OFCCP Issues Directive that Gender Identity Discrimination is Sex Discrimination | Practical Law

OFCCP Issues Directive that Gender Identity Discrimination is Sex Discrimination | Practical Law

The Office of Federal Contract Compliance Programs (OFCCP) released Directive 2014-02, clarifying that under Executive Order 11246, discrimination on the basis of sex includes discrimination on the bases of gender identity and transgender status. The directive is effective immediately.

OFCCP Issues Directive that Gender Identity Discrimination is Sex Discrimination

Practical Law Legal Update 0-578-7886 (Approx. 5 pages)

OFCCP Issues Directive that Gender Identity Discrimination is Sex Discrimination

by Practical Law Labor & Employment
Published on 22 Aug 2014 • USA (National/Federal)
The Office of Federal Contract Compliance Programs (OFCCP) released Directive 2014-02, clarifying that under Executive Order 11246, discrimination on the basis of sex includes discrimination on the bases of gender identity and transgender status. The directive is effective immediately.
On August 19, 2014, the Office of Federal Contract Compliance Programs (OFCCP) released Directive 2014-02, clarifying that under Executive Order 11246, discrimination on the basis of sex includes discrimination on the bases of gender identity and transgender status. The directive is effective immediately.
On June 30, 2014, the Secretary of Labor announced that the DOL would update its enforcement protocols and non-discrimination guidance to clarify that it provides protection under federal non-discrimination laws to individuals with:
  • Gender identity claims.
  • Transgender status claims.
Executive Order 11246 originally prohibited federal contractors from discriminating against individuals on the basis of race, color, religion, sex or national origin, but was amended on July 21, 2014 by Executive Order 13672 to include sexual orientation and gender identity as protected classes.
According to Directive 2014-02:
  • The OFCCP interprets Executive Order 11246's non-discrimination obligations according to case law under Title VII and the interpretations of the EEOC.
  • Gender identity and transgender status are prohibited forms of sex discrimination.
  • The EEOC concluded in Macy v. Holder, that:
    • discrimination based on transgender status is sex discrimination in violation of Title VII;
    • disparate treatment of transgender employees for not conforming to gender stereotypes associated with their biological sex is sex discrimination;
    • gender discrimination encompasses a person's biological sex as well as cultural and social aspects associated with masculinity and femininity; and
    • gender identity and transgender status do not need to be specifically addressed in Title VII to be protected bases of discrimination, since they fall under the umbrella of sex discrimination.
    (EEOC DOC 0120120821, (April 20, 2012).)
  • OFCCP compliance officers will evaluate claims of gender identity or transgender status discrimination as sex discrimination complaints.
  • The OFCCP will request that in cases of individual allegations of gender identity discrimination, it will initially retain those complaints from the EEOC to ensure that Directive 2014-02 is effectively enforced.
Discrimination on the basis of sexual orientation is not addressed in this directive.