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New guidelines for federal contractors to follow to avoid sex discrimination are long overdue and will align the rules with developments since they were issued in 1970.
The proposals would revise the Office of Federal Contract Compliance Program's stance to align with laws, court decisions and societal changes since they were issued 45 years ago, the department said last week in a statement.
According to a U.S. Department of Labor fact sheet, Title VII of the Civil Rights Act of 1964 has been amended several times, including by the 1978 Pregnancy Discrimination Act. In addition, current guidelines do not reflect significant changes that Congress has made to Title VII, nor the case law that has developed since 1970.
“For the most part, the proposed regulations really do try to bring the OFCCP's regulations up to date. For decades, these regulations have really not kept pace with court decisions or other regulatory changes,” said Alissa A. Horvitz, co-chair of the OFCCP practice group at law firm Littler Mendelson P.C. in Washington.
One significant change is a provision that expressly requires that contractors provide transgender employees access to bathrooms used by the gender with which they identify, said Cara Yates Crotty, a partner at Constangy, Brooks & Smith L.L.P. in Columbia, South Carolina. This is the first time federal rules would impose such a requirement, she said.
However, Ms. Horvitz said, the rules would apply to relatively few employers. “I just don't think there are that many individuals who are expressing” those types of concerns, she said.
“For the most part,” Ms. Crotty said, the proposal “pretty much just regurgitates what is relayed in the (Equal Employment Opportunity Commission's) position on things.”
Comments on the proposal are due March 31.
“There are going to be just a few targeted comments,” Ms. Horvitz said. “By and large, these regulations are likely to be enacted pretty close to their proposed form” and will not cause employers undue hardship.
In a reversal of an earlier position that will affect public employers, U.S. Attorney General Eric Holder has announced that the Department of Justice will now take the position in litigation that Title VII of the Civil Rights Act of 1964 extends to protecting transgendered individuals.