The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) published a final rule today, implementing Executive Order (“EO”) 13672, signed by President Obama July 21, 2014. Before EO 13762, federal contractors were only prohibited from discriminating against employees on the basis of race, color, religion, sex and national origin. EO 13762 now adds sexual orientation and gender identity to the protected classes.

The OFCCP final rule codifies these new protections in 41 C.F.R. Part 60-1. Under the revise regulations, the words “sex, or national origin” are replaced by “sex, sexual orientation, gender identity or national origin.” In order to comply with the revisions, federal government contractors and subcontractors must:

  • Take affirmative action to ensure that applicants and employees are not discriminated against on the basis of their sexual orientation and gender identity
  • Include sexual orientation and gender identity as prohibited bases of discrimination under the Equal Opportunity Clause
  • Include an updated Equal Opportunity Clause in new or modified subcontracts and purchase orders
  • Update the equal opportunity language used in job solicitations to include sexual orientation and gender identity as protected traits
  • Post updated notices that reflect that sexual orientation and gender identity are protected traits

The final rule does not, however, require federal contractors to set goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze data on these bases.

The final rule applies to businesses that enter into a covered federal contract or subcontract on or after the effective date of the final rule. The rule will become effective early April 2015, 120 days after its publication in the Federal Register. OFCCP intends to publish compliance assistance materials, such as fact sheets and “Frequently Asked Questions,” before the final rule takes effect. In addition, OFCCP will host webinars that will describe the amended requirements and conduct workshops and forums to listen to any questions and concerns contractors and other stakeholders may have.

Federal contractors and subcontractors should review their current employment and hiring practices to ensure compliance with their obligations under the final rule. Further, these contractors will need to update their Affirmative Action and Equal Employment Opportunity policies and statements to include the new protected classes, and ensure that the language used in solicitations and posted notices are revised.