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.
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:
- Frequently Asked Questions on Sexual Orientation and Gender Identity
- Worker Rights Fact Sheet on sexual orientation and gender identity discrimination
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.
Two years ago this month, the Supreme Court of the United States ruled in Bostock v. Clayton, that 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.