As you may recall, last July, President Obama signed an Executive Order prohibiting federal contractors and subcontractors from discriminating on the basis of sexual orientation and gender identity. While many large federal contractors already ban sexual orientation and gender identity discrimination (as well as a number of states and municipalities), there is no Pennsylvania or federal law broadly prohibiting discrimination based on sexual orientation or gender identity in the workplace.

Over the past year the Office of Federal Contract Compliance Programs (OFCCP) has drafted and adopted rules implementing the President’s Executive Order. Those rules became effective on April 8, 2015. So what steps should federal contractors and subcontractors take to ensure they comply with these new regulations? While the new regulations only apply to contracts entered into or modified after April 8, here are a few proactive steps federal contractors can take to ensure future compliance:

a) Make sure that sexual orientation and gender identity are included in your non-discrimination policies and polices against discriminatory harassment

b) Update the Equal Opportunity Clause on your website, job applications, and in job advertisements to make clear that your company prohibits discrimination based on gender identity and sexual orientation.

c) Ensure that your future Affirmative Action Plans indicate the Company will treat all applicants and employees the same regardless of their sexual orientation and gender identity.

d) Update your “EEO is the Law” poster when the EEOC releases a revised poster in the near future (but don’t hold your breath–they have been promising employers a new poster for over a year now!)

Unlike regulations governing minorities, women, protected veterans, and individuals with disabilities, these new regulations do not require contractors to conduct a data analysis related to the sexual orientation or gender identity of applicants or employees—nor is there any requirement that contractors ask employees and applicants to self identify their sexual orientation or gender identity.

Interestingly, an OFCCP FAQ states that contractors are required to “ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.”

Questions? Feel free to e-mail or call.