Feds issue sex discrimination final rule: 7 things all employers need to know
The DOL’s Office of Federal Contract Compliance Programs (OFCCP) just updated a final rule updating the sex discrimination regulations federal contractors are required to abide by. But there’s a reason private sector employers should pay attention as well.
That reason: This rule is a clear indicator of how the DOL expects all employers to treat their employees and applicants — and it shows the kinds of treatment federal investigators will be sensitive to when looking into employer practices in general.
As a result, even if you’re not a federal contractor, it can pay to familiarize yourself with the new rule.
Here are seven things you need to know:
- Restroom usage. The OFCCP says employers covered by the rule must allow workers to use the restrooms, changing rooms, showers and similar facilities consistent with the gender with which the employee identifies.
- Discriminatory compensation. To no one’s surprise, the rule specifically states that covered employers cannot pay workers differently because of their sex. The rule then goes a little deeper — laying out that if workers are “similarly situated” (i.e. they have similar job duties, levels of responsibility, working conditions, job difficulty, etc.) they cannot be paid differently based on sex. And the rule states that employees may be considered “similarly situated” if they are comparable on some of these factors and not necessarily all of them.
- Other “pay” practices. On another compensation-related note, covered employers cannot deny opportunities for overtime work, training, better pay or higher-paying positions because of a worker’s sex.
- Pregnancy and childbirth. The rule requires covered employers to provide workplace accommodations — like extra bathroom breaks and light-duty assignments — if an employee needs them due to pregnancy, childbirth or another, related medical condition if the employer can/or does provide those accommodations to other workers.
- Workforce development opportunities. Covered employers are prohibited from setting requirements for jobs or training that are based on an applicant’s or employee’s sex, unless the employer clearly demonstrates that such requirements are necessary to perform the job. And the OFCCP says that the bar employers need to reach to prove a requirement is a job necessity will be set very high. Example: The OFCCP said the use of strength tests in hiring that exceed the actual demands of the job — and that negatively impact women — may be illegal. In addition, employers will have to prove that height or weight requirements for a job that adversely affect one sex more than another are also a business necessity.
- ‘Word-of-mouth’ or ‘tap-on-the-shoulder’ recruiting. Advertising or sending job — or promotion — offers only to members of a certain sex could be discriminatory if the purpose is to exclude another sex from applying.
- Stereotyping. Covered employers may not treat employees or applicants adversely because they fail to comply with expectations about how women and men should look or act, or what kinds of jobs they should do. Examples include harassing a male employee because he is considered effeminate or insufficiently masculine or denying women employment opportunities that are available to men based on the assumption that women take on more childcare responsibilities and it’ll conflict with their job performance.
The Final Rule will go into effect Aug. 15, 2016.
