OFCCP Webinar Recap: Filing a Complaint Based on Sexual Orientation and Gender Identity

by | Apr 13, 2015 | OFCCP Compliance

On April 8th of last week, the OFCCP presented another webinar on ‘Filing a Complaint Based on Sexual Orientation and Gender Identity.’ Below are the highlights from this webinar:

Pat Shiu, Director, OFCCP, kicked off the webinar with the following summary:

  • Gender identity and sexual orientation regulations apply to:
  • Federal contractors and subcontractors with a federal contract > $10,000
  • Affects every establishment – not just those responsible for fulfillment of the federal contract
  • Applies to all new or modified federal contracts and subcontracts on or after April 8, 2015

 

How Title VII applies to LGBT regulations from the OFCCP standpoint:

  • Title VII prohibits discrimination with regard to race, color, religion, sex and national origin
  • Sex Discrimination has been interpreted to include Gender Identity and Sexual Orientation
    • Even though specific language regarding sex discrimination is not included in Title VII
  • Complaints alleging sexual orientation or gender identity discrimination are considered dual-filed for purposes of Title VII
  • OFCCP ‘stands in the shoes’ of the EEOC to investigate and resolve the Title VII component of a complaint

 

OFCCP Accepts:

  • Individual complaints
  • Class complaints
  • Complaints filed during compensation evaluations

 

OFCCP Coordinates with the EEOC:

  • Referred to EEOC if company is NOT a federal contractor
  • Shares information related to complaint if it is not transferred
  • Jointly investigates or transfers cases in appropriate cases (no indication of what determines ‘appropriateness’)
  • Case by case basis can be referred to Solicitor’s office

 

OFCCP said a number of times during the webinar that they are the ‘neutral fact-finder’ in complaints:

The webinar was primarily held for potential complainants to educate them on how to file an LGBT claim and the types of resolution that could be found, including ‘make-whole relief’ or other corrective remedies.

Most importantly, for federal contractors, the OFCCP did report on various FAQ’s they have received:

  1. Benefits for same-sex couples:
    • Place of Celebration Rule – eliminates the ‘place of business’ or ‘place of residence’ rule
    • Place of business or place of residence rule may constitute prohibited disparate impact discrimination
    • Place of Celebration Rule
      • Based on the legality of the same-sex marriage in the state the marriage took place
      • It doesn’t matter if the couple moves to a state that does not recognize same-sex marriage; they still must be provided the same benefits as heterosexual couples
    • Civil unions or domestic partnerships
      • Benefits must be provided for these couples if they are provided for other non-married couples
  1. May an employer ask a transgender applicant or employee to prove gender identity?
    • No
    • Cannot ask for any documentation that is not requested from other employees
    • If this information is requested for name changes or medical leave, then you can ask for this information
  1. Restroom access:
    • Federal contractors must allow applicants and employees to use restrooms consistent with their gender identity
  1. Title VII Religious Exemption:
    • A religious entity may have an exemption under Executive Order 11246 (this only applies to federal contractors and subcontractors)
    • Religious organizations who are not federal contractors or subcontractors are not covered by this exemption
    • See 41 CFR § 60-1.5(a)5
  1. EEO Tag Line:
    • 2 choices:
      • EOE Minorities/Females/Protected Veterans/Disabled
      • Include all protected classes in paragraph form; if all protected classes are listed, Sexual Orientation and Gender Identity MUST be included
      • LGBT should NOT be used

 
Additional information:

  • Watch for additional webinars will be provided
  • Outreach and education to the community is critical, and the OFCCP will be providing assistance in future webinars
  • Additional FAQ’s will continue to be shared
Looking to learn more about the regulations and network with other OFCCP compliance professionals? Attend the DirectEmployers 2015 Annual Meeting & Conference in addition to the Affirmative Action Briefing pre-conference event taking place May 13-15, 2015 in Indianapolis! Learn more and register at DEAM15.DirectEmployers.org.
Receive OFCCP compliance alerts and updates right on your phone! Text the word compliance from your mobile phone to 55678 (all applicable charges and fees set by your cell phone carrier will apply).
Candee Chambers
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