The OFCCP Reminds Federal Contractors and Subs Of LGBTQI+ Obligations

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) reminds federal contractors and subcontractors that it strives to ensure that LGBTQI+ workers are not the subject of discrimination and that federal contractors advance equal employment opportunity.

The OFCCP is the agency that “protects the rights of employees and job applicants of companies doing business with the Federal Government,” according to this Fact Sheet.

Generally speaking, if a business or organization has a federal contract, subcontract, or federally-assisted construction contract in excess of $10,000; has a federal contract with a combined total in excess of $10,000 in a 12-month period; or 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, it will be subject to the sexual orientation and gender identity requirements of Executive Order 11246.

What is EO 11246? It is an executive order that expressly prohibits federal contractors from discriminating against job applicants and employees based on sexual orientation and gender identity.

LGBTQI+ Discrimination Statistics

The OFFCP noted that a September 2021 Williams Institute School of Law report found that “more than 40% of LGBT workers reported experiencing unfair treatment at work, including being fired, not hired, or harassed because of their sexual orientation or gender identity” at one point or another in their careers. 

Then if a worker is a member of another protected class such as race or national origin, i.e., intersectional, the statistics widen.

Photo by Carlos de Toro @carlosdetoro on Unsplash

Indeed, the OFFCP stated that the same study reported LGBT employees of color were significantly more likely to report not being hired because of their sexual orientation or gender identity than white LGBT employees by 29.0% to 18.3%.

Information and Guidance for Federal Contractors

Helpfully, the OFFCP reminds contractors that it issued some helpful information:

The FAQs are particularly helpful, defining terms for contractors and answering some common questions. One such question I’ve been asked by an employer is “Can I ask a transgender employee or applicant to prove their gender identity? The answer: no, no you cannot.

Employer Takeaway

Two years ago this month, the Supreme Court of the United States ruled in Bostock v. Claytonthat an employer who fires or takes an adverse action against an individual merely for being gay or transgender violates Title VII’s prohibition of discrimination based on sex. Discrimination based on a person’s sexual orientation or transgender status constitutes sex discrimination, even if that was only part of the reason for an adverse action, according to the SCOTUS decision.

The OFFCP guidance reinforces the Bostock ruling, reminding federal employers of its obligations. 

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.