In its own words, the purpose of the Office of Federal Contract Compliance Programs (OFCCP) is to: “enforce, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal government.”
The OFCCP is part of the Department of Labor (DOL), and assures non-discrimination within federal contractor workforces. There have been a number of governmental actions that have expanded the responsibilities of the OFCCP, including:
- Executive Order (EO) 11246, signed by President Lyndon B. Johnson in September of 1965, which prohibits covered ($10,000 or greater in Government business in one year) federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, or national origin;
- EO 13672, signed by President Obama on July 21, 2014, which amended EO 11246 by adding sexual orientation and gender identity to the characteristics protected under EO 11246;
- Final Rule in support of EO 13672, published in the Federal Register on December 9, 2014 and effective on April 8, 2015, changing OFCCP’s regulations to require federal contractors and subcontractors to treat applicants and employees without regard to their sexual orientation or gender identity and, most recently,
- A directive from the OFCCP, effective as of April 16, 2015, establishing that agency’s policy and procedure for accepting and investigating complaints regarding both individual and systemic discrimination based on sexual orientation and gender identity.
Title VII of the Civil Rights Act, the most widely recognized federal anti-discrimination law, and one primarily enforced by the Equal Employment Opportunity Commission (EEOC), currently does not cover sexual orientation or gender identity discrimination. Therefore, one of the purposes of the recent OFCCP directive is to clarify the fact that the OFCCP will accept and investigate not only systemic complaints of discrimination against governmental contractors based on those protected characteristics, but will do the same for individual complaints, expanding the OFCCP’s previous authority.
Both the Federal Contract Compliance Manual (FCCM) – which spells out the parameters of the OFCCP’s enforcement responsibilities – and a previous memo of understanding between the OFCCP and the EEOC state that the OFCCP generally will refer individual employment discrimination complaints made against government contractors to the EEOC for investigation, retaining only class and systemic discrimination complaints.
However, EO 13672 gives specific authority to the OFCCP to assure that federal contractors do not discriminate against employees because of sexual orientation or gender identity. While the OFCCP has agreed to continue to coordinate and share information with the EEOC regarding such complaints, it is clear that the OFCCP now considers itself to be the primary enforcement agency for sexual orientation or gender identity complaints against governmental contractors.
Employers who are, have been, or are considering becoming government contractors must be aware of this expansion of anti-discrimination law applicable to their company. In addition, all employers should become knowledgeable about the expanding number of state-based anti-discrimination laws related to sexual orientation and gender identity, and should work to remain in compliance with those laws.