The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
John C. Fox and Candee Chambers

June 2, 2015: OSHA Issues “Guide To Restroom Access for Transgender Workers.” OSHA Transgender Bathroom Best Practices Guide. The federal Occupational Safety & Health Administration (“OSHA”) has now weighed in on transgender rights issues by suggesting that “best practices” (not federal OSHA law) suggest the wisdom that;

  1. “…no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status;” and
  2. “Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.”

NOTE: OSHA has authority to require employers covered by the Occupational Safety & Health Act (“OSHA”) to provide a safe and healthy working environment for all employees. OSHA’s (the federal agency) stated concern is that employers providing single-use only bathrooms (requiring transgendered employees to not use available male or female only bathrooms)…“can result in employees avoiding using bathrooms entirely while at work, which can lead to potentially serious physical injury or illness.”

Because OSHA casts it “Guide” as “Best Practices” and only suggests that OSHA-covered employers “should” follow these Best Practices, OSHA is not thus far threatening prosecutions for violation of OSHA requirements should OSHA-covered employers restrict transgendered employees to single-use restrooms. But see John Fox’s recent DE Webinar recording and PowerPoints discussing OFCCP’s recent amendment to its regulations seeking to provide substantive non-discrimination rights to transgender and trans-sexual employees and OFCCP’s assertions that single-use bathrooms violate Executive Order 11246’s recent ban on “gender identity” discrimination.

June 3, 2015: OFCCP creates new web page providing Visa denial information. Based on federal contractor concerns and inquiries regarding the denial of Visas by foreign governments related to an employee’s sexual orientation or gender identity, the OFCCP has posted a new web page guiding contractors to contact the OFCCP and the State Department, as required by OFCCP regulations. Resources are also available to obtain assistance in receiving a visa for their employees.

The new webpage can be found by clicking on this link: OFCCP Visa Denial Webpage

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DE members), or send an email to Candee Chambers at candee@directemployers.org with your ideas.

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John C. Fox
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