Monday, July 25, 2016

DOL Adopts Regulations on Gender Identity Rights

Although not many employers in the nation are federal contractors, when an Executive Order issues  regulations affecting contractors, and when the Department of Labor adopts them, it reflects an undeniable social trend.
This summer. the DOL’s Office of Federal Contract Compliance Programs (OFCCP) adopted a final rule updating the guidelines on sex discrimination for federal contractors by including sexual orientation and gender identity as protected classes. The revised rule applies to federal contractors and subcontractors with contracts totaling $10,000 or more over a 12-month period, unless they are otherwise exempt.

The guidelines also contain expanded definitions of sex discrimination and sexual harassment by including pregnancy, childbirth or related medical conditions, gender identity, transgender status, and sex stereotyping in the definition of “sex”. The guidelines also expanded the term “harassment based on sex” to include harassment based on gender identity or transgender status, harassment based on pregnancy, childbirth, or related medical conditions, and harassment based on sex-based stereotypes, such as how males and females are expected to look, speak or act. Prohibited discrimination based on sex stereotypes includes adverse treatment of an employee or applicant because of the individual’s failure to comply with gender norms or expectations regarding dress, appearance, sexual orientation, and actual or perceived gender identity or transgender status.

While transgender individuals comprise roughly three to five percent of the U.S. population, rights for transgender individuals have taken center stage over the past year. While states remain divided over rules and regulations that affect transgender individuals’ rights in the workplace and to access public services and facilities, Illinois is one of about almost half of the states that have already adopted laws prohibiting discrimination based on gender identity. If Executive Orders and federal agency regulations serve as a bellwether to how the courts will rule on this hot topic (like they did most recently on same sex marriage) then the nation is headed for more complete change.