Waterhouse who, in sex-stereotypical terms, did not act like a woman”); Schroer v. Billington, supra, at 305-06 (D.D.C. 2008) (withdrawal of a job offer from a transgender applicant constituted sex-stereotyping discrimination in violation of title VII). In addition to these appellate cases, “[t]here has likewise been a steady stream of district court decisions recognizing that discrimination against transsexuals [ sic ] on the basis of sex-based stereotyping constitutes discrimination because of sex.” Macy v. Holder, supra. See also Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (termination of a transgender employee constituted discrimination on the basis of gender non-conformity and sex-stereotyping discrimination under Equal Protection Clause). Cf. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (same-sex harassment may be sex discrimination); Prowel v. Wise Bus. Forms, 579 F.3d 285 (3d Cir. 2009) (harassment of an “effeminate” man may be sex discrimination). 82 This principle—that discrimination against a transgender individual is discrimination based on non-conformity to sex-based stereotypes, and thus sex discrimination—has also been adopted under the Gender-Motivated Violence Act, 83 Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000), and the Equal Credit Opportunity Act, 84 Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000). 82 See also Statement of Interest of the United States at 4, Apr. 4, 2014, in Burnett v. City of Philadelphia, No. 09-4348 (E.D. Pa.) (“Since Price Waterhouse, in cases where the defendant's action had been motivated by the plaintiff's failure to conform with sex-based stereotypes, every Federal circuit court of appeals that has addressed the question has recognized that disparate treatment against a transgender plaintiff can be discrimination `because . . . of sex.' ”). 83 42 U.S.C. 13981. 84 15 U.S.C. 1691. Paragraph 60-20.7(c) addresses stereotyping based on specific expectations about the proper roles of women and men regarding caregiving. As noted above, the EEOC recognizes that adverse treatment of women stemming from sex-based assumptions about “childcare responsibilities that will make female employees less dependable than male employees” violates title VII. 85 Even an employer's perceptions of a caregiver's work performance can, consciously or unconsciously, be affected by sex-based stereotypes that female caregivers are “less capable and skilled than their childless female counterparts or their male counterparts” (Caregiving Guidance, II.A.4). Moreover— 85 EEOC, Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities II.A.3 (last modified Feb. 8, 2011), http://www.eeoc.gov/policy/docs/caregiving.html (last accessed Oct. 2, 2014). Gender-based stereotypes may also influence how male workers are perceived: “Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination.” Stereotypes of men as “bread winners” can further lead to the perception that a man who works part time is not a good father, even if he does so to care for his children. Thus, while working women have generally borne the brunt of gender-based stereotyping, unlawful assumptions about working fathers and other male caregivers have sometimes led employers to deny male employees opportunities that have been provided to working women or to subject men who are primary caregivers to harassment or other disparate treatment. For example, some employers have denied male employees' requests for leave for childcare purposes even while granting female employees' requests. Caregiving Guidance II.C [footnotes omitted]. In its introduction, the Caregiving Guidance also notes that discrimination against caregivers may also fall under the ADA, which prohibits discrimination based on an employee's association with an individual with a disability. The same is true of section 503. Section 60-20.8 Harassment and Hostile Work Environments This proposed section is new. It has been well-recognized for many years that harassment on the basis of sex, including the existence of a work environment that is hostile to members of one sex, may give rise to a violation of title VII. 86 Moreover, sexual harassment continues to be a serious problem for women in the workplace 87 and a significant barrier to women's entry into and advancement in many nontraditional occupations, including the construction trades and the computer and information technology industries. Yet, current part 60-20 does not include any references to sexual harassment or hostile work environments. Proposed § 20.8 remedies this omission. 88 86 U.S. Equal Employment Opportunity Commission Guidelines on Discrimination Because of Sex, 41 CFR 1604.11 (1980) (provision on harassment); Harris v. Forklift Sys., 510 U.S. 17 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986); Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977). 87 In FY 2013, the EEOC received 7,256 sexual harassment charges (out of 93,727). U.S. Equal Employment Opportunity Commission, Enforcement & Litigation Statistics, Sexual Harassment Charges FY 2010—2013, available at http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm (last accessed Nov. 2, 2014); U.S. Equal Employment Opportunity Commission, Enforcement and Litigation Statistics, Charge Statistics: FY 1997 Through FY 2013, available at http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last accessed Nov. 2, 2014). In FY 2011 (the last year for which combined data is available), the EEOC and state and local fair employment practices agencies together received just over 11,300 charges of sexual harassment. The average number of such claims filed per year from FY 2000 through FY 2011 was 13,446. OFCCP calculations from data in U.S. Equal Employment Opportunity Commission, Enforcement & Litigation Statistics, Sexual Harassment Charges: EEOC & FEPAs Combined: FY 1997—FY 2011, available at http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm (last accessed Nov. 2, 2014). 88 The one reference to harassment in OFCCP's current body of regulations implementing Executive Order 11246 is that construction contractors are required to “[e]nsure and maintain a working environment free of harassment, intimidation, and coercion at all sites.” 41 CFR 60-4.3(a) (subsections 7(a) and (n) of the required Equal Opportunity Clause for construction contracts). In addition, in chapter 3, § 2H01(d), the FCCM recognizes that “[a]lthough not specifically mentioned in the Guidelines, sexual harassment (as well as harassment on the basis of race, national origin or religion) is a violation of the nondiscrimination provisions of the Executive Order” and directs OFCCP compliance officers to “be alert for any indications of such harassment.” It goes on to state that “OFCCP follows Title VII principles when determining whether sexual harassment has occurred.” Proposed paragraph 60-20.8(a) incorporates the provision of EEOC's Guidelines relating to sexual harassment virtually verbatim. See 29 CFR 1604.11(a). Inclusion of the EEOC language is intended to align the prohibitions of sexually harassing conduct under the Executive Order with the prohibitions under title VII. Proposed paragraph 60-20.8(b) defines harassment because of sex under the Executive Order broadly to include sexual harassment (including sexual harassment based on gender identity), harassment based on pregnancy, childbirth, or related medical conditions, and harassment that is not sexual in nature but is because of sex (including harassment based on gender identity). This aligns the meaning of “because of sex” for purposes of sexual harassment with its meaning under current title VII and Executive Order law. See proposed § 60-20.2, which includes discrimination on the bases of pregnancy, childbirth, or related medical conditions and gender identity discrimination as types of sex discrimination. Proposed paragraph 60-20.8(c) suggests as best practices procedures that contractors may develop and implement “to ensure an environment in which all employees feel safe, welcomed, and treated fairly . . . [and] are not harassed because of sex.” The suggested procedures are: Broad dissemination of the message “that harassing conduct will not be tolerated” (paragraph 60-20.8(c)(1)); anti-harassment training (paragraph 60-20.8(c)(2)); and procedures for handling and resolving complaints “about harassment and intimidation based on sex” (paragraph 60-20.8(c)(3)). Contractors are not required to use such procedures and will not be found in violation of this part for not using such procedures. We note, however, that using such procedures may assist contractors in meeting their obligations with respect to harassment and hostile work environments. Procedures such as these are key to preventing harassment before it occurs. In addition, a contractor can avoid or reduce liability for certain sexually harassing acts committed by its supervisors if it can show that it has taken reasonable care to prevent and correct harassment. 89 The activities listed in paragraph 60-20.8(c) are the kinds of activities that would help a contractor in making that showing. For example, taking reasonable care “generally requires establish[ing], disseminat[ing], and enforcing an anti-harassment policy and complaint procedure.” 90 The law does not require such activities, but it does encourage employers to engage in them. 89 The Supreme Court established this affirmative defense in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). See also U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (July 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html (last accessed Oct. 7, 2014) [hereinafter EEOC Guidance on Vicarious Liability for Unlawful Harassment]. 90 EEOC Guidance on Vicarious Liability for Unlawful Harassment, supra note 89, § V(C). Regulatory Procedures Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives, and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with obtaining the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits. Executive Order 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. This proposed rule has been designated a “significant regulatory action” although not economically significant, under § 3(f) of Executive Order 12866. The NPRM is not economically significant, as it will not have an annual effect on the economy of $100 million or more. The Office of Management and Budget has reviewed the NPRM. The Need for the Regulation OFCCP's longstanding policy is to follow title VII principles when conducting analyses of potential sex discrimination under Executive Order 11246. See Notice of Final Rescission, 78 FR 13508, February 28, 2013. However, the existing Sex Discrimination Guidelines, unchanged since their initial promulgation in 1970 and re-issuance in 1978, are no longer an accurate depiction of current title VII principles. Title VII has been significantly amended four times since that time, and the Supreme Court has issued several decisions clarifying that practices such as sexual harassment can be unlawful discrimination. In light of these changes, this proposed rule revises the current Guidelines, and replaces them with new sex discrimination regulations that accurately set forth a contractor's obligation not to discriminate on the basis of sex in accordance with current title VII principles. (A more detailed discussion of the need for the regulation is contained in Reasons for Amending the Current Sex Discrimination Guidelines, supra. ) Discussion of Impacts In this section, OFCCP presents a summary of the costs associated with the new requirements in part 60-20. Comments are welcome on every aspect of the cost and burden calculations including but not limited to the amount of time contractors would spend on complying with the proposals in this NPRM, including those related to accommodations for light duty. The estimated labor cost to contractors and subcontractors is based on U.S. Department of Labor, Bureau of Labor Statistics (BLS) data in the publication “Employer Costs for Employee Compensation” issu [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-01422. Public record. Not legal advice.