[Federal Register Volume 80, Number 20 (Friday, January 30, 2015)]
[Proposed Rules]
[Pages 5246-5279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-01422]



[[Page 5245]]

Vol. 80

Friday,

No. 20

January 30, 2015

Part III





Department of Labor





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 Office of Federal Contract Compliance Programs





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41 CFR Part 60-20





Discrimination on the Basis of Sex; Proposed Rule

  Federal Register / Vol. 80 , No. 20 / Friday, January 30, 2015 / 
Proposed Rules  

[[Page 5246]]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Part 60-20

[01 14 15 OFCCP]
RIN 1250-AA05


Discrimination on the Basis of Sex

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Department of Labor's (``DOL'') Office of Federal 
Contract Compliance Programs (``OFCCP'') is proposing regulations that 
would set forth requirements that covered Federal Government 
contractors and subcontractors and federally assisted construction 
contractors and subcontractors must meet in fulfilling their 
obligations under Executive Order 11246, as amended, to ensure 
nondiscrimination in employment on the basis of sex and to take 
affirmative action to ensure that applicants are employed, and that 
employees are treated during employment, without regard to their sex. 
This proposal would substantially revise the existing Sex 
Discrimination Guidelines, which have not been substantively updated 
since 1970, and replace them with regulations that align with current 
law and legal principles and address their application to current 
workplace practices and issues. Most of the proposed provisions in this 
NPRM would clarify well-established case law or applicable requirements 
from other Federal agencies and therefore would not change existing 
requirements for entities affected by this rule. The NPRM's approach 
with respect to pregnancy accommodation is consistent with the 
interpretation of the Pregnancy Discrimination Act adopted by the Equal 
Employment Opportunity Commission (EEOC) and by the Government in Young 
v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. 
granted (U.S. No. 12-1226, July 1, 2014).

DATES: To be assured of consideration, comments must be received on or 
before March 31, 2015.

ADDRESSES: You may submit comments, identified by RIN number 1250-AA05, 
by any of the following methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Fax: (202) 693-1304 (for comments of six pages or less).
     Mail: Debra A. Carr, Director, Division of Policy, 
Planning, and Program Development, Office of Federal Contract 
Compliance Programs, Room C-3325, 200 Constitution Avenue NW., 
Washington, DC 20210.
    Receipt of submissions will not be acknowledged; however, the 
sender may request confirmation that a submission has been received by 
telephoning OFCCP at (202) 693-0104 (voice) or (202) 693-1337 (TTY) 
(these are not toll-free numbers).
    All comments received, including any personal information provided, 
will be available for public inspection during normal business hours at 
Room C-3325, 200 Constitution Avenue NW., Washington, DC 20210, or via 
the Internet at http://www.regulations.gov. Upon request, individuals 
who require assistance to review comments will be provided with 
appropriate aids such as readers or print magnifiers. Copies of this 
Notice of Proposed Rulemaking (NPRM) will be made available in the 
following formats: Large print, electronic file on computer disk, and 
audiotape. To schedule an appointment to review the comments and/or to 
obtain this NPRM in an alternate format, please contact OFCCP at the 
telephone numbers or address listed above.

FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of 
Policy, Planning and Program Development, Office of Federal Contract 
Compliance Programs, 200 Constitution Avenue NW., Room C-3325, 
Washington, DC 20210. Telephone: (202) 693-0104 (voice) or (202) 693-
1337 (TTY).

SUPPLEMENTARY INFORMATION: 

Executive Summary

Purpose of the Regulatory Action

    The U.S. Department of Labor's (``DOL'') Office of Federal Contract 
Compliance Programs (``OFCCP'') is proposing regulations that would set 
forth requirements that covered \1\ Federal Government contractors and 
subcontractors and federally assisted construction contractors and 
subcontractors must meet in fulfilling their obligations under 
Executive Order 11246, as amended, to ensure nondiscrimination in 
employment on the basis of sex and to take affirmative action to ensure 
that applicants are employed, and that employees are treated during 
employment, without regard to their sex. The OFCCP is charged with 
enforcing Executive Order 11246, as amended (``Executive Order''), 
which prohibits covered Federal Government contractors and 
subcontractors and federally assisted construction contractors and 
subcontractors (``contractors'') from discriminating in employment on 
the basis of race, color, religion, sex, sexual orientation, gender 
identity, or national origin.\2\ The Executive Order also requires 
contractors to ensure equal employment opportunity for employees and 
applicants for employment without regard to race, color, religion, sex, 
sexual orientation, gender identity, or national origin and to take 
affirmative action to ensure that applicants are employed, and that 
employees are treated during employment, without regard to the 
enumerated bases. OFCCP interprets the nondiscrimination provisions of 
the Executive Order consistent with the principles of title VII of the 
Civil Rights Act of 1964 (``title VII''),\3\ which is enforced, in 
large part, by the Equal Employment Opportunity Commission (``EEOC''), 
the agency responsible for coordinating the Federal government's 
enforcement of all Federal statutes, Executive Orders, regulations, and 
policies requiring equal employment opportunity.\4\
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    \1\ 41 CFR 60-1.5 exempts certain Federal and federally assisted 
contractors and subcontractors from coverage. That section exempts 
contracts and subcontracts not exceeding $10,000 (Sec.  60-
1.5(a)(1)); certain contracts and subcontracts for indefinite 
quantities (Sec.  60-1.5(a)(2)); work performed outside the United 
States by employees who were not recruited within the United States 
(Sec.  60-1.5(a)(3)); contracts with certain religious entities and 
educational institutions (Sec.  60-1.5(a)(5) and (6)); specific 
contracts and facilities exempted by the Director of the OFCCP when 
required by ``special circumstances in the national interest'' 
(Sec.  60-1.5(b)(1)) or because they are ``separate and distinct 
from activities . . . related to the performance of the contract or 
subcontract'' (Sec.  60-1.5(b)(2); and contracts determined to be 
essential to the national security (Sec.  60-1.5(c)).
    \2\ Executive Order 13672, issued on July 21, 2014, added sexual 
orientation and gender identity to Executive Order 11246 as 
prohibited bases of discrimination. It applies to contracts entered 
into on or after April 8, 2015, the effective date of the 
implementing regulations promulgated thereunder.
    \3\ Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-
2000e-17; U.S. Department of Labor, Office of Federal Contract 
Compliance Programs, Federal Contract Compliance Manual, ch. 2, 
Sec.  2H01(c), available at http://www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf (last accessed June 6, 2014) 
(hereinafter FCCM).
    \4\ Executive Order 12067, 43 FR 28967, 3 CFR, 1978 Comp., p. 
206. The U.S. Department of Justice also enforces portions of title 
VII, as do state Fair Employment Practice Agencies (FEPA).
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    The Sex Discrimination Guidelines at 41 CFR part 60-20 
(``Guidelines'') set forth interpretations and guidelines for 
implementing the Executive Order's nondiscrimination and affirmative 
action requirements related to sex. These Guidelines have not been 
substantively updated since they were

[[Page 5247]]

first promulgated in 1970,\5\ and fail to conform to or reflect current 
title VII jurisprudence or to address the needs and realities of the 
modern workplace. Since 1970, there have been historic changes to sex 
discrimination law, in both statutory and case law, and to contractor 
policies and practices as a result of the nature and extent of women's 
participation in the labor force. Because the existing guidelines are 
so outdated, they may cause some Federal contractors to incur 
unnecessary legal and/or management expenses to resolve confusion about 
possibly conflicting obligations; updating the regulations will reduce 
the costs that such contractors may now incur.
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    \5\ 35 FR 8888, June 9, 1970. The Guidelines were reissued in 
1978 without substantive amendment. 43 FR 49258, October 20, 1978.
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    It is long overdue for part 60-20 to be updated. Consequently, 
OFCCP proposes in this NPRM to revise the Sex Discrimination Guidelines 
to align the sex discrimination standards under Executive Order 11246 
with developments and interpretations of existing title VII principles 
and OFCCP's corresponding interpretation of the Executive Order.

Statement of Legal Authority

    Issued in 1965, and amended several times in the intervening 
years--including once in 1967, to add sex as a prohibited basis of 
discrimination, and most recently in 2014, to add sexual orientation 
and gender identity to the list of protected bases \6\--Executive Order 
11246 has two purposes. First, it prohibits covered Federal contractors 
and subcontractors from discriminating against employees and applicants 
because of race, color, religion, sex, sexual orientation, gender 
identity, or national origin. Second, it requires covered Federal 
contractors and subcontractors to take affirmative action to ensure 
that applicants are employed, and that employees are treated during 
employment, without regard to their race, color, religion, sex, sexual 
orientation, gender identity, or national origin. The nondiscrimination 
and affirmative action obligations of Federal contractors and 
subcontractors cover all aspects of employment.
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    \6\ Executive Order 13672, 79 FR 42971 (July 23, 2014).
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    The requirements of the Executive Order promote the goals of 
economy and efficiency in Government contracting, and the link between 
them is well established. See, e.g, Executive Order 10925, 26 FR 1977 
(March 8, 1961) (nondiscrimination and affirmative employment programs 
ensure ``the most efficient and effective utilization of all available 
manpower''). Executive Order 11246 regulations require government 
contractors to conduct outreach to broaden the qualified applicant 
pool; to identify and eliminate any discriminatory practices; to apply 
merit principles; to choose applicants for employment without regard to 
race, sex, or national origin; and to report their results. See, e.g., 
41 CFR 60-2.10, 60-2.11, 60-2.14, 60-2.16, 60-2.17, 60-20.6. The sex 
discrimination regulations proposed herein outline the sex-
discriminatory practices that contractors must identify and eliminate, 
and clarify how contractors must choose applicants for employment 
without regard to sex. See, e.g., proposed Sec.  60-20.2 (clarifying 
that sex discrimination includes discrimination on the bases of 
pregnancy, childbirth, related medical conditions, gender identity, and 
transgender status, and that disparate treatment and disparate impact 
analyses apply to sex discrimination); Sec.  60-20.3 (clarifying 
application of the bona fide occupational qualification (BFOQ) defense 
to the rule against sex discrimination); Sec.  60-20.4, Sec.  60-20.5, 
Sec.  60-20.6, and Sec.  60-20.8 (clarifying that discrimination in 
compensation; discrimination based on pregnancy, childbirth, or related 
medical conditions; discrimination in other fringe benefits; and sexual 
harassment, respectively, can be unlawful sex-discriminatory 
practices); and Sec.  60-20.7(c) (clarifying that contractors must not 
choose applicants based on sex stereotypes such as ``a sex-based 
assumption that [a female employee] . . . will have . . . family 
caretaking responsibilities [that] will interfere with her work 
performance'').
    Each of these requirements ultimately reduces the government's 
costs and increases the efficiency of its operations by ensuring that 
all employees and applicants, including women, are fairly considered 
and that, in its procurement, the government has access to, and 
ultimately benefits from, the best qualified and most efficient 
employees. Cf. Contractors Ass'n of E. Pa. v. Sec'y of Labor, 442 F.2d 
159, 170 (3d Cir. 1971) (``[I]t is in the interest of the United States 
in all procurement to see that its suppliers are not over the long run 
increasing its costs and delaying its programs by excluding from the 
labor pool available minority workmen.''). The proposed regulations' 
requirements to eliminate discrimination and to choose applicants 
without regard to sex also are consistent with the purposes of Title 
VII to eliminate discrimination in employment.
    The requirements in Executive Order 11246 generally apply to any 
business or organization that (1) holds a single Federal contract, 
subcontract, or federally assisted construction contract in excess of 
$10,000; (2) has Federal contracts or subcontracts that, combined, 
total in excess of $10,000 in any 12-month period; or (3) holds 
Government bills of lading, serves as a depository of Federal funds, or 
is an issuing and paying agency for U.S. savings bonds and notes in any 
amount.
    Pursuant to Executive Order 11246, receiving a Federal contract 
comes with a number of responsibilities. Section 202 of this Executive 
Order requires every covered contractor to agree to comply with all 
provisions of the Executive Order and the rules, regulations, and 
relevant orders of the Secretary of Labor. A contractor in violation of 
Executive Order 11246 may be subject to suit for make-whole and 
injunctive relief and to having its contracts canceled, terminated, or 
suspended or to debarment after the opportunity for a hearing.\7\
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    \7\ Executive Order 11246, Sec.  209(5); 41 CFR 60-1.27.
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Major Proposed Revisions

    For the reasons stated above, OFCCP proposes to revise the 
Guidelines at part 60-20 to create new sex discrimination regulations 
that set forth Federal contractors' obligations under Executive Order 
11246, in accordance with existing law and policy. This proposal 
updates the Guidelines to address current issues in the workplace, and 
clarifies existing title VII law as it relates to sex discrimination, 
including developments and interpretations of existing law by the EEOC 
and OFCCP's corresponding interpretation of the Executive Order. It is 
intended to state clearly the existing principles applicable to a 
contractor's obligation to refrain from discrimination in its 
employment policies and practices because of sex and to ensure equal 
employment opportunity on the basis of sex.
    The proposal removes a number of outdated provisions in the current 
Guidelines; restates, reorganizes, and clarifies others; and adds new 
ones that address legal developments that have arisen since 1970. Where 
current provisions of the Guidelines are uncontradicted by the proposed 
part 60-20, but are omitted because they are, as a practical matter, 
outdated, their omission does not mean that they are not still good 
law. For example, paragraph 60-20.2(b) currently states that 
``[a]dvertisement in newspapers

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and other media for employment must not express a sex preference unless 
sex is a bona fide occupational qualification for the job.'' This is a 
correct statement of the law, but does not have much practical effect, 
because few job advertisements today express a sex preference.\8\ OFCCP 
seeks comments on whether any of the provisions proposed for deletion 
continue to be useful.
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    \8\ Recruitment for individuals of a certain sex for particular 
jobs, including recruitment by advertisement, is covered in proposed 
Sec.  60-20.2(g).
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    The proposed amendments to part 60-20 offered herein do not in any 
way alter a contractor's obligations under all other OFCCP regulations. 
In particular, a contractor's obligations to ensure equal employment 
opportunity and to take affirmative action, as set forth in parts 60-1, 
60-2, 60-3, and 60-4 of this title, remain in effect. Similarly, 
inclusion of a provision in part 60-20 does not in any way alter a 
contractor's obligations to ensure nondiscrimination on the basis of 
race, color, religion, national origin, sexual orientation, and gender 
identity, under the Executive Order; on the basis of disability under 
Section 503 of the Rehabilitation Act of 1973 (``Section 503''); \9\ or 
on the basis of protected veteran status under 38 U.S.C. 4212 of the 
Vietnam Era Veterans' Readjustment Assistance Act.\10\
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    \9\ 29 U.S.C. 793.
    \10\ 38 U.S.C. 4212.
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Benefits of the Proposed Rule

    The proposed rule would benefit both Federal contractors and their 
employees in several ways. First, by consolidating, updating, and 
clearly and accurately stating the existing principles of applicable 
law, including developments and interpretations of existing law by the 
EEOC and OFCCP's corresponding interpretation of the Executive Order, 
the proposed rule will facilitate contractor understanding and 
compliance and thus reduce contractor costs. As discussed above, the 
existing guidelines are extremely outdated and therefore do not provide 
sufficient or even accurate guidance to contractors regarding their 
nondiscrimination obligations. In fact, because OFCCP's interpretations 
of a contractor's nondiscrimination mandate on the basis of sex follow 
title VII principles, OFCCP no longer enforces part 60-20 to the extent 
that it departs from existing law. Maintenance of these outdated and 
inaccurate guidelines in the regulations may cause Federal contractors 
to incur unnecessary legal and/or management expenses to resolve 
confusion about possibly conflicting obligations. Thus, the NPRM will 
directly reduce the costs that some contractors may now incur when 
attempting to comply with part 60-20. OFCCP requests comment on the 
amount of cost savings covered entities may realize because of this 
rule.
    The NPRM would also benefit the employees and job applicants of 
Federal contractors and subcontractors. In general, by making it easier 
for Federal contractors to comply with the law, this regulation would 
increase equality of employment opportunity for the millions of women 
working for Federal contractor establishments. Sixty-five million 
employees work for the Federal contractors and other recipients of 
Federal monies that are included in the General Service 
Administration's System for Award Management (SAM) database.\11\ Based 
on Bureau of Labor Statistics data showing that 47 percent of the 
workforce is female,\12\ OFCCP estimates that 30.6 million of the 
employees who work for the Federal contractors and other recipients of 
Federal monies are women.
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    \11\ U.S. General Services Administration, System for Award 
Management, Legacy CCR Extracts Public (``FOIA'') Data Package, May 
2014, available at https://www.sam.gov/portal/public/SAM/ (last 
accessed June 14, 2014).
    \12\ Women in the Labor Force: A Databook 2, BLS Reports, 
available at http://www.bls.gov/cps/wlf-databook-2012.pdf (last 
accessed Oct. 6, 2014) [hereinafter Women in the Labor Force].
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    More specifically, the NPRM would advance the employment status of 
female employees of Federal contractors in several ways. First, it 
would address both quid pro quo and hostile-environment sexual 
harassment. Second, it would clarify that adverse treatment of an 
employee because of gender-stereotyped assumptions about family 
caretaking responsibilities is discrimination. It would clarify that 
childcare leave must be available to fathers on the same terms as they 
are to mothers. It would also confirm the requirement that contractors 
provide equal retirement benefits to male and female employees, even if 
doing so costs more for one sex than the other.
    In addition, by clarifying when pregnant workers are entitled to 
workplace accommodations, this rulemaking will protect pregnant 
employees who work for Federal contractors from losing their jobs, 
wages, and health care coverage. OFCCP estimates that 2,046,850 women 
in the Federal contractor workforce are likely to become pregnant each 
year. Moreover, by clarifying that discrimination against an individual 
because of her or his gender identity is unlawful sex discrimination, 
the NPRM would ensure that contractors are aware of their 
nondiscrimination obligations with respect to transgender employees and 
would assure equality of opportunity for transgender employees, the 
vast majority of whom report that they have experienced discrimination 
in the workplace.\13\
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    \13\ Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, National 
Center for Transgender Equality & National Gay and Lesbian Task 
Force, Injustice at Every Turn: A Report of the National Transgender 
Discrimination Survey, (2011), available at http://transequality.org/PDFs/Executive_Summary.pdf (last accessed Oct. 3, 
2014) [hereinafter Injustice at Every Turn].
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    Finally, the NPRM would benefit public understanding of the law. 
Removing an ``outmoded'' and ``ineffective'' rule from the Code of 
Federal Regulations is in the public interest. This public interest is 
reflected in Section 6 of Executive Order 13563, which requires 
agencies to engage in retrospective analyses of their rules ``and to 
modify, streamline, expand, or repeal [such rules] in accordance with 
what has been learned.''

Costs of the Proposed Rule

    A detailed discussion of the costs of the proposed rule is included 
in the section on Regulatory Procedures, infra. In sum, the proposed 
rule should create relatively minimal administrative and other cost 
burdens for contractors.
    The only new administrative burden the proposed rule would create 
for contractors would be the one-time cost of regulatory 
familiarization--the estimated time it takes for contractors to review 
and understand the instructions for compliance--calculated at just 
under $26 million, or $52 per contractor company, the first year.
    The only other new cost burden this rule would create for 
contractors would be the cost of pregnancy accommodations, which OFCCP 
calculates to be under $10 million annually, or $19 per contractor 
company, per year.\14\
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    \14\ OFCCP estimates approximately 2,046,850 women in the 
Federal contractor workforce would be pregnant in a year, of whom 21 
percent work in job categories likely to require accommodations that 
might involve more than a de minimis cost. Because the incidence of 
medical conditions during pregnancy that require accommodations 
ranges from 0.5 percent (placenta previa) to 50 percent (back 
issues), OFCCP estimates that of the women in positions that require 
physical exertion or standing, half may require some type of an 
accommodation or light duty. Based on a study finding that the 
employers of 91 percent of pregnant women who needed and requested a 
change in duties such as less lifting or more sitting attempted to 
address their needs, the proposed rule would require covered 
contractors to accommodate the nine percent of women whose needs 
were not addressed or would not have been addressed had they 
requested accommodation. According to the Job Accommodation Network, 
the average cost of an accommodation is $500. Therefore, OFCCP 
estimates that the cost would be $9,671,000 (2,046,850 x 21% x 50% x 
9% x $500).

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    Together, these costs amount to under $36 million, or $71 per 
contractor company, the first year; and under $10 million, or $19 per 
contractor company, each subsequent year.

Reasons for Amending the Current Sex Discrimination Guidelines, 41 CFR 
60-20

    The existing statement of the purpose of the current Guidelines 
demonstrates their outdated nature. As the ``title and purpose'' 
section of current part 60-20 states, the Guidelines were first adopted 
because sex discrimination was perceived as presenting ``special 
problems [of] implementation'' that required ``a definitive treatment 
beyond the terms of the [executive] order itself.'' 41 CFR 60-20.1. 
Five sections, covering ``recruitment and advertisement,'' ``job 
policies and practices,'' ``seniority system,'' ``discriminatory 
wages,'' and ``affirmative actions,'' currently follow Sec.  60-20.1.
    Since the Guidelines were promulgated in 1970, there have been 
dramatic changes in women's participation in the workforce. Between 
1970 and December 2013, women's participation in the labor force grew 
from 43 percent to 57 percent.\15\ This included a marked increase in 
employment of mothers: The labor force participation of women with 
children under the age of 18 increased from 47 percent in 1975 to 70 
percent in 2013.\16\ In 2013, both adults worked at least part time in 
59 percent of married-couple families with children under 18, and 73 
percent of mothers heading single-parent families with children under 
18 worked at least part time.\17\
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    \15\ U.S. Census Bureau, Civilian Population--Employment Status 
by Sex, Race, and Ethnicity: 1970-2009, The 2012 Statistical 
Abstract, available at http://www.census.gov/compendia/statab/2012/tables/12s0588.pdf (last accessed Oct. 31, 2014); Bureau of Labor 
Statistics, U.S. Department of Labor Statistics, Data Retrieval: 
Labor Force Statistics (Current Population Survey, Household Data, 
Table A-1, Employment status of the civilian population by sex and 
age, available at http://www.bls.gov/webapps/legacy/cpsatab1.htm 
(last accessed Oct. 3, 2014).
    \16\ Bureau of Labor Statistics, U.S. Department of Labor, TED: 
The Economics Daily, Labor force participation rates among mothers,, 
available at http://www.bls.gov/opub/ted/2010/ted_20100507_data.htm 
(last accessed Oct. 3, 2014) [hereinafter Labor Force Participation: 
Mothers--2010]; Press Release, Bureau of Labor Statistics, U.S. 
Department of Labor, Employment Characteristics of Families--2013 
(April 25, 2014), available at http://www.bls.gov/news.release/famee.nr0.htm (last accessed Nov. 5, 2014) [hereinafter Employment 
Characteristics of Families--2013].
    \17\ Employment Characteristics of Families--2013, supra note 
16.
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    Since 1970, there have also been extensive changes in the law 
regarding sex-based employment discrimination and in contractors' 
policies and practices governing workers. For example:
     Title VII, which generally governs the law of sex-based 
employment discrimination, has been significantly amended four times: 
Once in 1972, by the Equal Employment Opportunity Act; \18\ once in 
1978, by the Pregnancy Discrimination Act (``PDA''); \19\ once in 1991, 
by the Civil Rights Act; \20\ and finally in 2009, by the Lilly 
Ledbetter Act.\21\
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    \18\ Equal Employment Opportunity Act of 1972, Public Law 92-
261, 86 Stat. 103 (1972).
    \19\ Amendment to Title VII of the Civil Rights Act of 1964 to 
Prohibit Sex Discrimination on the Basis of Pregnancy, Public Law 
95-555, 995, 92 Stat. 2076 (1978).
    \20\ Civil Rights Act of 1991, Public Law 102-166, 1745, 105 
Stat. 1071 (1991).
    \21\ Lilly Ledbetter Fair Pay Act of 2009, Public Law 111-2, 123 
Stat. 5 (2009).
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     State ``protective laws'' that had explicitly barred women 
from certain occupations or otherwise restricted their employment 
conditions on the basis of sex have been repealed or are 
unenforceable.\22\
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    \22\ See, e.g., Conn. Gen. Stat. Sec.  31-18 (repealed 1973) 
(prohibition of employment of women for more than nine hours a day 
in specified establishments); Mass. Gen. Laws ch. 345 (1911) 
(repealed 1974) (outright prohibition of employment of women before 
and after childbirth); Ohio Rev. Code Ann. Sec.  4107.43 (repealed 
1982) (prohibition of employment of women in specific occupations 
that require the routine lifting of more than 25 pounds); see also 
Nashville Gas Co. v. Satty, 434 U.S. 136, 142 (1977) (invalidating 
public employer requirement that pregnant employees take a leave of 
absence during which they did not receive sick pay and lost job 
seniority); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) 
(striking rules requiring leave from after the fifth month of 
pregnancy until three months after birth); Somers v. Aldine Indep. 
Sch. Dist., 464 F. Supp. 900 (S.D. Tex. 1979) (finding sex 
discrimination where school district terminated teacher for not 
complying with requirement that pregnant women take an unpaid leave 
of absence in their third month or be terminated).
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     In 1993, the Family and Medical Leave Act (``FMLA'') \23\ 
was enacted, requiring employers of 50 or more employees to provide a 
minimum of 12 weeks of annual, unpaid, job-guaranteed leave to both 
male and female employees to recover from their own serious health 
conditions (including pregnancy, childbirth, or related medical 
conditions), to care for a newborn or newly adopted or foster child, or 
to care for a child, spouse, or parent with a serious health condition.
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    \23\ 29 U.S.C. 2601 et seq.
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     In 1970 it was not uncommon for employers to require 
female employees to retire at earlier ages than their male 
counterparts. However, the Age Discrimination in Employment Act was 
amended in 1986 to abolish mandatory retirement for all employees with 
a few exceptions.\24\
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    \24\ 29 U.S.C. 621-634.
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    Moreover, since 1970 the Supreme Court has determined that numerous 
practices which were not then widely recognized as discriminatory 
constitute unlawful sex discrimination under title VII. See e.g., City 
of Los Angeles v. Manhart, 435 U.S. 702 (1978) (requiring equal 
retirement benefits for women and men, despite statistical differences 
in longevity); County of Washington v. Gunther, 452 U.S. 161 (1981) 
(holding that compensation discrimination is not limited to unequal pay 
for equal work within the meaning of the Equal Pay Act); Newport News 
Shipping & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (holding that 
employer discriminated on the basis of sex by excluding pregnancy-
related hospitalization coverage for the spouses of male employees 
while providing complete hospitalization coverage for the spouses of 
female employees); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) 
(recognizing cause of action for sexually hostile work environment); 
California Federal S. & L. Assn. v. Guerra, 479 U.S. 272 (1987) 
(upholding California law requiring up to four months leave and 
reinstatement to pregnant employees and finding law not inconsistent 
with title VII); Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) 
(finding sex discrimination on basis of sex stereotyping); Oncale v. 
Sundowner Offshore Servs., 523 U.S. 75, 78 (1998) (recognizing cause of 
action for ``same sex'' harassment); Int'l Union, United Auto., 
Aerospace and Agr. Implement. Workers of Am. v. Johnson Controls, Inc., 
499 U.S. 187 (1991) (holding that possible reproductive health hazards 
to women of childbearing age did not justify sex-based exclusions from 
certain jobs); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 
(1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 
(holding employers vicariously liable under title VII for the harassing 
activity of supervisors who create hostile working conditions for those 
over whom they have authority); and Burlington N. & Santa Fe Railway 
Co. v. White, 548 U.S. 53 (2006) (clarifying broad scope of prohibition 
of retaliation for filing of charge of sex discrimination).
    In response to these legal and economic changes, employment 
policies and practices have also changed. Contractors rarely adopt or 
implement explicit rules that prohibit hiring of women for certain 
jobs; and jobs are no longer advertised in sex-segregated newspaper 
columns. Women have made major inroads into professions and

[[Page 5250]]

occupations traditionally dominated by men. For example, women's 
representation among doctors tripled, from nearly 12 percent in 1980 
\25\ to 36 percent in 2013.\26\ Executive suites are no longer 
predominantly segregated by sex, with the executive positions all being 
occupied by men and women functioning as secretaries. Indeed, in many 
companies, it is hardly surprising for women to be in positions of 
considerable power and status. Moreover, the female-to-male earnings 
ratio for women and men working full-time, year-round in all 
occupations increased from 59 percent in 1970 to 78 percent in 
2013.\27\
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    \25\ American Medical Association, Women in Medicine: An AMA 
Timeline 4, available at https://download.ama-assn.org/resources/doc/wps/x-pub/wimtimeline.pdf (last accessed May 13, 2014).
    \26\ Bureau of Labor Statistics, U.S. Department of Labor, Labor 
Force Statistics from the Current Population Survey, Table 11, 
Employed persons by detailed occupation, sex, race, and Hispanic or 
Latino ethnicity, Household Data Annual Averages, available at 
http://www.bls.gov/cps/cpsaat11.htm (last accessed June 5, 2014) 
[hereinafter BLS Labor Force Statistics 2013].
    \27\ U.S. Census Bureau, Income and Poverty in the United 
States: 2013, Current Population Reports 10 (2014), Table A-4, 
Number and real median earnings of total workers and full-time, 
year-round workers by sex and female-to-male earnings ratio: 1960-
2013, available at http://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf (last accessed Nov. 2, 2014).
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    In addition, employer-provided insurance policies that explicitly 
provide lower-value or otherwise less comprehensive hospitalization or 
disability benefits for childbirth than for other medical conditions 
are unlawful for employers of 15 or more employees.\28\ Generous leave 
and other family-friendly policies are increasingly common. As early as 
2000, even employers that were not covered by the FMLA routinely 
extended leave to their employees for FMLA-covered reasons: Two-thirds 
of such employers provided leave for an employee's own serious health 
condition and for pregnancy-related disabilities, and half extended 
leave to care for a newborn child.\29\ Eleven percent of employees have 
access to paid family leave, and most employees receive some pay during 
family and medical leave due to paid vacation, sick, or personal leave 
or temporary disability insurance.\30\
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    \28\ These practices, common before the PDA, were prohibited 
when that law became effective as to fringe benefits in 1979. As the 
EEOC explained in guidance on the PDA issued in 1979--
    A woman unable to work for pregnancy-related reasons is entitled 
to disability benefits or sick leave on the same basis as employees 
unable to work for other medical reasons. Also, any health insurance 
provided must cover expenses for pregnancy-related conditions on the 
same basis as expenses for other medical conditions.
    Appendix to Part 1604--Questions and Answers on the Pregnancy 
Discrimination Act, 44 FR 23805 (Apr. 20, 1979), 29 CFR part 1604. 
EEOC's recently issued guidance echoes this earlier interpretation 
and discusses recent developments on benefits issues affecting PDA 
compliance. U.S. Equal Opportunity Commission, Enforcement Guidance: 
Pregnancy Discrimination and Related Issues I.C.2-4 (July 14, 2014), 
available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last accessed Oct. 3, 2014). OFCCP welcomes 
comments on the extent to which contractor-provided health insurance 
plans comply with the PDA.
    \29\ U.S. Department of Labor, Wage and Hour Division, The 2000 
Survey Report ch. 5, Table 5-1. Family and Medical Leave Policies by 
FMLA Coverage Status, 2000 Survey Report available at http://www.dol.gov/whd/fmla/chapter5.htm#5.1.1 (last accessed May 13, 
2014).
    \30\ Robert Van Giezen, Paid Leave in Private Industry over the 
Past 20 Years, Bureau of Labor Statistics, U.S. Department of Labor, 
Beyond the Numbers: Pay & Benefits Aug. 2013, available at http://www.bls.gov/opub/btn/volume-2/paid-leave-in-private-industry-over-the-past-20-years.htm (last accessed Oct. 3, 2014). In addition, 
most employees taking family or medical leave had some access to 
paid leave: ``48% report[ed] receiving full pay and another 17% 
receive[d] partial pay, usually but not exclusively through regular 
paid vacation leave, sick leave, or other `paid time off' hours.'' 
Jacob Klerman, Kelly Daley, & Alyssa Pozniak, Family and Medical 
Leave in 2012: Executive Summary ii, http://www.dol.gov/asp/evaluation/fmla/FMLA-2012-Executive-Summary.pdf (last accessed Oct. 
3, 2014).
---------------------------------------------------------------------------

    While these changes in policies and practices show a measure of 
progress, there is no doubt that sex discrimination remains a 
significant and pervasive problem. Indeed, the percentage of total 
annual EEOC charges that allege sex discrimination has remained nearly 
constant at around 30 percent since at least 1997.\31\
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    \31\ This rate has varied from a low of 28.5 percent in FY 2011 
to a high of 31.5 percent in FY 2000. U.S. Equal Employment 
Opportunity Commission, Enforcement and Litigation Statistics, 
Charge Statistics: FY 1997 Through FY 2013, available at http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last accessed Nov. 
2, 2014). In FY 2013, the EEOC received 27,687 charges alleging sex 
discrimination.
---------------------------------------------------------------------------

    Additionally, occupational sex segregation remains widespread:

    In 2012, nontraditional occupations for women employed only six 
percent of all women, but 44 percent of all men. The same imbalance 
holds for occupations that are nontraditional for men; these employ 
only 5 percent of men, but 40 percent of women. Gender segregation 
is also substantial in terms of the broad sectors where men and 
women work: Three in four workers in education and health services 
are women, nine in ten workers in the construction industry and 
seven in ten workers in manufacturing are men.\32\
---------------------------------------------------------------------------

    \32\ Ariane Hegewisch & Heidi Hartmann, Institute for Women's 
Policy Research, Occupational Segregation and the Gender Wage Gap: A 
Job Half Done (2014), available at http://www.iwpr.org/publications/pubs/occupational-segregation-and-the-gender-wage-gap-a-job-half-done (last accessed Oct. 3, 2014) (citations omitted); see also 
Ariane Hegewisch et al., The Gender Wage Gap by Occupation, Fact 
Sheet #C350a, The Institute for Women's Policy Research, available 
at http://www.iwpr.org/publications/pubs/the-gender-wage-gap-by-occupation-2/at_download/file/ (last accessed Oct. 3, 2014) 
[hereinafter IWPR Wage Gap By Occupation].

    Likewise, women continue to be underrepresented in higher level or 
more senior jobs within occupations. For example, in 2013, women were 
represented in only 38 percent of all manager positions.\33\ Women also 
accounted for only 27 percent of chief executive officer positions.\34\
---------------------------------------------------------------------------

    \33\ BLS Labor Force Statistics 2013, supra note 26.
    \34\ Id.
---------------------------------------------------------------------------

    As mentioned above, in 2013, women working full time earned 78 
cents on the dollar compared with men, measured on the basis of median 
annual earnings.\35\ While this represents real progress, and 
discrimination may not be the cause of the entire gap, more than fifty 
years after passage of the Equal Pay Act, the size of the gap is still 
unacceptable. At the current rate of progress, researchers estimate it 
will take until 2057 to close the gender pay gap.\36\
---------------------------------------------------------------------------

    \35\ U.S. Census Bureau, Income and Poverty in the United 
States: 2013, Current Population Reports 10 (2014), available at 
http://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf (last accessed Nov. 2, 2014).
    \36\ Institute for Women's Policy Research, At Current Pace of 
Progress, Wage Gap for Women Expected to Close in 2057 (April 2013), 
available at http://www.iwpr.org/publications/pubs/at-currentpace-of-progress-wage-gap-for-women-expected-toclose-in-2057.
---------------------------------------------------------------------------

    The wage gap is also greater for women of color and women with 
disabilities. When measured by median full-time weekly earnings, in 
2013 African-American women made approximately 69 cents and Latinas 
made approximately 61 cents for every dollar earned by a non-Hispanic, 
white man.\37\ In 2013, median annual earnings for women with 
disabilities were only 47 percent of median annual earnings for men 
without disabilities.\38\ Moreover, it appears that the narrowing of 
the pay gap has slowed since the 1990's.\39\
---------------------------------------------------------------------------

    \37\ Bureau of Labor Statistics, U.S. Department of Labor, 
Household Data, Annual Averages, Table 37. ``Median Weekly Earnings 
of Full-Time Wage and Salary Workers By Selected Characteristics'' 
available at http://www.bls.gov/cps/cpsaat37.pdf (last accessed Oct. 
6, 2014).
    \38\ Calculation from U.S. Census Bureau, American Fact Finder, 
``Median earnings in the past 12 months (in 2013 inflation-adjusted 
dollars) by disability status by sex for the civilian 
noninstitutionalized population 16 years and over with earnings,'' 
available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_13_1YR_B18140&prodType=table (last 
accessed Nov. 6, 2014).
    \39\ From 1980 to 1989, the percentage of women's earnings 
relative to men's increased from 60.2% to 66.0%; from 1990 to 1999, 
the percentage increased from 71.6% to just 72.2%. U.S. Census 
Bureau, Historical Income Tables: People, Table P-40: Women's 
Earnings as a Percentage of Men's Earnings by Race and Hispanic 
Origin, available at https://www.census.gov/hhes/www/income/data/historical/people/ (last accessed Nov. 2, 2014). See also Youngjoo 
Cha & Kim A Weeden, Overwork and the Slow Convergence in the Gender 
Gap in Wages, Am. Soc. Rev. 1-28 (2014), available at http://www.asanet.org/journals/ASR/ChaWeedenJune14ASR.pdf (last accessed 
Nov. 2, 2014); Francine D. Blau & Lawrence M. Kahn, The U.S. Gender 
Pay Gap in the 1990s: Slowing Convergence, 60 Indus. & Lab. Rel. 
Rev. 45 (2006) [hereinafter Slowing Convergence].

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[[Page 5251]]

    These disparities can be explained to some extent by differences in 
experience, occupation, and industry.\40\ However, decades of research 
show these wage gaps remain even after accounting for factors like the 
type of work people do and qualifications such as education and 
experience.\41\ Moreover, while some women may work fewer hours or take 
time out of the workforce because of family responsibilities, there is 
research suggesting that discrimination and not just choices can lead 
to women with children earning less; \42\ to the extent that the 
potential explanations such as type of job or amount of continuous 
labor market experience are also influenced by discrimination, the 
``unexplained'' difference may understate the true effect of sex 
discrimination.\43\
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    \40\ Equal Pay for Equal Work? New Evidence on the Persistence 
of the Gender Pay Gap: Hearing Before United States Joint Economic 
Comm., Majority Staff of the Joint Econ. Comm., 111th Cong., Invest 
in Women, Invest in America: A Comprehensive Review of Women in the 
U.S. Economy 80 (Comm. Print 2010), 80, available at http://jec.senate.gov/public/?a=Files.Serve&File_id=9118a9ef-0771-4777-9c1f-8232fe70a45c (last accessed Oct. 3, 2014) (statement of Randy 
Albelda, Professor of Economics and Senior Research Associate, 
University of Massachusetts-Boston Center for Social Policy).
    \41\ A March 2011 White House report entitled Women in America: 
Indicators of Social and Economic Well-Being, found that while 
earnings for women and men typically increase with higher levels of 
education, male-female pay gap persists at all levels of education 
for full-time workers (35 or more hours per week), according to 2009 
BLS wage data. Potentially nondiscriminatory factors can explain 
some of the gender wage differences. See, e.g., June Elliot O'Neill, 
The Gender Gap in Wages, Circa 2000, Am. Econ. Rev. (May 2003). Even 
so, after controlling for differences in skills and job 
characteristics, women still earn less than men. Explaining Trends 
in the Gender Wage Gap, A Report by the Council of Economic Advisers 
(June 1998). Ultimately, the research literature still finds an 
unexplained gap exists even after accounting for potential 
explanations, and finds that the narrowing of the pay gap for women 
has slowed since the 1980s. Joyce P. Jacobsen, The Economics of 
Gender 44 (2007); Slowing Convergence, supra note 39.
    \42\ Shelley J. Correll, Stephen Benard, & In Paik, ``Getting a 
Job: Is There a Motherhood Penalty?'' 112 American Journal of 
Sociology 1297 (2007).
    \43\ Strengthening the Middle Class: Ensuring Equal Pay for 
Women: Hearing Before H. Comm. on Educ. and Labor, 110th Cong. 
(2007), available at  http://www.cepr.net/index.php/strengthening-the-middle-class-ensuring-equal-pay-for-women-testimony/ (last 
accessed Oct. 3, 2014) (statement of Heather Boushey, Senior 
Economist, Center for Economic and Policy Research).
---------------------------------------------------------------------------

    Male-dominated occupations generally pay more than female-dominated 
occupations at similar skill levels. But even within the same 
occupation, women earn less than men on average. For example, in 2012, 
full-time women auditors' and accountants' earnings were less than 74 
percent of the earnings of their male counterparts.\44\ Retail 
salespersons faced the largest wage gap, among whom women made only 64 
percent of what men made.\45\ Likewise, in the medical profession, 
women earn less than their male counterparts. On average, male 
physicians earn 13 percent more than female physicians at the outset of 
their careers and as much as 28 percent more eight years later.\46\ 
This gap could not be explained by practice type, work hours, or other 
characteristics of employees' work situations.\47\
---------------------------------------------------------------------------

    \44\ IWPR Wage Gap by Occupation, supra note 32.
    \45\ Id.
    \46\ Constanca Esteves-Sorenson & Jason Snyder, The Gender 
Earnings Gap for Physicians and its Increase Over Time 1 (2011), 
available at http://faculty.som.yale.edu/ConstancaEstevesSorenson/documents/Physician_000.pdf (last accessed October 3, 2014).
    \47\ Id. A 2008 study on physicians leaving residency programs 
in New York State also found a $16,819 pay gap between male and 
female physicians. Anthony T. LoSasso, Michael R. Richards, Chiu-
Fang Chou & Susan E. Gerber, The $16,819 Pay Gap For Newly Trained 
Physicians: The Unexplained Trend Of Men Earning More Than Women, 30 
Health Affairs 193 (2011), available at http://content.healthaffairs.org/content/30/2/193.full.pdf+html (last 
accessed May 13, 2014).
---------------------------------------------------------------------------

    Despite enactment of the PDA, women continue to report that they 
have experienced discrimination on account of pregnancy. Between FY 
1997 and FY 2011, the number of charges of pregnancy discrimination 
filed with the EEOC and state and local agencies was significant, 
ranging from a low of 3,977 in 1997 to a high of 6,285 in 2008.\48\ A 
2011 review of reported ``family responsibility discrimination'' cases 
(brought by men as well as women) found that low-income workers face 
``extreme hostility to pregnancy.'' \49\
---------------------------------------------------------------------------

    \48\ U.S. Equal Employment Opportunity Commission, Pregnancy 
Discrimination Charges, EEOC & FEPAs Combined: FY 1997-FY 2011, 
available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm (last accessed Nov. 2, 2014); U.S Equal Employment 
Opportunity Commission, Charge Statistics: FY 1997 Through FY 2013, 
available at http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last accessed Nov. 2, 2014) (hereinafter ``EEOC Charge 
Statistics: FY 1997-2013''). FY 2011 is the last year for which 
comparable data are available. For FY 2012 and FY 2013, four percent 
of the charges filed with the EEOC alleged pregnancy discrimination. 
OFCCP calculations made from data from U.S Equal Employment 
Opportunity Commission, Pregnancy Discrimination Charges, FY 2010-FY 
2013, available at http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy_new.cfm (last accessed Nov. 2, 2014) and EEOC Charge 
Statistics: FY 1997-2013.
    \49\ Stephanie Bornstein, Center for WorkLife Law, UC Hastings 
College of the Law, Poor, Pregnant and Fired: Caregiver 
Discrimination Against Low-Wage Workers 2 (2011), available at 
http://worklifelaw.org/pubs/PoorPregnantAndFired.pdf (last accessed 
Oct. 3, 2014).
---------------------------------------------------------------------------

    In addition, some pregnant workers face a serious and unmet need 
for workplace accommodations, which are vital to their uninterrupted, 
seamless, and continued employment and, ultimately, to their health and 
that of their children. OFCCP is aware of a number of situations in 
which women have been denied accommodations with deleterious health 
consequences. For example:

    In one instance, a pregnant cashier in New York who was not 
allowed to drink water during her shift, in contravention of her 
doctor's recommendation to stay well-hydrated, was rushed to the 
emergency room after collapsing at work. As the emergency room 
doctor who treated her explained, because ``pregnant women are 
already at increased risk of fainting (due to high progesterone 
levels causing blood vessel dilation), dehydration puts them at even 
further risk of collapse and injury from falling.'' Another pregnant 
worker was prohibited from carrying a water bottle while stocking 
grocery shelves despite her doctor's instructions that she drink 
water throughout the day to prevent dehydration. She experienced 
preterm contractions, requiring multiple hospital visits and 
hydration with IV fluids. . . . [Another] woman, a pregnant retail 
worker in the Midwest who had developed a painful urinary tract 
infection, supplied a letter from her doctor to her employer 
explaining that she needed a short bathroom break more frequently 
than the store's standard policy. The store refused. She later 
suffered another urinary tract infection that required her to miss 
multiple days of work and receive medical treatment.\50\
---------------------------------------------------------------------------

    \50\ Brief of Health Care Providers, the National Partnership 
for Women & Families, and Other Organizations Concerned with 
Maternal and Infant Health as Amici Curiae in Support of Petitioner 
in Young v. United Parcel Service, supra, available at http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV4/12-1226_pet_amcu_hcp-etal.authcheckdam.pdf, at 9-10, 11 [citations omitted]. See also 
Wiseman v. Wal-Mart Stores, Inc., No. 08-1244-EFM, 2009 WL 1617669 
(D. Kan. June 9, 2009) (pregnant retail employee with recurring 
urinary and bladder infections caused by dehydration alleged she was 
denied permission to carry a water bottle despite doctor's note), 
available at http://www.gpo.gov/fdsys/pkg/USCOURTS-ksd-6_08-cv-01244/pdf/USCOURTS-ksd-6_08-cv-01244-0.pdf.

    ``Pregnant workers in physically demanding, inflexible, or 
hazardous jobs are particularly likely to need accommodations at some 
point during their pregnancies to continue working safely.'' \51\ 
Meanwhile, more women

[[Page 5252]]

today continue to work throughout their pregnancies and therefore are 
more likely to need accommodations of some sort. Of women who had their 
first child between 1966 and 1970, 49 percent worked during pregnancy; 
of those, 39 percent worked into their last month. For the period from 
2006 to 2008, the proportion working increased to 66 percent, and the 
proportion of those working into the last month increased to 82 
percent.\52\
---------------------------------------------------------------------------

    \51\ National Women's Law Center & A Better Balance, It 
Shouldn't Be a Heavy Lift: Fair Treatment for Pregnant Workers 5 
(2013), available at http://www.nwlc.org/sites/default/files/pdfs/pregnant_workers.pdf (last accessed Dec. 30, 2014) [hereinafter 
Heavy Lift].
    \52\ U.S. Census Bureau, Maternity Leave and Employment Patterns 
of First-Time Mothers: 1961-2008 4, 7 (2011), available at http://www.census.gov/prod/2011pubs/p70-128.pdf (last accessed Nov. 2, 
2014) (tables 1 and 3).
---------------------------------------------------------------------------

    In some ways, the nature of sex discrimination has also changed 
since OFCCP promulgated the Sex Discrimination Guidelines. Explicit sex 
segregation, such as the facial ``male only'' hiring policies that part 
60-20 specifically addresses, has been replaced in many workforces by 
less overt mechanisms that nevertheless present real equal opportunity 
barriers.
    One of the most significant barriers is the role of sex-based 
stereotyping. Decades of social science research have documented the 
extent to which sex-based stereotypes about the roles of women and men 
and their respective capabilities in the workplace can influence 
decisions about hiring, training, promotions, pay raises, and other 
conditions of employment.\53\ As the Supreme Court recognized in 1989, 
an employer engages in sex discrimination if its female employees' 
chances of promotion depend on whether they fit their managers' 
preconceived notions of how women should dress and act.\54\ Research 
clearly demonstrates that widely held social attitudes and biases can 
lead to discriminatory decisions, even where there is no formal sex-
based (or race-based) policy or practice in place.\55\ Sex-based 
stereotyping may have even more severe consequences for transgender, 
lesbian, gay, and bisexual applicants and employees, many of whom 
report that they have experienced discrimination in the workplace.\56\
---------------------------------------------------------------------------

    \53\ See, e.g., Susan Fiske et al., Controlling Other People: 
The Impact of Power on Stereotyping, 48 a.m. Psychol. 621 (1993); 
Marzarin Banaji, Implicit Social Cognition: Attitudes, Self-Esteem 
and Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle & Madeline 
Heilman, Formal and Informal Discrimination Against Women at Work in 
Managing Social and Ethical Issues in Organizations 23 (Stephen 
Gilliland, Dirk Douglas Steiner & Daniel Skarlicki eds., 2007); 
Susan Bruckm[uuml]ller et al., Beyond the Glass Ceiling: The Glass 
Cliff and Its Lessons for Organizational Policy, 8 Soc. Issues & 
Pol. Rev. 202 (2014) (describing the role of sex-based stereotypes 
in the workplace).
    \54\ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Men, too, 
can experience adverse effects from sex-based stereotyping.
    \55\ See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, Racial 
Discrimination in the Labor Market: Theory and Empirics (NBER 
Working Paper No. 17450, 2010), available at http://128.197.153.21/jee/Lang_Lehmann_jel_disc.pdf (last accessed Oct. 3, 2014); Marianne 
Bertrand & Sendhil Mullainathan, Are Emily and Brendan More 
Employable Than Lakisha and Jamal? A Field Experiment on Labor 
Market Discrimination, 94(4) American Econ. Rev. (2004); Ian Ayres & 
Peter Siegelman, Race and Gender Discrimination in Bargaining for a 
New Car, 85(3) Am. Econ. Rev. (1995); Marc Bendick, Charles Jackson 
& Victor Reinoso, Measuring Employment Discrimination Through 
Controlled Experiments, 23 Rev. of Black Pol. Econ. 25 (1994).
    \56\ Injustice at Every Turn, supra note 13; Brad Sears & 
Christy Mallory, The Williams Institute, Documented Evidence of 
Employment Discrimination & Its Effects on LGBT People (2011), 
available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Sears-Mallory-Discrimination-July-20111.pdf (last accessed 
Nov. 5, 2014). Further discussion of discrimination on the basis of 
sexual orientation and gender identity can be found infra in the 
passages on Sec.  60-20.2(a) and Sec.  60-20.7.
---------------------------------------------------------------------------

    With the marked increase of women in the labor force, the changes 
in employment practices, and numerous key legal developments since 
1970, the ``special problems . . . [of] implementation'' of the 
Executive Order's prohibition of sex discrimination referred to in 
current Sec.  60-20.1 have changed significantly as well. As a result, 
many of the provisions in the Guidelines are outdated, inaccurate, or 
both. At the same time, there are important and current areas of law 
that the Guidelines fail to address at all. For example, while the 
existing regulations touch upon leave for childbearing, they are 
completely silent about refusals to hire pregnant women or women of 
childbearing age, restricted duty during pregnancy, health insurance or 
other benefits, and other applications of the law prohibiting pregnancy 
discrimination.

Section-by-Section Analysis

    The NPRM recommends a quite different organization of the topics 
covered in current part 60-20. For example, discussion of the BFOQ 
defense is repeated in several different sections of the current 
guidelines; the proposal consolidates this discussion into one section 
covering BFOQs. In addition, the proposal does not address some topics 
that are addressed in current part 60-20 but are outdated; includes 
some topics that are covered by the current guidelines but in revised 
form to align them with current law; and adds some provisions not 
contained in the current guidelines to address contemporary problems 
with implementation.
    This Section-by-Section Analysis identifies and discusses all 
proposed changes in each section. OFCCP welcomes comments on each of 
the provisions discussed below.

Title of the Regulations

    The current title of part 60-20 is ``Sex Discrimination 
Guidelines.'' OFCCP proposes to change this title to ``Discrimination 
on the Basis of Sex,'' to make clear that the provisions in part 60-20 
are regulations implementing Executive Order 11246 with the full force 
and effect of law.

Section 60-20.1 Purpose

    The NPRM proposes a few minor changes to this section. First, it 
deletes the words ``Title and'' from the heading of current Sec.  60-
20.1, because the proposed section does not set out a title. Second, it 
deletes the second sentence of current Sec.  60-20.1, which explains 
the reason that this part was promulgated in 1970, because the reasons 
for amending this part are contained in the preamble of the NPRM. 
Finally, the proposal modifies the last sentence of current Sec.  60-
20.1, which notifies the public that part 60-20 is ``to be read in 
connection with existing regulations, set forth in part 60-1 of this 
chapter.'' For completeness and to prevent any confusion, this change 
clarifies that contractors are subject to all the relevant parts 
related to the implementation of Executive Order 11246, by listing them 
specifically. Therefore, the proposed rule states that part 60-20 is to 
be read in conjunction with parts 60-1, 60-2, 60-3, 60-4, and 60-30 of 
this title.

Section 60-20.2 General Prohibitions

    OFCCP proposes removing current Sec.  60-20.2 entitled 
``Recruitment and advertisement,'' which addresses both the 
nondiscrimination requirements related to recruiting and advertising 
and the BFOQ defense. Unlawful practices related to recruitment and 
advertising contained in current Sec.  60-20.2 are subsumed in a new 
subparagraph of this section. See proposed paragraph 60-20.2(b)(7). The 
BFOQ defense is now addressed in proposed Sec.  60-20.3.
    In place of current Sec.  60-20.2, OFCCP proposes a new section 
entitled ``General prohibitions.'' Paragraph (a) of this new section 
articulates the general prohibition against sex discrimination in 
employment. Paragraph (b) expressly prohibits disparate treatment 
discrimination; subparagraphs (b)(1) through (b)(10) apply the general 
prohibition of disparate treatment discrimination to specific 
practices. Paragraph (c) prohibits discrimination under disparate 
impact analysis.
    The general statement prohibiting sex discrimination in paragraph 
(a) clarifies that discrimination based on pregnancy,

[[Page 5253]]

childbirth, or related medical conditions is a form of sex 
discrimination. This principle has been the law since Congress enacted 
the Pregnancy Discrimination Act amendments to title VII in 1978. This 
form of discrimination is also treated separately in proposed Sec.  60-
20.5.
    In addition, paragraph (a) clarifies that discrimination based on 
gender identity or transgender status is also a form of sex 
discrimination. See OFCCP Directive 2014-02, ``Gender Identity and Sex 
Discrimination'' (August 19, 2014). As Directive 2014-02 explains, 
``Under current Title VII case law principles, discrimination based on 
gender identity or transgender status . . . is discrimination based on 
sex.'' The Directive relied on the EEOC's decision in Macy v. Holder, 
2012 WL 1435995 (EEOC April 20, 2012), in which the EEOC commissioners 
unanimously concluded that discrimination because a person is 
transgender is sex discrimination in violation of title VII, by 
definition, because the discriminatory act is ``related to the sex of 
the victim.'' \57\ The EEOC cited both the text of title VII and the 
reasoning in Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), 
for its conclusion.\58\ See also Memorandum from Attorney General Eric 
Holder to United States Attorneys and Heads of Department Components 
(Dec. 15, 2014) (citing EEOC's decision in Macy v. Holder as support 
for DOJ's positon that ``[t]he most straightforward reading of Title 
VII is that discrimination `because of . . . sex' includes 
discrimination because an employee's gender identification is as a 
member of a particular sex, or because the employee is transitioning, 
or has transitioned, to another sex''). Note that discrimination on the 
basis of gender identity or transgender status can arise regardless of 
whether a transgender individual has undergone, is undergoing, or plans 
to undergo sex-reassignment surgery or other processes or procedures 
designed to facilitate the adoption of a sex or gender other than the 
individual's designated sex at birth.
---------------------------------------------------------------------------

    \57\ Macy at *7. Macy also held that discrimination on the basis 
of transgender status could be unlawful under title VII as sex 
stereotyping. That form of sex stereotyping is separately addressed 
in proposed Sec.  20.7.
    \58\ Consistent with Macy, this NPRM defines discrimination on 
the basis of gender identity as a form of sex discrimination. Gender 
identity is also a stand-alone protected category (along with sexual 
orientation) under Executive Order 13672. Executive Order 13672 
amends Executive Order 11246 to add sexual orientation and gender 
identity as protected bases, and applies to contracts entered into 
or modified on or after April 8, 2015, the effective date of the 
implementing regulations promulgated thereunder.
---------------------------------------------------------------------------

    Many of the examples included in this proposed section are 
presently listed in Sec.  60-20.3, ``Job policies and practices,'' of 
the current part 60-20. For instance, proposed paragraph 60-20.2(b)(1) 
identifies making a distinction between married and unmarried persons 
that is not applied equally to both sexes as an example of a sex-based 
discriminatory practice, and proposed paragraph 60-20.2(b)(2) provides 
that denying women with children an employment opportunity that is 
available to men with children is an unlawful sex-based discriminatory 
practice. These proposed provisions can be found in current paragraph 
60-20.3(d).
    Other examples of practices listed in this proposed rule that, 
absent a BFOQ, would constitute sex-based discriminatory treatment 
include: Treating unmarried female parents differently than unmarried 
male parents (proposed paragraph 60-20.2(b)(3)); imposing differences 
in retirement age or other terms, conditions, or privileges of 
retirement based on sex (proposed paragraph 60-20.2(b)(4)); restricting 
job classifications on the basis of sex (proposed paragraph 60-
20.2(b)(5)); maintaining seniority lines and lists based on sex 
(proposed paragraph 60-20.2(b)(6)); recruiting or advertising for 
members of one sex for a certain job, including through use of gender-
specific terms for jobs (proposed paragraph 60-20.2(b)(7)); and 
distinguishing on the basis of sex in apprenticeship or other formal or 
informal training programs; in other opportunities such as networking, 
mentoring, sponsorship, individual development plans, rotational 
assignments, and succession planning programs; and in performance 
appraisals that may provide the basis of subsequent opportunities 
(proposed paragraph 60-20.2(b)(8)). Specific enumeration of these types 
of programs ensures that the forms of career development and 
advancement opportunities that contractors currently use are included.
    Proposed paragraph 60-20.2(b)(9) states that making any facilities 
or employment-related activities available only to members of one sex 
is an example of an unlawful sex-based discriminatory practice, with 
the condition that if a contractor provides restrooms or changing 
facilities, the contractor must provide separate or single-user 
restrooms or changing facilities to assure privacy between the 
sexes.\59\
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    \59\ This provision aligns with an existing affirmative action 
requirement applicable to Federal and federally-assisted 
construction contractors at 41 CFR 60-4.3(a) 7n (``Ensure that all 
facilities and company activities are nonsegregated except that 
separate or single-user toilet and necessary changing facilities 
shall be provided to assure privacy between the sexes.'').
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    This proposed paragraph replaces current Sec.  60-20.3(e), which 
requires contractors to provide ``appropriate physical facilities'' to 
both men and women ``unless the employer is able to show that the 
construction of the facilities would be unreasonable for such reasons 
as excessive expense or lack of space.'' Under existing law, 
unreasonable cost is not acceptable as a defense to sex discrimination 
in employment.\60\ Moreover, current Sec.  60-20.3(e) is inconsistent 
with other OFCCP regulations, which require contractors to provide 
separate or single-user restrooms and changing facilities to assure 
privacy between the sexes without exception for cost or lack of space. 
See 41 CFR 60-1.8 (supply and service contractors); 41 CFR 60-4.3(a) 7n 
(construction contractors).\61\
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    \60\ See Int'l Union, United Auto., Aerospace and Agric. 
Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 
210-11 (1991), in which the plaintiff challenged defendant's policy 
prohibiting women of childbearing age from working in jobs involving 
exposure to lead because of potential health dangers to fetuses that 
they may be carrying. The Supreme Court held that the cost of 
eliminating the health dangers cannot be a BFOQ that justifies the 
exclusion of women workers.
    \61\ In addition, OSHA regulations require employers to provide 
employees with toilets, except for ``mobile crews, which must have] 
``transportation readily available to nearby toilet facilities.'' 29 
CFR 1926.51(c) (OSHA construction sanitation standard); OSHA 
Standard Interpretation regarding 29 CFR 1926.51(c) (June 7, 2002), 
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24369 
(interpreting the provision pertaining to mobile crews as requiring 
prompt access to toilets that are less than 10 minutes away and 
recognizing that women may need bathroom facilities more often than 
men).
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    Proposed paragraph 60-20.2(b)(10) describes another example of sex-
based discriminatory practices: Denying transgender employees access to 
the bathrooms used by the gender with which they identify.
    Proposed paragraph 60-20.2(b)(11) addresses discrimination against 
transgender individuals who have undergone, are undergoing, or plan to 
undergo sex-reassignment surgery or other processes or procedures 
designed to facilitate the adoption of a sex or gender other than the 
individual's designated sex at birth. Disparate treatment for this 
reason has been classified as both discrimination on the basis of sex-
based stereotypes and as discrimination on the basis of sex. Schroer v. 
Billington, supra, at 304-08 (D.D.C. 2008) (concluding that an 
employer's decision to withdraw a job offer from a transgender 
applicant

[[Page 5254]]

constituted both sex-stereotyping discrimination and sex discrimination 
in violation of title VII). The EEOC has recognized this principle as 
well. Macy v. Holder, supra.
    Finally, proposed paragraph 60-20.2(c) provides that employment 
policies or practices that state a claim of disparate impact 
discrimination violate Executive Order 11246 and the regulations at 41 
CFR part 60-20. Proposed paragraph 60-20.2(c) identifies several 
examples of employment practices that may have an adverse impact on 
women. Traditionally, disparate impact claims have involved selection 
criteria that are not necessary to the performance of the job, but 
which instead reflect stereotypical notions about the skills required 
for the position in question. See, e.g., Blake v. City of Los Angeles, 
595 F.2d 1367 (9th Cir. 1979) (striking down height requirements by the 
Los Angeles police department because they were not job related and had 
a disparate impact on women, who in general are shorter than men); EEOC 
v. Dial Corp., 469 F.3d 735 (8th Cir. 2006) (striking down a strength 
test used in a sausage factory because the test was more physically 
demanding than the job in question and had a significant disparate 
impact on women). This sex discrimination analysis may also apply to 
policies or practices that are unrelated to selection procedures. For 
instance, an employer policy requiring crane operators to urinate off 
the back of the crane instead of using a restroom was held to be a 
neutral employment policy that was not justified by business necessity 
and that produced an adverse effect on women, who, the court found, 
have ``obvious anatomical and biological differences'' that require the 
use of bathrooms. Johnson v. AK Steel Corp., 2008 WL 2184230, *8 (S.D. 
Oh. May 23, 2008).

Section 60-20.3 Sex as a Bona Fide Occupational Qualification

    OFCCP proposes removing current Sec.  60-20.3 entitled ``Job 
policies and practices,'' which addresses a variety of topics, 
including a contractor's general obligations to ensure equal 
opportunity in employment on the basis of sex (paragraphs 60-20.3(a), 
60-20.3(b), and 60-20.3(c)); provides examples of discriminatory 
treatment (paragraph 60-20.3(d)); and sets forth contractor obligations 
with respect to the provision of physical facilities, including 
bathrooms (paragraph 60-20.3(e)), the impact of state protective laws 
(paragraph 60-20.3(f)), leave for childbearing (paragraph 60-20.3(g)), 
and specification of retirement age (paragraph 60-20.3(h)). Current 
paragraph 60-20.3(i) clarifies that differences in capabilities for job 
assignments among individuals may be recognized by the employer in 
making specific assignments.
    As explained earlier in the preamble, OFCCP proposes moving the 
general obligation to ensure equal employment opportunity and the 
examples of discriminatory treatment to proposed Sec.  60-20.2. To 
improve coherence and clarity, OFCCP proposes to move (and revise in 
some instances) the remaining obligations set forth in paragraphs (e) 
through (i) to their own separate sections or to incorporate them as 
illustrations of discriminatory treatment in proposed Sec.  60-20.2.
    Specifically, current paragraph 60-20.3(e) regarding provision of 
physical facilities is now addressed in proposed Sec.  60-20.2. See the 
discussion earlier in this preamble for information regarding this 
proposed provision.
    Current paragraph 60-20.3(f), which addressed state protective 
laws, has been removed entirely because it is unnecessary and 
anachronistic. While in 1970 there may have been some legal question 
whether state protective laws provided a defense to discriminatory 
employment policies, in 2014 it is beyond dispute that they do not. See 
Int'l Union, United Auto., Aerospace and Agr. Implement. Workers of Am. 
v. Johnson Controls, Inc., supra (holding that possible reproductive 
health hazards to women of childbearing age did not justify sex-based 
exclusions from certain jobs). Proposed paragraph 60-20.2(b)(5), 
prohibiting sex-based job classifications, clearly states the 
underlying principle that no job, absent a job-specific BFOQ, is the 
separate domain of any sex. OFCCP invites comment from stakeholders as 
to the current scope of state protective laws, whether those that exist 
are enforced, and what practical effect, if any, they have on 
contractors.
    Current paragraph 60-20.3(g) regarding leave for childbearing is 
now addressed in its own section: discrimination on the basis of 
pregnancy, childbirth, or related medical conditions. See the 
discussion of proposed Sec.  60-20.5 later in this preamble.
    Current paragraph 60-20.3(h) prohibits differential treatment 
between men and women with regard to retirement age. It is restated and 
broadened, prohibiting the imposition not only of sex-based differences 
in retirement age but also in ``other terms, conditions, or privileges 
of retirement,'' in proposed paragraph 60-20.2(b)(4). OFCCP invites 
comments on whether such differential treatment continues today.
    Current paragraph 60-20.3(i) states, in its first sentence, that 
the Sex Discrimination Guidelines allow contractors to recognize 
differences in capabilities for job assignments in making specific 
assignments. The second sentence reiterates that the purpose of the 
guidelines ``is to insure that such distinctions are not based upon 
sex.'' This paragraph is omitted from the proposal because it is 
unnecessary and because its second sentence is repetitive of proposed 
Sec.  60-20.1. Implicit in the provisions prohibiting discrimination on 
the basis of sex is the principle that distinctions for other reasons, 
such as differences in capabilities, are not prohibited.\62\ Making 
distinctions among employees based on their relevant job skills, for 
example, does not constitute unlawful discrimination.
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    \62\ Of course, discrimination based on other reasons that are 
independently prohibited by law--such as race, religion, color, 
national origin, disability, sexual orientation, gender identity, 
and protected veteran status--is prohibited.
---------------------------------------------------------------------------

    Proposed Sec.  60-20.3 entitled ``Sex as a bona fide occupational 
qualification'' is new and consolidates in one provision the current 
references to the BFOQ defense available to employers in paragraphs 60-
20.3(b) and 60-20.3(f)(2), and adopts the BFOQ language set forth in 
title VII, 42 U.S.C. 2000e-2(e).
    OFCCP expects that this proposed reorganization will make the 
regulations more user-friendly and will help facilitate a better 
understanding of the Executive Order requirements with respect to sex 
discrimination.

Section 60-20.4 Discriminatory compensation

    Current Sec.  60-20.4 relating to seniority systems would be 
removed because its subject matter--the interaction of seniority 
systems and sex discrimination--is addressed in proposed Sec.  60-20.2 
at paragraph (b)(6).
    Proposed Sec.  60-20.4 would replace the current requirements 
related to discriminatory wages in current Sec.  60-20.5. In general, 
the existing text focuses on particular kinds of jobs and fact patterns 
that may have posed significant limitations on equal opportunity in 
compensation at the time the Guidelines were adopted. However, the 
continued increase of women into the workforce, their robust 
participation in a wide variety of occupations and positions, ranging 
from entry-level to senior management, and the significant 
representation of women in both the hourly and salaried workforce 
require a more comprehensive statement

[[Page 5255]]

addressing sex discrimination in wages and other terms of compensation.
    For example, paragraph (a) of current Sec.  60-20.5 provides only a 
cursory description of sex discrimination in wages and other forms of 
compensation and fails to give useful guidance to contractors in 
evaluating their compensation programs for potential sex 
discrimination. The one clarifying example provided in the Note in 
current Sec.  60-20.5(a) tracks the Equal Pay Act rather than title 
VII. OFCCP enforces the Executive Order's nondiscrimination provisions, 
including the ban on compensation discrimination, consistent with title 
VII. Courts have concluded that title VII uses a broader and more 
flexible approach to comparing jobs and defining similarly situated 
workers than the Equal Pay Act, see, e.g., Cnty. of Washington v. 
Gunther, 452 U.S. 161 (1981); Miranda v. B & B Cash Grocery, 975 F.2d 
1518 (11th Cir. 1992). For that reason, the Note has the potential to 
create unnecessary confusion, and the proposed rule omits it entirely.
    Similarly, current paragraph (b) appears to contemplate only 
workplaces that are completely or explicitly segregated by gender. 
However, title VII also bars other, more subtle forms of discriminatory 
compensation that can result from de facto job segregation or 
classification on the basis of sex. For example, a retail chain might 
disproportionately steer women into lower paying cashier jobs--even 
though the women are qualified and available for higher paying 
positions--based on the outdated, stereotypical notion that men, and 
not women, are the primary wage earners. These forms of discriminatory 
compensation remain a potential concern that should be, and are, 
addressed by the proposed regulation.
    Current paragraph (c) has been superseded by the transfer of Equal 
Pay Act jurisdiction to the EEOC and is therefore removed.
    The proposed new text in Sec.  60-20.4 provides a clearer general 
statement of the contractor's obligation to provide equal opportunity 
with respect to wages and other forms of compensation. The Executive 
Order and the implementing regulations specifically require contractors 
to ensure pay equity. Thus, Federal contractors have affirmative duties 
to maintain data, conduct internal reviews, and monitor pay practices 
for potential discrimination, as well as comply with the Executive 
Order's ban on discrimination in the payment of wages, salaries, and 
other forms of compensation.\63\ The section generally restates the 
agency's case-specific approach to evaluating contractor pay systems 
and practices for sex discrimination, where the agency tailors the 
investigative and analytic methods to the facts of the case.\64\ This 
may include conducting multiple regression analyses and applying other 
formal statistical tests as well as using comparative and 
circumstantial evidence. As this approach is grounded in well-
established principles of title VII law,\65\ it also would apply when 
evaluating contractor pay systems and practices for discrimination 
based on other protected categories.
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    \63\ Section 202 of Executive Order 11246, as amended; 41 CFR 
60-1.12; 60-1.4; 60-2.17(b)-(d).
    \64\ OFCCP's case-by-case investigation procedures implement the 
title VII principles applicable to enforcing discrimination in any 
employment practice under Executive Order 11246. The agency provides 
this very general description of its approach for purposes of 
clarification and consistency with its other statements of policy in 
this area.
    \65\ Interpreting Nondiscrimination Requirements of Executive 
Order 11246 with Respect to Systemic Compensation Discrimination and 
Voluntary Guidelines for Self-Evaluation of Compensation Practices 
for Compliance with Nondiscrimination Requirements of Executive 
Order 11246 with Respect to Systemic Compensation Discrimination: 
Notice of Final Rescission, 78 FR 13508, Feb. 28, 2013 (hereinafter 
Notice of Rescission).
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    Furthermore, OFCCP does not require anecdotal evidence to support a 
pay violation. Identifying individuals harmed by pay discrimination is 
particularly difficult.\66\ Many workers do not know that they are 
underpaid.\67\ If OFCCP finds evidence of pay discrimination by Federal 
contractors through its review of data, the agency should not permit 
that discrimination to continue simply because the contractor had 
successfully hidden it from its employees. Federal contractors have 
special obligations to avoid discrimination, monitor their pay 
practices and submit to reviews to make certain they are in compliance, 
regardless of whether any individual applicant or employee actually has 
knowledge of discrimination.
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    \66\ Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 645 
(2007) (Ginsburg, J., dissenting).
    \67\ On April 8, 2014, President Obama issued Executive Order 
13655, which provides that a Federal contractor may not discharge or 
otherwise discriminate against any employee or applicant because 
such person has inquired about, discussed, or disclosed the 
compensation of the person or another employee or applicant. OFCCP 
published an NPRM on Sept. 17, 2014 to implement this executive 
order. 79 FR 55712. The comment period closed on Dec. 16, 2014.
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    Section 60-20.4 substitutes the general and more modern term 
``compensation'' for the outdated term ``wage schedules'' and clarifies 
that both systemic and individual forms of such discrimination are 
barred by the Executive Order. Proposed amendments to Section 60-1.3 to 
implement Executive Order 13655 would define compensation as follows:

    Compensation means any payments made to, or on behalf of, an 
employee or offered to an applicant as remuneration for employment, 
including but not limited to salary, wages, overtime pay, shift 
differentials, bonuses, commissions, vacation and holiday pay, 
allowances, insurance and other benefits, stock options and awards, 
profit sharing, and contributions to retirement.

    That same definition would apply to any assessment of compensation 
discrimination under EO 11246, including when evaluating sex 
discrimination in compensation under this section.
    To provide more guidance to contractors about the kinds of 
practices they should review and analyses they should undertake to 
assess their compliance, new paragraphs (a), (b), and (c) specify a 
variety of ways pay discrimination may occur. For example, proposed 
paragraph (a) states that contractors may not pay different 
compensation to similarly situated employees on the basis of sex. 
Proposed paragraph (b) prohibits contractors from, among other things, 
granting or denying training, work assignments, or other opportunities 
that may lead to advancement on the basis of sex, and proposed 
paragraph (c) states that contractors may not provide or deny earnings 
opportunities because of sex, for example by denying women equal 
opportunity to obtain regular and/or overtime hours, commissions, pay 
increases, incentive compensation, or any other additions to regular 
earnings.
    The revised text in proposed paragraph (a) also addresses the 
question of determining ``similarly situated'' employees for purposes 
of analyzing compensation differences. The determination of similarly 
situated employees is case specific. Relevant factors in determining 
similarity may include tasks performed, skills, effort, levels of 
responsibility, working conditions, job difficulty, minimum 
qualifications, and other objective factors. In some cases, employees 
are similarly situated where they are comparable on some of these 
factors, even if they are not similar in other

[[Page 5256]]

factors.\68\ For example, when evaluating a job assignment issue, 
workers are similarly situated when their qualifications are 
comparable, but they are assigned to jobs at different levels.\69\ 
Employees are similarly situated when they are comparable on factors 
relevant to the compensation issues presented. Identification of 
similarly situated employees for purposes of an individual analysis or 
review of a single specific employment decision may be determined based 
on different criteria than when conducting a systemic discrimination 
analysis. In analyzing compensation, title VII permits comparing 
workers within the same or similar jobs or within specific units or 
locations, and also permits consideration of pay differences more 
broadly--for example, across jobs or locations or units--as long as the 
workers are comparable under the employer's wage or salary system.\70\
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    \68\ In employment discrimination cases, courts generally 
consider whether the workers being compared are similar in aspects 
relevant to the case. See, e.g., McGuinness v. Lincoln Hall, 263 
F.3d 49, 53-54 (2d Cir. 2001); Ercegovich v. Goodyear Tire and 
Rubber Co., 154 F.3d 344 (6th Cir. 1998); McNabola v. Chicago 
Transit Authority, 10 F.3d 501 (7th Cir. 1993).
    \69\ See, e.g., Beckman v. CBS, 192 FRD. 608 (D. Minn. 2000); 
Stender v. Lucky Stores, 803 F.Supp. 259 (N.D. Cal. 1992); OFCCP v. 
St. Regis Corp. 78-OFC-1, ALJ's Recommended Decision (Dep't. of 
Labor Dec. 28, 1984).
    \70\ Notice of Rescission, supra note 65, 78 FR at 13511-13513.
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    New paragraph (d) prohibits contractors from implementing 
compensation practices, including performance review systems, that 
discriminate on the basis of sex under the disparate impact analysis of 
discrimination.\71\ New paragraph (e) restates longstanding OFCCP 
principles regarding the circumstances under which pay discrimination 
is a continuing violation under the Executive Order.
---------------------------------------------------------------------------

    \71\ Lewis v. City of Chicago, 560 U.S. 205, 212 (2010) (finding 
title VII places no limit on the types of employment practices that 
may be challenged under disparate impact analysis).
---------------------------------------------------------------------------

Section 60-20.5 Discrimination on the Basis of Pregnancy, Childbirth, 
or Related Medical Conditions

    Current Sec.  60-20.5 entitled ``Discriminatory wages'' has been 
revised and moved to Sec.  60-20.4 as discussed earlier in the 
preamble.
    This proposed section is new; however, it incorporates certain 
obligations already set forth in the current part 60-20 at paragraph 
60-20.3(g) regarding the provision of leave to employees who require 
time away from work on account of childbearing.
    Proposed paragraph (a) of this section incorporates the principle 
set forth in the Pregnancy Discrimination Act that discrimination on 
the basis of sex includes ``because of or on the basis of pregnancy, 
childbirth, or related medical conditions.'' It requires that 
contractors treat employees and job applicants of childbearing capacity 
and those affected by pregnancy, childbirth, or related medical 
conditions the same for all employment-related purposes as other 
persons not so affected but similar in their ability or inability to 
work and defines the term ``related medical conditions.'' Further, it 
incorporates the provision in the PDA, codified in 42 U.S.C. 2000e(k), 
that exempts employers from having to pay for health insurance benefits 
for abortion ``except where the life of the mother would be endangered 
if the fetus were carried to term, or except where medical 
complications have arisen from an abortion,'' and the further proviso 
that nothing in that exemption ``preclude[s] a contractor from 
providing abortion benefits or otherwise affect[s] bargaining 
agreements in regard to abortion.''
    Proposed paragraph (b) sets forth some of the most common 
applications of the general principle of nondiscrimination on the basis 
of pregnancy, childbirth, or related medical conditions. These examples 
include refusing to hire applicants because of pregnancy or 
childbearing capacity (paragraph (b)(1)); firing employees or requiring 
them to go on leave because they become pregnant or have a child 
(paragraph (b)(2)); limiting a pregnant employee's job duties based on 
pregnancy or requiring a doctor's note in order for the employee to 
continue employment while pregnant (paragraph (b)(3)); and providing 
employees with health insurance that does not cover hospitalization and 
other medical costs for pregnancy, childbirth, or related medical 
conditions, including contraception coverage, to the same extent that 
such costs are covered for other medical conditions (paragraph (b)(4)).
    Paragraph (b)(5) includes, as another common example of 
discrimination based on pregnancy, childbirth, or related medical 
conditions, failure to provide reasonable workplace accommodations to 
employees affected by such conditions when such accommodations are 
provided to other workers similar in their ability or inability to 
work.\72\ Without such workplace accommodations, many pregnant workers 
are forced to go on leave. Unfortunately, insufficient job-protected 
leave, time-limited temporary disability insurance, and minimal sick 
leave often fail to cover the entire period of pregnancy-related work 
limitations. Consequently, some pregnant workers who need reasonable 
accommodations lose their jobs, wages, and health care coverage.\73\
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    \72\ This is true even though ``pregnancy itself is not an 
impairment within the meaning of the [Americans with Disabilities 
Act of 1990, 42 U.S.C. 12101 et seq., as amended], and thus is never 
on its own a disability.'' EEOC, Enforcement Guidance: Pregnancy 
Discrimination and Related Issues, sec. II.A (July 14, 2014) 
(footnote omitted), available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm (last accessed December 12, 2014).
    \73\ Heavy Lift, supra note 51, at 1, 4, 6, 8, 9-10, 11, 15, 18.
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    The range of accommodations to address the temporary limitations of 
a pregnant worker may include simple things that involve little or no 
cost, such as permitting more frequent bathroom breaks and allowing the 
pregnant worker to sit down during a shift.\74\ Other temporary 
limitations, however, may require a temporary light-duty assignment to 
accommodate lifting or bending restrictions that a pregnant worker may 
have.
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    \74\ In addition, the Fair Labor Standards Act, 29 U.S.C. 
207(r), requires employers of 50 or more employees (and smaller 
employers if complying does not impose an undue hardship) to provide 
reasonable break time for an employee to express breast milk for a 
nursing child for one year after the child's birth, each time such 
employee has need to express the milk. Employers are also required 
to provide a place, other than a bathroom, that is shielded from 
view and free from intrusion from coworkers and the public, which 
may be used by an employee to express breast milk.
---------------------------------------------------------------------------

    Denying an alternative job assignment, modified duties, or other 
accommodations to a pregnant employee who is temporarily unable to 
perform some job duties because of pregnancy, childbirth, or a related 
medical condition is sex discrimination when such assignments, 
modifications, or other accommodations are provided, or are required to 
be provided, by a contractor's policy or other relevant laws, to other 
employees whose abilities to perform some of their job duties are 
similarly affected (paragraph (b)(5)). Thus, for example, a contractor 
that permits light-duty assignments for employees who are unable to 
work their regular assignments due to on-the-job injuries or 
disabilities must also permit light-duty assignments for employees who 
are unable to work their regular assignments due to pregnancy. The 
approach set forth here with respect to pregnancy accommodation is 
intended to align OFCCP's regulations implementing Executive Order 
11246 with EEOC guidance in this area and with the position taken by 
the Federal government in Young v. United Parcel Serv., Inc., 707 F.3d 
437 (4th Cir. 2013), cert. granted (U.S. No. 12-1226, July 1, 2014), a 
case currently before the Supreme Court. Should the Supreme Court rule 
contrary to our interpretation, OFCCP's final rule will be revised 
consistent with the ruling.
    The EEOC has long interpreted the PDA in this way, stating as early 
as 1979

[[Page 5257]]

that ``[a]n employer is required to treat an employee temporarily 
unable to perform the functions of her job because of her pregnancy-
related condition in the same manner as it treats other temporarily 
disabled employees.'' 29 CFR pt. 1604, App. ] 5 (emphasis added). It 
reaffirmed this position in its 2014 PDA enforcement guidance. EEOC, 
Enforcement Guidance: Pregnancy Discrimination and Related Issues 
I.C.1.b (July 14, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm; see also 9 CFR pt. 1604, App. ] 5 (``[a]n 
employer is required to treat an employee temporarily unable to perform 
the functions of her job because of her pregnancy-related condition in 
the same manner as it treats other temporarily disabled employees.'') 
(emphasis added); id. (``If other employees temporarily unable to lift 
are relieved of these functions, pregnant employees also unable to lift 
must be temporarily relieved of the function.'').
    As the Government has argued in its brief before the Supreme Court 
in Young, nothing in the plain language of the PDA or any EEOC guidance 
suggests that the underlying reason for the inability to work is 
relevant; as long as the employees are ``similar in their inability to 
work,'' those affected by pregnancy, childbirth, or related medical 
conditions must be provided the same accommodation as those not so 
affected, regardless of the reasons for the inability to work. See 
Brief for the United States as Amicus Curiae Supporting Petitioner in 
Young v. United Parcel Service, Inc., No. 12-1226 (U.S.), 2014 WL 
4536939, at *16 (``Nothing in the PDA indicates that a pregnant 
employee faces discrimination . . . only when she receives less 
favorable treatment than every other employee who is similar in his or 
her ability or inability to work. The plain text of the statute 
prohibits treating pregnant employees less favorably (for any 
`employment-related purpose[ ]') than `other persons not so affected 
but similar in their ability or inability to work.''') (citation 
omitted); id. at *26 (``Recognizing that petitioner has established a 
violation of the PDA is consistent with the longstanding position of 
the EEOC.'').\75\ See also International Union v. Johnson Controls, 
Inc., 499 U.S. 187, 204-05 (1991) (``[u]nless pregnant employees differ 
from others in their ability or inability to work, they must be treated 
the same as other employees for all employment-related purposes'' 
(citation and internal quotation marks omitted; emphases added)); 
Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996); Raciti-Hur v. 
Homan, No. 98-1218, 1999 U.S. App. LEXIS 9551, 1999 WL 331650 (6th Cir. 
May 13, 1999) (unpublished); Latowski v. Northwoods Nursing Center, No. 
12-2408, 2013 U.S. App. LEXIS 25738, at *10-*11 (6th Cir. December 23, 
2013) (unpublished).\76\
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    \75\ The EEOC further explained its position in EEOC v. Horizon/
CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000) (decided on 
other grounds). The EEOC argued in Horizon that ``the Charging 
Parties are most appropriately compared to all temporarily-disabled, 
non-pregnant employees whether they sustained their injuries on or 
off the job.'' Id. at 1194-1195 (emphasis added).
    \76\ Other Sixth Circuit opinions appear to suggest a different 
interpretation of the PDA. Reeves v. Swift Transp. Co., 446 F.3d 637 
(6th Cir. 2006); Tysinger v. Police Dept., 463 F.3d 569 (2006). In 
addition, other circuits have held that the reason for employees' 
inability to work does make a difference to the determination 
whether employees affected by pregnancy, childbirth, or related 
medical conditions are similarly situated to those not so affected 
for purposes of receiving accommodations for their inability to 
work. Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 
2013), cert. granted (U.S. No. 12-1226, July 1, 2014); Serednyj v. 
Beverly Healthcare, LLC, 656 F.3d 540, 548-549 (7th Cir. 2011); 
Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312-1313 (11th Cir. 
1999); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 207-208 
(5th Cir.), cert. denied, 525 U.S. 1000 (1998); Troupe v. May Dep't 
Stores Co., 20 F.3d 734, 738 (7th Cir. 1994).
---------------------------------------------------------------------------

    The phrase ``or are required to be provided by a contractor's 
policy or other relevant laws'' is included to cover the situation 
where a contractor's policy or a relevant law (such as the Americans 
with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., as amended 
(ADA), and section 503) would require an alternative job assignment or 
job modification to be provided to an employee not affected by 
pregnancy, childbirth, or related medical condition but who is 
similarly restricted in his or her ability to perform the job. In such 
a situation, the existence of the policy or law (e.g., the ADA and 
Section 503) requiring reasonable accommodation or job modifications 
for the one class of employees--employees with disabilities who are not 
affected by pregnancy, childbirth, or related medical conditions--
requires that the contractor similarly provide such accommodations to 
pregnant employees who are similar in their ability or inability to 
work. Failure to do so is disparate treatment in violation of Executive 
Order 11246. The list in Sec.  60-20.5(b) is by no means exhaustive, 
but rather, contains a few illustrative examples. The relevant 
provisions of the EEOC's 2014 enforcement guidance on pregnancy 
discrimination as well as its Guidelines on Discrimination Because of 
Sex (29 CFR 1604.10) and Questions and Answers on the Pregnancy 
Discrimination Act (Appendix to part 1604 of 29 CFR) provide additional 
instruction.
    Proposed paragraph (c) addresses the provision of leave related to 
pregnancy, childbirth, or related medical conditions. Paragraph (c)(1) 
sets forth the general title VII principle that neither family nor 
medical leave, including family or medical leave related to pregnancy, 
childbirth, or related medical conditions, may be denied or provided 
differently on the basis of sex. Paragraph (c)(2) elaborates on this 
general principle. Paragraph (c)(2)(a) requires that employees affected 
by pregnancy, childbirth, or related medical conditions be granted 
medical leave, including paid sick leave, on the same basis that such 
leave is granted to other employees unable to work for other medical 
reasons. An employer may not impose requirements on pregnancy leave not 
imposed on other employees similar in their ability or inability to 
work. For example, employers may not impose a shorter maximum amount of 
pregnancy leave as compared to the maximum time off allowed for other 
types of medical or short-term disability leave. Paragraph (c)(2)(b) 
requires that family leave be provided to men on the same terms that it 
is provided to women.
    Consistent with the EEOC's Guidelines on Discrimination Because of 
Sex, 29 CFR 1604.10(c), and Section I.B.2 of its recent enforcement 
guidance on pregnancy discrimination, proposed paragraph (c)(3) applies 
disparate impact analysis to contractor leave policies that are 
inadequate such that they have a disparate impact on members of one 
sex. Thus, a contractor that provides workers who are temporarily 
unable to work due to pregnancy, childbirth, or related medical 
conditions with no parental or medical leave at all, or with 
insufficient leave, may be held liable for discrimination based on sex, 
if such a practice is found to have an adverse impact on such workers, 
unless the contractor can demonstrate that the failure to provide leave 
or sufficient leave is job related and consistent with business 
necessity.
    It should be noted that this provision is different from current 
Sec.  60-20.3(g), which requires contractors to provide maternity leave 
whether or not their failure to do so has a disparate impact on women. 
However, OFCCP has not enforced this requirement in Sec.  60-20.3(g) 
for some time. Instead, as was stated in its previous Federal 
Contractor Compliance Manual (FCCM), issued in 1988, OFCCP has:


[[Page 5258]]


consistent with the PDA, [current] 41 CFR 60-1.4(a), and the EEOC 
Guidelines on Discrimination Because of Sex, . . . implement[ed] the 
following policies:

    i. . . .
    ii. If the contractor's leave policy, or lack thereof, has an 
adverse impact on employees of one sex and is not justified by 
business necessity, it violates the Executive Order.\77\
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    \77\ U.S. Department of Labor, Office of Federal Contract 
Compliance Programs Federal Contract Compliance Manual (1988), ch. 
3, Sec.  3G01(h)(2) (on file with OFCCP) (hereinafter Previous 
FCCM). A version of this Manual (dated 1993, but containing the same 
language) is available at http://www.docstoc.com/docs/8387063/Federal-Contract (last accessed Oct. 7, 2014).

    Similarly, the current FCCM requires Compliance Officers to 
``examine whether the contractor's leave policy, or lack thereof, has 
an adverse impact on employees of one sex and is not justified by 
business necessity.'' Section 2H01(b). Thus, proposed paragraph (c)(3) 
is consistent both with OFCCP's current and long-standing practice.
    OFCCP welcomes comments from stakeholders about current practices 
and policies regarding workplace accommodations and leave for 
pregnancy, childbirth, or related medical conditions; for care for 
newborn or newly adopted or foster children; and for an employee's 
serious health conditions (other than those related to pregnancy and 
childbirth).

Section 60-20.6 Other Fringe Benefits

    Current Sec.  60-20.6 entitled ``Affirmative action'' has been 
removed because the requirements related to affirmative action programs 
are set forth in parts 60-2 and 60-4 of this title.
    This proposed section is new and is divided into three paragraphs. 
Proposed paragraph (a) states the general principle that contractors 
may not discriminate on the basis of sex in the provision of fringe 
benefits. Proposed paragraph (b) defines ``fringe benefits'' broadly to 
encompass a variety of such benefits that are now provided by 
contractors. In proposed paragraph (c), OFCCP replaces the inaccurate 
statement found at current Sec.  60-20.3(c) that a contractor will not 
be considered to have violated the Executive Order if its contributions 
for fringe benefits are the same for men and women or if the resulting 
benefits are equal. In 1978, the Supreme Court held that under title 
VII, an employer must provide equal benefits to men and women, even if 
doing so costs more for one sex than the other. City of Los Angeles v. 
Manhart, 435 U.S. 702 (1978); see also Ariz. Governing Comm. v. Norris, 
463 U.S. 1073 (1983).\78\
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    \78\ Indeed, the FCCM follows current law, providing that ``if 
the contractor is not providing equal fringe benefits and/or not 
making equal contributions to insurance plans or pensions for men 
and women, this may constitute discrimination.'' FCCM, ch. 2, Sec.  
2L03. The Previous FCCM also noted the discrepancy between OFCCP's 
regulations and title VII law, providing (in chapter 3, Sec.  
3G01(h)(3)) that because--
    OFCCP's policy is to interpret the nondiscrimination provisions 
of the Executive Order consistent with Title VII principles. . . , 
if [an OFCCP compliance officer] becomes aware of a situation where 
a contractor is either not paying equal fringe benefits and/or not 
making equal contributions to fringe benefits for men and women, the 
matter should be brought to the attention of RSOL [the Regional 
Solicitor of Labor].
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Section 60-20.7 Employment Decisions Made on the Basis of Sex-Based 
Stereotypes

    This proposed section is new. It states the well-recognized 
principle that employment decisions made on the basis of stereotypes 
about how males and/or females are expected to look, speak, or act are 
a form of sex-based employment discrimination. As the Supreme Court 
stated in Price Waterhouse v. Hopkins, 490 U.S. at 251, ``we are beyond 
the day when an employer can evaluate employees by assuming or 
insisting that they match the stereotype associated with their . . . 
[sex].'' In Price Waterhouse, the Court held that an employer's failure 
to promote a female senior manager to partner because of the sex-
stereotyped perceptions that she was too aggressive and did not ``walk 
more femininely, talk more femininely, dress more femininely, wear 
make-up, have her hair styled, and wear jewelry'' was unlawful sex-
based employment discrimination.\79\ The principle that sex-based 
stereotyping is a form of sex discrimination has been applied 
consistently in Supreme Court and lower-court decisions. See, e.g., 
Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 (2003) (stereotype-
based beliefs about the allocation of family duties on which state 
employers relied in establishing discriminatory leave policies held to 
be sex discrimination under the Constitution); Chadwick v. Wellpoint, 
Inc., 561 F.3d 38 (1st Cir. 2009) (making employment decision based on 
the belief that women with young children neglect their job 
responsibilities is unlawful sex discrimination); Prowel v. Wise Bus. 
Forms, Inc., 579 F.3d 285 (3d Cir. 2009) (harassment based on a man's 
effeminacy); Terveer v. Billington, 2014 WL 1280301 (D. DC March 31, 
2014) (hostile work environment based on stereotyped beliefs about the 
appropriateness of same-sex relationships).\80\ Cf. U.S. v. Virginia, 
518 U.S. 515, 533 (1996) (in making classifications based on sex, state 
governments ``must not rely on overbroad generalizations about the 
different talents, capacities, or preferences of males and 
females'').\81\ Specific examples of such stereotyping follow in 
proposed paragraphs (a) through (c).
---------------------------------------------------------------------------

    \79\ Price Waterhouse, 490 U.S. at 235.
    \80\ See also Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 
2002) (``Sexual orientation harassment is often, if not always, 
motivated by a desire to enforce heterosexually defined gender 
norms. In fact, stereotypes about homosexuality are directly related 
to our stereotype about the proper roles of men and women.''); 
Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. 
Or. 2002) (``[A] jury could find that Cagle repeatedly harassed (and 
ultimately discharged) Heller because Heller did not conform to 
Cagle's stereotype of how a woman ought to behave. Heller is 
attracted to and dates other women, whereas Cagle believes that a 
woman should be attracted to and date only men.''). The EEOC has 
recognized in a long line of federal sector decisions that adverse 
actions taken on the basis of sex stereotypes related to sexual 
orientation violate Title VII. Castello v. U.S. Postal Service, EEOC 
Request No. 0520110649, 2011 WL 6960810 (Dec. 20, 2011) (sex-
stereotyping evidence entailed offensive comment by manager about 
female subordinate's relationships with women); Veretto v. U.S. 
Postal Service, EEOC Appeal No. 0120110873, 2011 WL 2663401 (July 1, 
2011) (complainant stated plausible sex-stereotyping claim alleging 
harassment because he married a man); Culp v. Dep't of Homeland 
Security, EEOC Appeal 0720130012, 2013 WL 2146756 (May 7, 2013) 
(Title VII covers discrimination based on associating with lesbian 
colleague); Couch v. Dep't of Energy, EEOC Appeal No. 0120131136, 
2013 WL 4499198, at *8 (Aug. 13, 2013) (complainant's claim of 
harassment based on his ``perceived sexual orientation''); 
Complainant v. Department of Homeland Security, EEOC Appeal No. 
0120110576, 2014 WL 4407422 (Aug. 20, 2014) (``While Title VII's 
prohibition of discrimination does not explicitly include sexual 
orientation as a basis, Title VII prohibits sex discrimination, 
including sex-stereotyping discrimination and gender 
discrimination'' and ``sex discrimination claims may intersect with 
claims of sexual orientation discrimination.'').
    \81\ The U.S. Court of Appeals for the Seventh Circuit 
articulated this principle as early as 1971. Sprogis v. United Air 
Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971) (``In forbidding 
employers to discriminate against individuals because of their sex, 
Congress intended to strike at the entire spectrum of disparate 
treatment of men and women resulting from sex stereotypes.'') 
(emphasis added).

---------------------------------------------------------------------------

    Proposed paragraphs 60-20.7(a), (b), and (c) address stereotyping 
based on an employee's nonconformity with norms about how people with 
the employee's assigned sex at birth should look, speak, and act. 
Paragraph (a) sets forth three examples of such stereotyping: in 
proposed paragraph 60-20.7(a)(1), failure to promote female employee 
because she did not wear jewelry, make-up, or high heels (see Price 
Waterhouse, supra); in proposed paragraph 60-20.7(a)(2), harassment of 
a man because he is too effeminate, (see Prowel v. Wise Bus. Forms, 
Inc., supra); and in proposed paragraph 60-20.7(a)(3), adverse 
treatment of an employee because he or she does not conform to sex-role 
expectations by being in a

[[Page 5259]]

relationship with a person of the same sex (see Veretto v. U.S. Postal 
Service and Castello v. U.S. Postal Service, supra note 80).
    Paragraph (b) addresses disparate treatment based on gender 
identity. As noted above, disparate treatment of a transgender employee 
may constitute discrimination because of the individual's non-
conformity to sex-based stereotypes. Barnes v. City of Cincinnati, 401 
F.3d 729 (6th Cir. 2005) (holding that transgender woman was a member 
of a protected class based on her failure to conform to sex-based 
stereotypes and thus her title VII claim was actionable); Smith v. City 
of Salem, 378 F.3d 566, 574 (6th Cir. 2004) (``discrimination against a 
plaintiff who is a transsexual [sic]--and therefore fails to act and/or 
identify with his or her gender--is no different from the 
discrimination directed against [the plaintiff] in Price Waterhouse 
who, in sex-stereotypical terms, did not act like a woman''); Schroer 
v. Billington, supra, at 305-06 (D.D.C. 2008) (withdrawal of a job 
offer from a transgender applicant constituted sex-stereotyping 
discrimination in violation of title VII). In addition to these 
appellate cases, ``[t]here has likewise been a steady stream of 
district court decisions recognizing that discrimination against 
transsexuals [sic] on the basis of sex-based stereotyping constitutes 
discrimination because of sex.'' Macy v. Holder, supra. See also Glenn 
v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (termination of a transgender 
employee constituted discrimination on the basis of gender non-
conformity and sex-stereotyping discrimination under Equal Protection 
Clause). Cf. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 78 
(1998) (same-sex harassment may be sex discrimination); Prowel v. Wise 
Bus. Forms, 579 F.3d 285 (3d Cir. 2009) (harassment of an 
``effeminate'' man may be sex discrimination).\82\ This principle--that 
discrimination against a transgender individual is discrimination based 
on non-conformity to sex-based stereotypes, and thus sex 
discrimination--has also been adopted under the Gender-Motivated 
Violence Act,\83\ Schwenk v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 
2000), and the Equal Credit Opportunity Act,\84\ Rosa v. Park W. Bank & 
Trust Co., 214 F.3d 213, 215-16 (1st Cir. 2000).
---------------------------------------------------------------------------

    \82\ See also Statement of Interest of the United States at 4, 
Apr. 4, 2014, in Burnett v. City of Philadelphia, No. 09-4348 (E.D. 
Pa.) (``Since Price Waterhouse, in cases where the defendant's 
action had been motivated by the plaintiff's failure to conform with 
sex-based stereotypes, every Federal circuit court of appeals that 
has addressed the question has recognized that disparate treatment 
against a transgender plaintiff can be discrimination `because . . . 
of sex.' '').
    \83\ 42 U.S.C. 13981.
    \84\ 15 U.S.C. 1691.
---------------------------------------------------------------------------

    Paragraph 60-20.7(c) addresses stereotyping based on specific 
expectations about the proper roles of women and men regarding 
caregiving. As noted above, the EEOC recognizes that adverse treatment 
of women stemming from sex-based assumptions about ``childcare 
responsibilities that will make female employees less dependable than 
male employees'' violates title VII.\85\ Even an employer's perceptions 
of a caregiver's work performance can, consciously or unconsciously, be 
affected by sex-based stereotypes that female caregivers are ``less 
capable and skilled than their childless female counterparts or their 
male counterparts'' (Caregiving Guidance, II.A.4). Moreover--
---------------------------------------------------------------------------

    \85\ EEOC, Enforcement Guidance: Unlawful Disparate Treatment of 
Workers with Caregiving Responsibilities II.A.3 (last modified Feb. 
8, 2011), http://www.eeoc.gov/policy/docs/caregiving.html (last 
accessed Oct. 2, 2014).

    Gender-based stereotypes may also influence how male workers are 
perceived: ``Stereotypes about women's domestic roles are reinforced 
by parallel stereotypes presuming a lack of domestic 
responsibilities for men. These mutually reinforcing stereotypes 
created a self-fulfilling cycle of discrimination.'' Stereotypes of 
men as ``bread winners'' can further lead to the perception that a 
man who works part time is not a good father, even if he does so to 
care for his children. Thus, while working women have generally 
borne the brunt of gender-based stereotyping, unlawful assumptions 
about working fathers and other male caregivers have sometimes led 
employers to deny male employees opportunities that have been 
provided to working women or to subject men who are primary 
caregivers to harassment or other disparate treatment. For example, 
some employers have denied male employees' requests for leave for 
---------------------------------------------------------------------------
childcare purposes even while granting female employees' requests.

Caregiving Guidance II.C [footnotes omitted].
    In its introduction, the Caregiving Guidance also notes that 
discrimination against caregivers may also fall under the ADA, which 
prohibits discrimination based on an employee's association with an 
individual with a disability. The same is true of section 503.

Section 60-20.8 Harassment and Hostile Work Environments

    This proposed section is new. It has been well-recognized for many 
years that harassment on the basis of sex, including the existence of a 
work environment that is hostile to members of one sex, may give rise 
to a violation of title VII.\86\ Moreover, sexual harassment continues 
to be a serious problem for women in the workplace \87\ and a 
significant barrier to women's entry into and advancement in many 
nontraditional occupations, including the construction trades and the 
computer and information technology industries. Yet, current part 60-20 
does not include any references to sexual harassment or hostile work 
environments. Proposed Sec.  20.8 remedies this omission.\88\
---------------------------------------------------------------------------

    \86\ U.S. Equal Employment Opportunity Commission Guidelines on 
Discrimination Because of Sex, 41 CFR 1604.11 (1980) (provision on 
harassment); Harris v. Forklift Sys., 510 U.S. 17 (1993); Meritor 
Savings Bank v. Vinson, 477 U.S. 57 (1986); Barnes v. Costle, 561 
F.2d 983 (D.C. Cir. 1977).
    \87\ In FY 2013, the EEOC received 7,256 sexual harassment 
charges (out of 93,727). U.S. Equal Employment Opportunity 
Commission, Enforcement & Litigation Statistics, Sexual Harassment 
Charges FY 2010--2013, available at http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm (last accessed Nov. 
2, 2014); U.S. Equal Employment Opportunity Commission, Enforcement 
and Litigation Statistics, Charge Statistics: FY 1997 Through FY 
2013, available at http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last accessed Nov. 2, 2014). In FY 2011 (the last year 
for which combined data is available), the EEOC and state and local 
fair employment practices agencies together received just over 
11,300 charges of sexual harassment. The average number of such 
claims filed per year from FY 2000 through FY 2011 was 13,446. OFCCP 
calculations from data in U.S. Equal Employment Opportunity 
Commission, Enforcement & Litigation Statistics, Sexual Harassment 
Charges: EEOC & FEPAs Combined: FY 1997--FY 2011, available at 
http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm (last accessed Nov. 2, 2014).
    \88\ The one reference to harassment in OFCCP's current body of 
regulations implementing Executive Order 11246 is that construction 
contractors are required to ``[e]nsure and maintain a working 
environment free of harassment, intimidation, and coercion at all 
sites.'' 41 CFR 60-4.3(a) (subsections 7(a) and (n) of the required 
Equal Opportunity Clause for construction contracts).
    In addition, in chapter 3, Sec.  2H01(d), the FCCM recognizes 
that ``[a]lthough not specifically mentioned in the Guidelines, 
sexual harassment (as well as harassment on the basis of race, 
national origin or religion) is a violation of the nondiscrimination 
provisions of the Executive Order'' and directs OFCCP compliance 
officers to ``be alert for any indications of such harassment.'' It 
goes on to state that ``OFCCP follows Title VII principles when 
determining whether sexual harassment has occurred.''
---------------------------------------------------------------------------

    Proposed paragraph 60-20.8(a) incorporates the provision of EEOC's 
Guidelines relating to sexual harassment virtually verbatim. See 29 CFR 
1604.11(a). Inclusion of the EEOC language is intended to align the 
prohibitions of sexually harassing conduct under the Executive Order 
with the prohibitions under title VII.
    Proposed paragraph 60-20.8(b) defines harassment because of sex 
under the Executive Order broadly to include sexual harassment 
(including sexual

[[Page 5260]]

harassment based on gender identity), harassment based on pregnancy, 
childbirth, or related medical conditions, and harassment that is not 
sexual in nature but is because of sex (including harassment based on 
gender identity). This aligns the meaning of ``because of sex'' for 
purposes of sexual harassment with its meaning under current title VII 
and Executive Order law. See proposed Sec.  60-20.2, which includes 
discrimination on the bases of pregnancy, childbirth, or related 
medical conditions and gender identity discrimination as types of sex 
discrimination.
    Proposed paragraph 60-20.8(c) suggests as best practices procedures 
that contractors may develop and implement ``to ensure an environment 
in which all employees feel safe, welcomed, and treated fairly . . . 
[and] are not harassed because of sex.'' The suggested procedures are: 
Broad dissemination of the message ``that harassing conduct will not be 
tolerated'' (paragraph 60-20.8(c)(1)); anti-harassment training 
(paragraph 60-20.8(c)(2)); and procedures for handling and resolving 
complaints ``about harassment and intimidation based on sex'' 
(paragraph 60-20.8(c)(3)). Contractors are not required to use such 
procedures and will not be found in violation of this part for not 
using such procedures. We note, however, that using such procedures may 
assist contractors in meeting their obligations with respect to 
harassment and hostile work environments. Procedures such as these are 
key to preventing harassment before it occurs.
    In addition, a contractor can avoid or reduce liability for certain 
sexually harassing acts committed by its supervisors if it can show 
that it has taken reasonable care to prevent and correct 
harassment.\89\ The activities listed in paragraph 60-20.8(c) are the 
kinds of activities that would help a contractor in making that 
showing. For example, taking reasonable care ``generally requires 
establish[ing], disseminat[ing], and enforcing an anti-harassment 
policy and complaint procedure.'' \90\ The law does not require such 
activities, but it does encourage employers to engage in them.
---------------------------------------------------------------------------

    \89\ The Supreme Court established this affirmative defense in 
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and 
Faragher v. City of Boca Raton, 524 U.S. 775 (1998). See also U.S. 
Equal Employment Opportunity Commission, Enforcement Guidance on 
Vicarious Employer Liability for Unlawful Harassment by Supervisors 
(July 18, 1999), available at http://www.eeoc.gov/policy/docs/harassment.html (last accessed Oct. 7, 2014) [hereinafter EEOC 
Guidance on Vicarious Liability for Unlawful Harassment].
    \90\ EEOC Guidance on Vicarious Liability for Unlawful 
Harassment, supra note 89, Sec.  V(C).
---------------------------------------------------------------------------

Regulatory Procedures

Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives, and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity).
    Executive Order 13563 directs agencies to propose or adopt a 
regulation only upon a reasoned determination that its benefits justify 
its costs; tailor the regulation to impose the least burden on society, 
consistent with obtaining the regulatory objectives; and in choosing 
among alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.
    This proposed rule has been designated a ``significant regulatory 
action'' although not economically significant, under Sec.  3(f) of 
Executive Order 12866. The NPRM is not economically significant, as it 
will not have an annual effect on the economy of $100 million or more. 
The Office of Management and Budget has reviewed the NPRM.
The Need for the Regulation
    OFCCP's longstanding policy is to follow title VII principles when 
conducting analyses of potential sex discrimination under Executive 
Order 11246. See Notice of Final Rescission, 78 FR 13508, February 28, 
2013. However, the existing Sex Discrimination Guidelines, unchanged 
since their initial promulgation in 1970 and re-issuance in 1978, are 
no longer an accurate depiction of current title VII principles. Title 
VII has been significantly amended four times since that time, and the 
Supreme Court has issued several decisions clarifying that practices 
such as sexual harassment can be unlawful discrimination. In light of 
these changes, this proposed rule revises the current Guidelines, and 
replaces them with new sex discrimination regulations that accurately 
set forth a contractor's obligation not to discriminate on the basis of 
sex in accordance with current title VII principles. (A more detailed 
discussion of the need for the regulation is contained in Reasons for 
Amending the Current Sex Discrimination Guidelines, supra.)
Discussion of Impacts
    In this section, OFCCP presents a summary of the costs associated 
with the new requirements in part 60-20. Comments are welcome on every 
aspect of the cost and burden calculations including but not limited to 
the amount of time contractors would spend on complying with the 
proposals in this NPRM, including those related to accommodations for 
light duty. The estimated labor cost to contractors and subcontractors 
is based on U.S. Department of Labor, Bureau of Labor Statistics (BLS) 
data in the publication ``Employer Costs for Employee Compensation'' 
issued in December 2013, which lists total compensation for Management, 
Professionals, and Related Occupations as $51.58 per hour.\91\
---------------------------------------------------------------------------

    \91\ Press Release, Bureau of Labor Statistics, U.S. Department 
of Labor, Employer Costs for Employee Compensation--December 2013, 
at 4, available at http://www.bls.gov/news.release/pdf/ecec.pdf 
(last accessed Oct. 6, 2014).
---------------------------------------------------------------------------

    There are approximately 500,000 contractor firms, employing 
approximately 65 million employees, registered in the SAM. Therefore, 
OFCCP estimates that 500,000 contractor companies or firms may be 
affected by the proposed new provisions.\92\ The SAM number results in 
an overestimation for several reasons: the system captures firms that 
do not meet the $10,000 jurisdictional dollar threshold for this 
proposed rule; it captures inactive contracts, although OFCCP's 
jurisdiction covers only active contracts; and it captures thousands of 
recipients of Federal grants and Federal financial assistance, which 
are not contractors.\93\
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    \92\ U.S. General Services Administration, System for Award 
Management, Legacy CCR Extracts Public (``FOIA'') Data Package, May 
2014, available at https://www.sam.gov/portal/public/SAM/(last 
accessed June 14, 2014).
    \93\ In addition to these reasons to believe that the SAM data 
yield an overestimate of the number of entities affected by this 
rule, there is at least one reason to believe the data yield an 
underestimate: SAM does not necessarily include all subcontractors. 
But this data limitation is offset somewhat because of the overlap 
among contractors and subcontractors; a firm may be a subcontractor 
on some activities but have a contract on others and thus in fact be 
included in the SAM data.

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[[Page 5261]]

Cost of Regulatory Familiarization
    Agencies are required to include in the burden analysis the 
estimated time it takes for contractors to review and understand the 
instructions for compliance. See 5 CFR 1320.3(b)(1)(i). In order to 
minimize this burden, OFCCP will publish compliance assistance 
materials including, but not limited to, fact sheets and ``Frequently 
Asked Questions.'' OFCCP will also host webinars for the contractor 
community that will describe the new requirements and conduct listening 
sessions to identify any specific challenges contractors believe they 
face, or may face, when complying with the requirements.
    Based on its experience with Federal contractors' compliance with 
the laws OFCCP enforces, OFCCP believes that human resources or 
personnel managers at each contractor establishment or firm will become 
responsible for understanding or becoming familiar with the new 
requirements. Therefore, OFCCP estimates that it will take 60 minutes 
or 1 hour for a management professional at each contractor 
establishment to either read the compliance assistance materials 
provided by OFCCP or participate in an OFCCP webinar to learn more 
about the new requirements. Consequently, the estimated burden for rule 
familiarization is 500,000 hours (500,000 contractor companies x 1 hour 
= 500,000 hours). Based on data from the Bureau of Labor Statistics, 
which lists total compensation for the Management, Professional, and 
Related Occupations group at $51.58,\94\ we calculate the total 
estimated cost as $25,790,000 (500,000 hours x $51.58/hour = 
$25,790,000) or $52 per contractor company.
---------------------------------------------------------------------------

    \94\ See supra note 91 and accompanying text.
---------------------------------------------------------------------------

Cost of Proposed Provisions
    The NPRM proposes revising the current Sex Discrimination 
Guidelines to replace them with regulations that set forth requirements 
that Federal contractors and subcontractors and federally assisted 
construction contractors and subcontractors must meet in fulfilling 
their obligations under Executive Order 11246, as amended, to ensure 
nondiscrimination in employment on the basis of sex. In order to reduce 
the burden and increase understanding, the NPRM includes examples of 
prohibited employment practices with each of the provisions.
    The NPRM proposes changing the title of the regulation to provide 
clarity that the provisions in part 60-20 are regulations implementing 
Executive Order 11246. The title change does not incur burden.
    The NPRM proposes minor edits to Sec.  60-20.1, including deleting 
a sentence explaining the reason for promulgating this part of the 
regulation, and modifying the sentence notifying the public that part 
60-20 is to be read in connection with existing regulations. These 
minor edits update the regulations and provide clarity. Because the 
edits do not cause additional action on the part of contractors, no 
additional burden is associated with this section.
    Section 60-20.2, General Prohibitions, of the NPRM proposes 
removing the current section ``Recruitment and advertisement'' section 
and replacing it with a section that articulates the general 
prohibition against sex discrimination in employment. The general 
prohibition against sex discrimination in employment is not a new 
provision and as such does not require any additional action on the 
part of Federal contractors, subcontractors, or federally assisted 
construction contractors or subcontractors. Thus no burden is assessed 
for this provision.
    The NPRM proposes replacing the current Sec.  60-20.3 (Job policies 
and practices) with ``Sex as a bona fide occupational qualification.'' 
In this section, the NPRM proposes to consolidate in one provision the 
current references to the BFOQ defense available to employers and 
update the language set forth in title VII. This reorganization is 
intended to make it easier for Federal contractors, subcontractors, and 
federally assisted construction contractors and subcontractors to 
locate and understand the BFOQ defense. This section reorganizes 
existing information and does not incur additional burden. Thus no 
burden is assessed for this provision.
    Section 60-20.4 proposes to replace the current provision 
addressing seniority systems with a section addressing discrimination 
in compensation practices. The proposed section provides clear guidance 
to covered contractors on their obligation to provide equal opportunity 
with respect to compensation. It provides guidance on determining 
similarly situated employees and confirms that OFCCP follows title VII 
principles in investigating compensation discrimination. The provisions 
do not create new requirements; rather, they clarify existing 
provisions regarding compensation discrimination, thus reducing 
confusion that may have resulted in the analysis of compensation 
discrimination.\95\ Therefore no new burden or new benefit (beyond 
confusion reduction) is created by this provision.
---------------------------------------------------------------------------

    \95\ The existing Sec.  60-20.5 addressed discriminatory wages. 
The proposed Sec.  60-20.4 incorporates that existing requirement 
and updates it to be consistent with current title VII law.
---------------------------------------------------------------------------

    The NPRM proposes to address discrimination on the basis of 
pregnancy, childbirth, or related medical conditions in Section 60-
20.5.
    Subsection 60-20.5(a) prohibits discrimination on the basis of 
pregnancy, childbirth, or related medical conditions, including 
childbearing capacity. This clarifies current law that discrimination 
based on any of these factors is prohibited under Executive Order 11246 
and as such does not generate new burden or new benefits (with the 
exception of reduced confusion).
    Subsection 60-20.5(b) provides a non-exhaustive list of examples of 
unlawful pregnancy discrimination, including refusing to hire pregnant 
applicants; firing an employee or requiring an employee to go on leave 
because the employee becomes pregnant; limiting a pregnant employee's 
job duties based on pregnancy or requiring a doctor's note in order for 
a pregnant employee to continue employment; providing employees with 
health insurance that does not cover hospitalization and other medical 
costs related to pregnancy, childbirth, or related medical conditions 
when hospitalization is provided for other medical conditions; and 
denying an alternative job assignment, modified duties or other 
accommodations to a pregnant employee when such accommodations are 
provided or are required to be provided by a contractor's policy or by 
other relevant laws to other employees whose abilities or inabilities 
to work are similar. The clarification, including the examples provided 
in subsection 60-20.5(b), reduces contractors' confusion by harmonizing 
OFCCP's outdated regulations with current title VII jurisprudence. 
Although OFCCP believes that Federal contractors are already required 
to provide accommodations and light duty under title VII, because some 
courts disagree with this interpretation, see supra note 76 and 
accompanying text, it estimates that there will be some burden 
associated with this provision for contractors that did not provide 
accommodations or light duty in the past.
    To determine the burden of this accommodations provision, OFCCP 
first estimated the number of workers who may need an accommodation or 
light

[[Page 5262]]

duty during pregnancy. No specific data sets detail the characteristics 
of Federal contractor and subcontractor workers relating to pregnancy. 
Thus OFCCP relied on the data sets available for the general population 
and general labor force. OFCCP believes that the characteristics of the 
general labor force are similar to the Federal contractor workforce.
    In estimating the burden associated with the accommodations 
provision, OFCCP determined that there are approximately 65 million 
employees who work for the Federal contractors and other recipients of 
Federal monies that are included in the SAM database. Because the data 
does not indicate gender demographics, OFCCP used data from the Bureau 
of Labor Statistics that indicates that 47 percent of the workforce is 
female.\96\ According to National Center for Health Statistics (NCHS) 
data, there were 6,127,000 pregnancies among women ages 18 to 44 in the 
United States in 2009 among the general population.\97\ When compared 
to data from the U.S. Census for the same time period, that number of 
pregnancies reflects a pregnancy rate of approximately 10.9 
percent.\98\
---------------------------------------------------------------------------

    \96\ Women in the Labor Force, supra note 12, at 2.
    \97\ Centers for Disease Control and Prevention, National Center 
for Health Statistics, NCHS Data Brief No. 136: Pregnancy Rates for 
U.S. Women Continue to Drop 2 (2013) available at http://www.cdc.gov/nchs/data/databriefs/db136.pdf (last accessed Oct. 6, 
2014).
    \98\ This may be an overestimation of the number of pregnant 
workers because there is limited data available regarding the age of 
employees of federal contractors.
---------------------------------------------------------------------------

    OFCCP further refined this rate to reflect pregnancies of working 
women. NCHS's pregnancy rate did not distinguish between working and 
non-working women. Thus OFCCP turned to data from the U.S. Census. U.S. 
Census American Fact Finder does not report on pregnancy, but does 
report on births. Census data also shows whether the mother was in the 
labor force. As this is the best data available, OFCCP used the ratio 
of births among working and non-working mothers to determine the 
pregnancy rate of women in the workforce. Thus, OFCCP determined that 
the pregnancy rate for women in the workforce is approximately 61 
percent of the rate for women in the general population, translating to 
a pregnancy rate of 6.7 percent of women in the Federal contractor 
workforce.\99\ Based on the above, OFCCP estimates approximately 
2,046,850 women (four women per SAM contractor firm) in the Federal 
contractor workforce would be pregnant in a year.\100\
---------------------------------------------------------------------------

    \99\ U.S. Census Bureau, American Fact Finder, Women 16 to 50 
Years Who Had a Birth in the Past 12 Months by Marital Status and 
Labor Force Status, 2009 to 2011 American Community Survey 3-Year 
Estimates, available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_B13012&prodType=table (last 
accessed Aug. 1, 2014). The data table reports birth rates for women 
in labor force at 5.1 percent, compared to women not in the labor 
force at 8.4 percent. Comparing the two rates (5.1 percent to 8.1 
percent), the birth rate of women in the labor force was 61 percent 
that of women not in the labor force. Therefore, multiplying the 
pregnancy rate among women of working age, 10.9 percent, by 61 
percent results in a 6.7 percent pregnancy rate.
    \100\ Id.
---------------------------------------------------------------------------

    Not every pregnant employee in the Federal contractor workforce 
will require an accommodation that might involve more than a de minimis 
cost. Many will have no medical condition associated with their 
pregnancies that require such accommodation. Even for those who do have 
such conditions, the positions that require such accommodation 
generally involve physical exertion or standing; such positions are 
likely to be found in the job categories of craft workers, operatives, 
laborers, and service workers. Based on data from the Employer 
Information Report EEO-1, OFCCP estimates that 21 percent of women in 
the Federal contractor workforce are in such job categories. Thus, of 
the 2,046,850 women who may be pregnant, 429,839 are in positions in 
the job categories likely to require accommodations that might involve 
more than a de minimis cost.
    Reports from NIH show that the incidence of medical conditions 
during pregnancy that require accommodations ranges from 0.5 percent 
(placenta previa) to 50 percent (back issues).\101\ Thus, OFCCP 
estimates that of the approximately 429,839 women in positions that 
require physical exertion or standing, half or 214,920 may require some 
type of an accommodation or light duty.
---------------------------------------------------------------------------

    \101\ S. Malmqvist et.al., Prevalence of low back and pelvic 
pain during pregnancy (Abstract), J. Manipulative Physiological 
Therapy, National Center for Biotechnology Information (2012), 
available at http://www.ncbi.nlm.nih.gov/pubmed/22632586, (last 
accessed Oct. 6, 2014).
---------------------------------------------------------------------------

    The types of accommodations needed during pregnancy also vary. They 
range from time off for medical appointments and more frequent breaks 
to stools for sitting and assistance with heavy lifting.\102\ Reports 
from the W.K. Kellogg Foundation on women's child bearing experiences 
and the National Women's Law Center on accommodating pregnant workers 
show that the costs associated with accommodating pregnant workers are 
minimal and generally involve schedule adjustments or modified work 
duties.\103\ One study found that when faced with a pregnancy-related 
need for accommodation, between 62 percent and 74 percent of pregnant 
women asked their employer to address their needs. The study further 
found that between 87 percent and 95 percent of the pregnant women who 
requested an adjustment to their work schedule or job duties worked for 
employers that attempted to address those requests. The study 
specifically found that 63 percent of pregnant women who needed a 
change in duties such as less lifting or more sitting asked their 
employers to address that need, and 91 percent of those women worked 
for employers that attempted to address their needs.\104\ Based on this 
study, OFCCP believes that most employers do provide some form of 
accommodation when requested.
---------------------------------------------------------------------------

    \102\ Unlawful Discrimination Against Pregnant Workers and 
Workers with Caregiving Responsibilities: Meeting of the U.S. Equal 
Emp. Opportunity Comm'n 8 (Feb. 15, 2012) (statement of Dr. Stephen 
Benard, Professor of Sociology, Indiana University), available at 
http://www.eeoc.gov/eeoc/meetings/2-15-12/transcript.cfm (last 
accessed Oct. 6, 2014).
    \103\ Heavy Lift, supra note 51, at 12.
    \104\ Eugene Declerq et al., W.K. Kellogg Foundation, Listening 
to Mothers III: New Mothers Speak Out, 36, (2013).
---------------------------------------------------------------------------

    To determine the cost of accommodation or light duty imposed by the 
proposed rule, OFCCP considered the types of light duty or 
accommodations needed. Generally, providing light duty or accommodation 
for pregnancy involves adjusting work schedules or allowing more 
frequent breaks. OFCCP believes that these accommodations would incur 
little to no additional cost.
    Additional accommodations may involve either modifications to work 
environments (providing a stool for sitting rather than standing) or to 
job duties--for example, lifting restrictions. In making such an 
accommodation, Federal contractors have discretion regarding how they 
would make such modifications. For example, a contractor may provide an 
employee with an existing stool, or a contractor may have other 
employees assist when heavy lifting is required. To determine the cost 
of such accommodations, OFCCP referred to the Job Accommodation Network 
(JAN). JAN reports that the average cost of accommodation is $500.\105\
---------------------------------------------------------------------------

    \105\ Beth Loy, Job Accommodation Network, Workplace 
Accommodations: Low Cost, High Impact, available at http://askjan.org/media/lowcosthighimpact.html (last updated Sept. 1, 2014) 
(last accessed Oct. 6, 2014).
---------------------------------------------------------------------------

    As stated above, 63 percent of pregnant women who needed a change 
in duties related to less lifting or more

[[Page 5263]]

sitting requested such an accommodation from their employers. Thus, 
OFCCP estimates that 135,400 women (214,920 x 0.63) would have made 
such a request, and 91 percent, or 123,214 of those requests (135,400 x 
0.91) would have been addressed. In addition, OFCCP assumes that of the 
37 percent (79,520 women) who did not make such a request, had they 
made the request, the needs of 91 percent of them (72,364 women) would 
also have been addressed.\106\ Thus, this proposed rule would require 
covered contractors to accommodate the nine percent of women whose 
needs were not addressed. Therefore, OFCCP estimates that the cost, 
accounting for those pregnant women who made requests and those 
additional women who could make requests, would be $9,671,000 ((135,400 
- 123,214) + (79,520 - 72,364) x $500). Accounting for women's requests 
that could be made but may not be made is likely an overestimation of 
the cost of this accommodation. In addition, OFCCP believes that this 
cost estimate may also be an overestimate because contractors with 15 
or more employees are covered by a similar requirement found in title 
VII and 36 states have requirements that apply to employers with fewer 
than 15 employees.\107\ Although OFCCP seeks comments on all aspects of 
its calculation of burden and costs, the agency specifically seeks 
comments on the burden associated with providing accommodations to 
pregnant workers.
---------------------------------------------------------------------------

    \106\ OFCCP arrived at 79,250 by multiplying the 214,920 women 
by 37 percent.
    \107\ State laws covering employers with one employee: Alaska, 
Colorado, Hawaii, Maine, Michigan, Minnesota, Montana, New Jersey, 
North Dakota, Oklahoma, Oregon, South Dakota, Vermont, and 
Wisconsin; state laws covering employers with two employees: 
Wyoming; state laws covering employers with three employees: 
Connecticut; state laws covering employers with four employees: 
Delaware, Iowa, Kansas, New Mexico, New York, Ohio, Pennsylvania, 
and Rhode Island; state laws covering employers with five employees: 
California and Idaho; state laws covering employers with six 
employees: Indiana, Massachusetts, Missouri, New Hampshire, and 
Virginia; state laws covering employers with eight or more 
employees: Kentucky, Tennessee, and Washington; state laws covering 
employers with nine or more employees: Arkansas; state laws covering 
employers with 12 or more employees: West Virginia. In addition, the 
District of Columbia and Puerto Rico's laws cover employers with one 
employee.
---------------------------------------------------------------------------

    The NPRM proposes replacing the current Sec.  60-20.6 (Affirmative 
action) with a new section titled ``Other fringe benefits.'' The 
current section on affirmative action is unnecessary because the 
requirements related to affirmative action programs are set forth in 
parts 60-2 and 60-4. In the new Sec.  60-20.6, the NPRM proposes to 
clarify the existing requirement of nondiscrimination in fringe 
benefits, specifically with regard to application of that principle to 
contributions to and distributions from pension and retirement funds. 
The proposed section reflects the current state of title VII law with 
regard to pension funds, imposing no additional burden on contractors 
covered both by Executive Order 11246, as amended, and by title VII 
(which, generally, covers employers of 15 or more employees) or by 
state or local laws that similarly prohibit sex discrimination (many of 
which have lower coverage thresholds \108\). As to the remaining 
contractors--those that have fewer than 15 employees as defined by 
title VII, are not covered by state or local laws, and have at least 
$10,000 in Federal contracts or subcontracts--as noted in the 
discussion of this requirement elsewhere in the preamble, OFCCP's 
publicly available FCCM has put them on notice that OFCCP follows 
current law with regard to providing equal benefits and making equal 
contributions to pensions funds for men and women. Thus, as an existing 
requirement, this does not generate any new benefits (beyond reduced 
confusion) or additional burden.
---------------------------------------------------------------------------

    \108\ See note 99, supra.
---------------------------------------------------------------------------

    The NPRM proposes a new section, Sec.  60-20.7, titled ``Employment 
decisions made on the basis of sex-based stereotypes.'' This section 
explains the prohibition against making employment decisions on the 
basis of sex-based stereotypes, which the Supreme Court recognized in 
1989 as a form of sex discrimination under title VII. This section 
clarifies that such discrimination includes disparate treatment based 
on nonconformity to stereotypical expectations about gender identity, 
gender expression, and sexual orientation and stereotyping based on 
specific expectations about the proper roles of women and men regarding 
caregiving. The proposed section reflects the current state of title 
VII law with regard to sex-based stereotyping, imposing no additional 
burden on contractors covered both by Executive Order 11246, as 
amended, and by title VII or by state or local laws that similarly 
prohibit sex discrimination, many of which have lower coverage 
thresholds.\109\ As to the remaining contractors--those that have fewer 
than 15 employees as defined by title VII, are not covered by state or 
local laws, and have at least $10,000 in Federal contracts or 
subcontracts--as noted in the discussion of this requirement elsewhere 
in the preamble, OFCCP's publicly available FCCM has put them on notice 
that OFCCP follows current law with regard to sex-based stereotyping. 
The FCCM provides that:
---------------------------------------------------------------------------

    \109\ See note 99, supra.

    COs must examine whether contractor policies make prohibited 
distinctions in conditions of employment based on sex, including the 
basis of pregnancy, childbirth or related medical conditions, or on 
the basis of sex-based stereotypes, including those related to 
actual or perceived caregiver responsibilities. Contractors must not 
make employment decisions based on stereotypes about how males and 
females are ``supposed'' to look or act. Such employment decisions 
are a form of sex discrimination prohibited by Executive Order 
---------------------------------------------------------------------------
11246, as amended.

    FCCM, ch. 2, section 2H00(a).\110\ Thus, for these contractors as 
well, the proposed section imposes no additional burden and generates 
no new benefits for their employees.
---------------------------------------------------------------------------

    \110\ Another section of the FCCM also covers sex-based 
stereotyping:
    Sex-Based Stereotyping and Caregiver Discrimination. 
Differential treatment for an employment-related purpose based on 
sex-based stereotypes, including those related to actual or 
perceived caregiving responsibilities, is a violation of Title VII 
of the Civil Rights Act of 1964. For example, it is prohibited to 
deny advancement opportunities to similarly situated mothers that 
are provided to fathers or women without children, based on 
stereotypes about mothers in the workplace; it is also prohibited to 
deny to fathers access to family-friendly policies like workplace 
flexibility that employers provide to mothers, based on stereotypes 
about fathers' roles in care giving.
    FCCM, ch. 2, section 2H01(e).
---------------------------------------------------------------------------

    The NPRM proposes a new section, Sec.  60-20.8, titled ``Harassment 
and hostile work environments.'' This section explains the 
circumstances under which sex-based harassment and hostile work 
environments violate the Executive Order, reflecting principles 
established in Supreme Court title VII decisions beginning in 1986. 
This section clarifies that such discrimination includes ``sexual 
harassment (including harassment based on gender identity or 
expression), harassment based on pregnancy, childbirth, or related 
medical conditions,'' and sex-based harassment that is not sexual in 
nature but that is because of sex or where one sex is targeted for the 
harassment. The proposed section describes best practices that 
contractors may follow to reduce and eliminate harassment and hostile 
work environments but explicitly states that such practices are ``not 
required by this part.''
    The proposed section reflects the current state of title VII law 
with regard to sex-based harassment and hostile work environments, 
imposing no additional burden on contractors covered both by Executive 
Order 11246, as amended, and by title VII or by state or local laws 
that similarly prohibit sex

[[Page 5264]]

discrimination (many of which have lower coverage thresholds \111\). As 
to the remaining contractors--those that have fewer than 15 employees 
as defined by title VII, are not covered by state or local laws, and 
have at least $10,000 in Federal contracts or subcontracts--as noted in 
the discussion of this requirement elsewhere in the preamble, OFCCP's 
publicly available FCCM has put them on notice that OFCCP follows 
current law with regard to sex-based harassment and hostile work 
environments. The FCCM provides that:
---------------------------------------------------------------------------

    \111\ See note 99, supra.

    Although not specifically mentioned in the Guidelines, sexual 
harassment, as well as harassment based on race, color, national 
origin or religion is a violation of the nondiscrimination 
provisions of EO 11246. During the onsite review, COs must be alert 
for any indications of such harassment. OFCCP follows Title VII 
principles when determining whether sexual harassment has occurred.
FCCM, Chapter 2, Section 2H01(d). Thus, for these contractors as well, 
the proposed section imposes no additional burden and generates no new 
benefits for their employees.
    The total first year cost of the regulation is estimated at 
$35,461,000 or $71 per contractor company. Below, in Table 1, is a 
summary of the hours and costs:

              Table 1--Contractor Proposed New Requirements
------------------------------------------------------------------------
                 Section                   Burden hours        Costs
------------------------------------------------------------------------
Estimated One-Time Burden:
    Regulatory Familiarization..........         500,000     $25,790,000
    Total One-Time Burden...............         500,000      25,790,000
Estimated Recurring Burden:
    41 CFR 60-20.5: Light duty or                      0       9,671,000
     accommodation......................
    Total Annual Recurring Burden.......               0       9,671,000
                                         -------------------------------
        Total Burden....................         500,000      35,461,000
------------------------------------------------------------------------

Summary of Transfer and Benefits
    If the proposed rule decreases sex-based compensation 
discrimination, that effect may generate a transfer of value to 
employees from employers (if additional wages are paid out of profits) 
or taxpayers (if contractor fees increase to pay higher wages to 
employees). Contractors may also transfer any costs of providing 
pregnancy accommodations to employees, by not increasing wages or 
reducing other benefits (to the extent not prohibited by the Davis-
Bacon and Service Contract Acts). However, OFCCP does not currently 
have sufficient information to reliably estimate the potential transfer 
payments resulting from this proposed rule, and it requests public 
comment on data and methods to do so.

Analysis of Rulemaking Alternatives

    OFCCP considered a range of regulatory alternatives that would 
enable the agency to encourage voluntary compliance and effectively 
enforce the prohibition against sex discrimination. In addition to the 
approach proposed in the NPRM, OFCCP considered two alternative 
approaches. First, OFCCP considered maintaining the current guidelines 
with no changes. Second, OFCCP considered rescinding the existing 
guidelines without proposing new regulations. Each of these 
alternatives is discussed in further detail below. OFCCP seeks comments 
from stakeholders on the proposal in the NPRM, as well as each 
alternative, including OFCCP's assessment of the costs and benefits.
Alternative 1: Maintaining the Current Guidelines
    OFCCP considered maintaining the Sex Discrimination Guidelines with 
no changes. This alternative would impose no new costs and achieve no 
new benefits. However, as discussed above, the existing guidelines are 
extremely outdated and therefore do not provide sufficient or even 
accurate guidance to contractors regarding their nondiscrimination 
obligations. Thus, retaining the existing guidelines would have the 
negative effect of continuing to impose compliance costs on compliant 
contractors. It is true that, as discussed elsewhere in this preamble, 
the FCCM provides updated guidance in the areas of maternity leave, 
sex-based stereotyping, sexual harassment, and pensions. But even in 
these areas, the provisions of the Guidelines conflict with the FCCM 
and thus potentially sow confusion among the contractor community.
    As mentioned above, current Sec.  60-20.3(c) provides that a 
contractor will not be considered to have violated the Executive Order 
if its contributions for fringe benefits are the same for men and women 
or if the resulting benefits are equal. But in 1978, the Supreme Court 
held that under title VII, an employer must provide equal retirement 
benefits to men and women even if the contributions necessary to do so 
cost more for one sex than the other. While the FCCM recognizes this 
Supreme Court development, it is possible that contractors, especially 
new contractors confronted for the first time with the conflict between 
the outdated provisions in the Guidelines, on the one hand, and current 
title VII principles and the FCCM, on the other, may still be incurring 
legal fees or the cost of human resource professionals' time to 
reconcile this conflict. Moreover, maintaining the Sex Discrimination 
Guidelines with no changes would be inconsistent with Section 6 of 
Executive Order 13563, which requires agencies to engage in 
retrospective analyses of ``rules that may be outmoded, ineffective, 
insufficient, or excessively burdensome, and to modify, streamline, 
expand, or repeal them in accordance with what has been learned.''
Alternative 2: Rescinding but Not Replacing the Current Guidelines
    OFCCP considered rescinding the Sex Discrimination Guidelines but 
not proposing regulations to replace them. This alternative would have 
the benefit of removing from the Code of Federal Regulations provisions 
that are inconsistent with current title VII principles, such as the 
fringe benefit provision discussed above. Contractors would no longer 
need to expend resources to reconcile conflicts between the Sex 
Discrimination Guidelines and the current requirements of title VII 
law. However, this alternative would create a vacuum of guidance for 
contractors, requiring them to expend resources for a different 
reason--for example, to pay for lawyers' or human resource

[[Page 5265]]

professionals' time to provide guidance regarding their 
nondiscrimination obligations. That ad hoc approach would reduce 
consistency across contractors' practices and could increase the 
incidence of unintended noncompliance, potentially harming job 
applicants and employees.

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the business organizations and governmental jurisdictions subject to 
regulation.'' Public Law 96-354. To achieve that principle, the Act 
requires agencies promulgating proposed rules to prepare an initial 
regulatory flexibility analysis (IRFA) and to develop alternatives 
whenever possible, when drafting regulations that will have a 
significant impact on a substantial number of small entities. The Act 
requires the consideration for the impact of a proposed regulation on a 
wide-range of small entities including small businesses, not-for-profit 
organizations, and small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposal or 
final rule would have a significant economic impact on a substantial 
number of small entities.\112\ If the determination is that it would, 
then the agency must prepare a regulatory flexibility analysis as 
described in the RFA.\113\
---------------------------------------------------------------------------

    \112\ See 5 U.S.C. 603.
    \113\ Id.
---------------------------------------------------------------------------

    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. See 5 U.S.C. 605. The certification must include a 
statement providing the factual basis for this determination and the 
reasoning should be clear.
    OFCCP is publishing this initial regulatory flexibility analysis to 
aid stakeholders in understanding the small entity impacts of the 
proposed rule and to obtain additional information on the small entity 
impacts. OFCCP invites interested persons to submit comments on the 
following estimates, including the number of small entities affected by 
the NPRM, the compliance cost estimates, and whether alternatives exist 
that will reduce burden on small entities while still remaining 
consistent with the objective of the proposed rule.
    Why OFCCP is Considering Action: OFCCP is publishing this proposed 
rule in order to align its existing regulations related to sex 
discrimination with current law and address their application to 
current workplace practices and issues.
    Objectives of and Legal Basis for Rule: This proposed rule will 
provide guidance on how to comply with the nondiscrimination 
requirements of Executive Order 11246, as amended.
    Compliance Requirements of the Proposed Rule, Including Reporting 
and Recordkeeping: As explained in this proposed rule, the Sex 
Discrimination Guidelines at 41 CFR part 60-20 set forth 
interpretations and guidelines for implementing Executive Order 11246's 
nondiscrimination and affirmative action requirements related to sex. 
The guidelines have not been updated in more than 40 years. This NPRM 
is intended to update the requirements to reflect current statutory and 
case law. The requirements in Executive Order 11246 generally apply to 
any business or organization that (1) holds a single Federal contract, 
subcontract, or federally assisted construction contract in excess of 
$10,000; (2) has Federal contracts or subcontracts that, combined, 
total in excess of $10,000 in any 12-month period; or (3) holds 
Government bills of lading, serves as a depository of Federal funds, or 
is an issuing and paying agency for U.S. savings bonds and notes in any 
amount.
    This NPRM contains several provisions that could be considered to 
impose compliance requirements on contractors. Generally, contractors 
are prohibited from making employment decisions based upon gender, 
including decisions regarding compensation and fringe benefits. The 
NPRM updates the existing regulations to address, inter alia, 
discrimination on the basis of pregnancy, harassment, and employment 
decisions made on the basis of sex-based stereotypes. These revisions 
and updates are intended to bring OFCCP's regulations at part 60-20 in 
line with the current standards of title VII and thus reduce potential 
confusion among contractors, applicants and employees regarding which 
requirement applies to a particular situation.
    All small entities subject to Executive Order 11246 would be 
required to comply with all of the provisions of the NPRM. Such 
compliance requirements are more fully described above in other 
portions of this preamble. The following section analyzes the cost of 
complying with proposed requirements in the NPRM.
    Calculating Impact of the Proposed Rule on Small Business Firms: 
OFCCP must determine the compliance cost of this proposed rule on small 
contractor firms, and whether these costs will be significant for a 
substantial number of small contractor firms (i.e., small business 
firms that enter into contracts with the Federal Government). If the 
estimated compliance costs for affected small contractor firms are less 
than three percent of small contractor firms' revenues, OFCCP considers 
it appropriate to conclude that this proposed rule will not have a 
significant economic impact on the small contractor firms covered by 
Executive Order 11246. While OFCCP has chosen three percent as our 
significance criterion, using this benchmark as an indicator of 
significant impact may overstate the significance of such an impact, 
since the costs associated with prohibiting sex discrimination against 
employees and job applicants are expected to be mitigated to some 
degree by the benefits of the proposed rule. The benefits are discussed 
more fully in the preamble of this NPRM.
    The data sources used in the analysis of small business impact are 
the Small Business Administration's (SBA) Table of Small Business Size 
Standards,\114\ the Current Population Survey (CPS), and the U.S. 
Census Bureau's Statistics of U.S. Businesses (SUSB).\115\ Since 
Federal contractors are not limited to specific industries, OFCCP 
assessed the impact of this NPRM across the 19 industrial 
classifications.\116\ Because data limitations do not allow OFCCP to 
determine which of the small firms within these industries are Federal 
contractors, OFCCP assumes that these

[[Page 5266]]

small firms are not significantly different from the small Federal 
contractors that will be directly affected by the proposed rule.
---------------------------------------------------------------------------

    \114\ U.S. Small Business Administration, Firm Size Data, 
Statistics of U.S. Businesses, available at http://www.sba.gov/advocacy/849/12162#susb (last visited June 9, 2014).
    \115\ U.S. Census Bureau, Statistics of U.S. Businesses: Latest 
SUSB Annual Data, available at http://www.census.gov/econ/susb/ 
(last accessed June 9, 2014).
    \116\ Agriculture, Forestry, Fishing, and Hunting Industry 
(North American Industry Classification System (NAICS) 11, Mining 
NAICS 21, Utilities NAICS 22, Construction NAICS 23, Manufacturing, 
NAICS 31-33, Wholesale Trade NAICS 42, Retail Trade NAICS 44-45, 
Transportation and Warehousing NAICS 48-49, Information NAICS 51, 
Finance and Insurance NAICS 52, Real Estate and Rental and Leasing 
NAICS 53, Professional, Scientific, and Technical Services NAICS 54, 
Management of Companies and Enterprises NAICS 55, Administrative and 
Support and Waste Management and Remediation Services NAICS 56, 
Educational Services NAICS 61, Healthcare and Social Assistance 
NAICS 62, Arts, Entertainment, and Recreation NAICS 71, 
Accommodation and Food Services NAICS 72, Other Services NAICS 81.
---------------------------------------------------------------------------

    OFCCP used the following steps to estimate the cost of the proposed 
rule per small contractor firm as measured by a percentage of the total 
annual receipts. First, OFCCP used Census SUSB data that disaggregates 
industry information by firm size in order to perform a robust analysis 
of the impact on small contractor firms. OFCCP applied the SBA small 
business size standards to the SUSB data to determine the number of 
small firms in the affected industries. Then OFCCP used receipts data 
from the SUSB to calculate the cost per firm as a percent of total 
receipts by dividing the estimated annual cost per firm by the average 
annual receipts per firm. This methodology was applied to each of the 
industries, and the results by industry are presented in the summary 
tables below (see Tables 2-20).
    In sum, the increased cost of compliance resulting from the 
proposed rule is de minimis relative to revenue at small contractor 
firms, no matter their size. All of the industries had an annual cost 
per firm as a percent of receipts of far less than three percent. For 
instance, the manufacturing industry cost is estimated to range from 
0.00 percent for firms that have average annual receipts of 
approximately $985 million to 0.02 percent for firms that have average 
annual receipts of under $500,000. Management of companies and 
enterprises is the industry with the highest relative costs, with a 
range of 0.00 percent for firms that have average annual receipts of 
approximately $2 million to 0.30 percent for firms that have average 
annual receipts of under $24,000. Therefore, in no instance is the 
effect of the NPRM greater than three percent of total receipts, and in 
fact does not exceed 0.3 percent.
    Although OFCCP estimates the compliance costs are less than three 
percent of the average revenue per small contractor firm for each of 
the 19 industries, OFCCP seeks data and feedback from small firms on 
the factors and assumptions used in this analysis, such as the data 
sources, small business industries, NAICS codes and size standards, and 
the annual costs per firm as a percent of receipts. OFCCP seeks 
information about which data sources should be used to estimate the 
number of Federal small subcontractors. OFCCP also seeks information 
about the potential compliance cost estimates, such as any differences 
in compliance costs for small businesses as compared to larger 
businesses and any compliance costs that may not have been included in 
this analysis.
    Estimating the Number of Small Businesses Affected by the 
Rulemaking: OFCCP now sets forth its estimate of the number of small 
contractor firms actually affected by the proposed rule. This 
information is not readily available. The best source for the number of 
small contractor firms that are affected by this proposed rule is GSA's 
SAM. OFCCP used SAM data to estimate the number of affected small 
contractor firms since SAM data allow us to directly estimate the 
number of small contractor firms. Federal contractor status cannot be 
discerned from the SBA firm size data. It can only be used to estimate 
the number of small firms, not the number of small contractor firms. 
OFCCP used the SBA data to estimate the impact of the proposed 
regulation on a ``typical'' or ``average'' small firm in each of the 19 
industries. OFCCP then assumed that a typical small firm is similar to 
a small contractor firm. OFCCP believes that this NPRM will not have a 
significant economic effect on a substantial number of small 
businesses.
    Based on the most current SAM data available, if OFCCP defined 
``small'' as fewer than 500 employees, then there are 328,552 small 
contractor firms. If OFCCP defined ``small'' as firms with less than 
$35.5 million in revenues, then there are 315,902 small contractor 
firms. Thus, OFCCP established a range of 315,902 to 328,552 as the 
total number of small contractor firms. Of course, not all of these 
contractor firms will be impacted by the proposed rule; only those 
contractor firms that have active contracts of more than $10,000 and 
are not otherwise covered by title VII or similar state or local anti-
discrimination laws will be impacted. Thus this range is an 
overestimate of the number of firms affected by the proposed rule. As 
the proposed regulation applies to contractors covered by Executive 
Order 11246, OFCCP estimates that the range of small firms impacted is 
from 315,902 to 328,552.
    Relevant Federal Rules Duplicating, Overlapping, or Conflicting 
with the Rule: As discussed in the preamble above, OFCCP recognizes 
that title VII, like the Executive Order, prohibits employers from 
discriminating against employees and job applicants on the basis of 
sex. Thus some overlap exists between the two laws.\117\ In fact, OFCCP 
is proposing in this NPRM to eliminate conflict with title VII and 
current case law.
---------------------------------------------------------------------------

    \117\ Unlike title VII, Executive Order 11246 contains the 
additional requirement that Federal contractors engage in 
affirmative action to ensure that applicants are employed, and that 
employees are treated during employment, without regard to their 
sex, as well as their race, color, religion, sexual orientation, 
gender identity, or national origin.
---------------------------------------------------------------------------

    Alternatives to the Proposed Rule: As described above, OFCCP 
considered two alternatives. These alternatives would not be an 
effective or efficient way to enforce Executive Order 11246, as 
amended.
    Differing Compliance and Reporting Requirements for Small Entities: 
This NPRM provides for no differing compliance requirements for small 
entities. In its implementation of Executive Order 11246, as amended, 
OFCCP does provide different reporting requirements for small 
entities--for example, contractor companies with fewer than 50 
employees are not required to submit an EEO-1 Report or develop 
affirmative action programs. See 41 CFR 1.7, 1.40, and 2.1. In 
addition, the record retention period for smaller contractors is 
reduced. See 41 CFR 60-1.12.
    Clarification, Consolidation, and Simplification of Compliance and 
Reporting Requirements for Small Entities: This NPRM was drafted to 
state clearly the compliance requirements for all contractors subject 
to Executive Order 11246, as amended. The proposed rule does not 
contain any new reporting or recordkeeping requirements. The compliance 
provisions apply generally to all businesses covered by Executive Order 
11246, as amended; no rational basis exists for creating an exemption 
from compliance requirements for small businesses. OFCCP makes 
available a variety of resources to employers for understanding their 
obligations and achieving compliance.
    Use of Performance Rather Than Design Standards: This NPRM was 
written to provide clear guidelines to ensure compliance with the 
Executive Order requirements. Under the proposed rule, contractors may 
achieve compliance through a variety of means. OFCCP makes available a 
variety of resources to contractors for understanding their obligations 
and achieving compliance.
    Exemption from Coverage of the Rule for Small Entities: Executive 
Order 11246, as amended, establishes its own exemption requirements; 
therefore, OFCCP has no authority to exempt small businesses from the 
requirements of the Executive Order.

[[Page 5267]]

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

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Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that OFCCP consider the impact of paperwork and other information 
collection burdens imposed on the public. According to the 1995 
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement, unless it displays 
a currently valid OMB control number.
    OFCCP has determined that there is no new requirement for 
information collection associated with this proposed rule. This 
proposed rule clarifies and updates current part 60-20 and removes 
outdated provisions so that the requirements conform to current sex 
discrimination law. The information collection requirements contained 
in the existing Executive Order 11246 regulations are currently 
approved under OMB Control No. 1250-0001 (Construction Recordkeeping 
and Reporting Requirements) and OMB Control No. 1250-0003 
(Recordkeeping and Reporting Requirements--Supply and Service). 
Consequently, this proposed rule does not require review by the Office 
of Management and Budget under the authority of the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this NPRM does not include any Federal mandate that may result in 
excess of $100 million in expenditures by state, local, and tribal 
governments in the aggregate or by the private sector.

Executive Order 13132 (Federalism)

    OFCCP has reviewed this proposed rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' This proposed rule will not ``have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    This proposed rule does not have tribal implications under 
Executive Order 13175 that would require a tribal summary impact 
statement. The proposed rule would not have substantial direct effects 
on one or more Indian tribes, on the relationship between the Federal 
government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.

Effects on Families

    The undersigned hereby certifies that the NPRM would not adversely 
affect the well-being of families, as discussed under section 654 of 
the Treasury and General Government Appropriations Act, 1999. To the 
contrary, by better ensuring that working mothers do not suffer sex 
discrimination in compensation, benefits, or other terms and conditions 
of employment, and that working fathers do not suffer

[[Page 5277]]

discrimination on the basis of sex-based stereotypes about caregiver 
responsibilities, the NPRM would have a positive effect on the economic 
well-being of families, especially of families headed by single 
mothers.

Executive Order 13045 (Protection of Children)

    This NPRM would have no environmental health risk or safety risk 
that may disproportionately affect children.

Environmental Impact Assessment

    A review of this NPRM in accordance with the requirements of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
1500 et seq.; and DOL NEPA procedures, 41 CFR part 11, indicates the 
NPRM would not have a significant impact on the quality of the human 
environment. There is, thus, no corresponding environmental assessment 
or an environmental impact statement.

Executive Order 13211 (Energy Supply)

    This NPRM is not subject to Executive Order 13211. It will not have 
a significant adverse effect on the supply, distribution, or use of 
energy.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This NPRM is not subject to Executive Order 12630 because it does 
not involve implementation of a policy that has takings implications or 
that could impose limitations on private property use.

Executive Order 12988 (Civil Justice Reform Analysis)

    This NPRM was drafted and reviewed in accordance with Executive 
Order 12988 and will not unduly burden the Federal court system. The 
NPRM was: (1) Reviewed to eliminate drafting errors and ambiguities; 
(2) written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects in 41 CFR Part 60-20

    Civil rights, Discrimination in employment, Employment, Equal 
employment opportunity, Government procurement, Labor, Sex, Women.

Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.

    For the reasons set forth in the preamble, OFCCP proposes to revise 
41 CFR part 60-20 to read as follows:

PART 60-20--DISCRIMINATION ON THE BASIS OF SEX

Sec.
60-20.1 Purpose.
60-20.2 General prohibitions.
60-20.3 Sex as a bona fide occupational qualification.
60-20.4 Discriminatory compensation.
60-20.5 Discrimination on the basis of pregnancy, childbirth, or 
related medical conditions.
60-20.6 Other fringe benefits.
60-20.7 Employment decisions made on the basis of sex-based 
stereotypes.
60-20.8 Harassment and hostile work environments.

    Authority:  Sec. 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-1965 
Comp., p. 339 as amended by E.O. 11375, 32 FR 14303, 3 CFR 1966-1970 
Comp., p. 684; E.O. 12086, 43 FR 46501, 3 CFR 1978 Comp., p. 230; 
E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258; and E.O. 13672, 
79 FR 42971.


Sec.  60-20.1  Purpose.

    The purpose of this part is to set forth specific requirements that 
covered Federal Government contractors and subcontractors, including 
those performing work under federally-assisted construction contracts 
(``contractors''),\1\ must meet in fulfilling their obligations under 
Executive Order 11246, as amended, to ensure nondiscrimination on the 
basis of sex in employment. These regulations are to be read in 
conjunction with the other regulations implementing Executive Order 
11246, as amended, set forth in parts 60-1, 60-2, 60-3, 60-4, and 60-30 
of this chapter.
---------------------------------------------------------------------------

    \1\ This part also applies to entities that are ``applicants'' 
for Federal assistance involving a construction contract as defined 
in part 60-1 of this title.
---------------------------------------------------------------------------


Sec.  60-20.2  General prohibitions.

    (a) In general. It is unlawful for a contractor to discriminate 
against any employee or applicant for employment because of sex. The 
term sex includes, but is not limited to pregnancy, childbirth, or 
related medical conditions; gender identity; and transgender status.
    (b) Disparate treatment. Unless sex is a bona fide occupational 
qualification reasonably necessary to the normal operation of a 
contractor's particular business or enterprise, the contractor may not 
make any distinction based on sex in recruitment, hiring, firing, 
promotion, compensation, hours, job assignments, training, benefits, or 
other terms, conditions, or privileges of employment. Such unlawful 
sex-based discriminatory practices include, but are not limited to, the 
following:
    (1) Making a distinction between married and unmarried persons that 
is not applied equally to both sexes;
    (2) Denying women with children an employment opportunity that is 
available to men with children;
    (3) Firing, or otherwise treating adversely, unmarried women, but 
not unmarried men, who become parents;
    (4) Imposing any differences in retirement age or other terms, 
conditions, or privileges of retirement on the basis of sex;
    (5) Restricting job classifications on the basis of sex;
    (6) Maintaining seniority lines and lists based upon sex;
    (7) Recruiting or advertising for individuals for certain jobs on 
the basis of sex, including through use of gender-specific terms for 
jobs (such as ``lineman'');
    (8) Distinguishing on the basis of sex in apprenticeship or other 
formal or informal training programs; in other opportunities such as 
networking, mentoring, sponsorship, individual development plans, 
rotational assignments, and succession planning programs; or in 
performance appraisals that may provide the basis of subsequent 
opportunities;
    (9) Making any facilities and employment-related activities 
available only to members of one sex, except that if the contractor 
provides restrooms or changing facilities, the contractor must provide 
separate or single-user restrooms or changing facilities to assure 
privacy between the sexes;
    (10) Denying transgender employees access to the bathrooms used by 
the gender with which they identify; and
    (11) Treating an employee or applicant for employment adversely 
because he or she has undergone, is undergoing, or is planning to 
undergo sex-reassignment surgery or other processes or procedures 
designed to facilitate the adoption of a sex or gender other than the 
individual's designated sex at birth.
    (c) Disparate impact. Employment policies or practices that have an 
adverse impact on the basis of sex, and are not job related and 
consistent with business necessity, violate Executive Order 11246, as 
amended, and this part. Examples of policies or practices that may 
violate Executive Order 11246 in terms of their disparate impact on the 
basis of sex include, but are not limited to:
    (1) Minimum height and/or weight qualifications that are not 
necessary to the performance of the job and that negatively impact 
women substantially more than men;

[[Page 5278]]

    (2) Strength requirements that exceed the strength necessary to 
perform the job in question and that negatively impact women 
substantially more than men;
    (3) A policy prohibiting large equipment operators from using a 
restroom while on the job, which adversely impacts women, who may 
require the use of restrooms more than men; and
    (4) Conditioning entry into an apprenticeship program on passing a 
scored written test that has an adverse impact on women where the 
contractor cannot establish the validity of the test consistent with 
the Uniform Guidelines on Employee Selection Procedures, 41 CFR part 
60-3.


Sec.  60-20.3  Sex as a bona fide occupational qualification.

    Contractors may not hire and employ employees on the basis of sex 
unless sex is a bona fide occupational qualification (BFOQ) reasonably 
necessary to the normal operation of the contractor's particular 
business or enterprise.


Sec.  60-20.4  Discriminatory compensation.

    Compensation may not be based on sex. Contractors may not engage in 
any employment practice that denies equal wages, benefits, or any other 
forms of compensation, or equal access to earnings opportunities, on 
the basis of sex, on either an individual or systemic basis, including 
but not limited to the following:
    (a) Contractors may not pay different compensation to similarly 
situated employees on the basis of sex. For purposes of evaluating 
compensation differences, the determination of similarly situated 
employees is case specific. Relevant factors in determining similarity 
may include tasks performed, skills, effort, levels of responsibility, 
working conditions, job difficulty, minimum qualifications, and other 
objective factors. In some cases, employees are similarly situated 
where they are comparable on some of these factors, even if they are 
not similar on others.
    (b) Contractors may not grant or deny higher paying wage rates, 
salaries, positions, job classifications, work assignments, shifts, or 
development opportunities, or other opportunities on the basis of sex. 
Contractors may not grant or deny training, work assignments, or other 
opportunities that may lead to advancement in higher paying positions 
on the basis of sex.
    (c) Contractors may not provide or deny earnings opportunities 
because of sex, for example, by denying women equal opportunity to 
obtain regular and/or overtime hours, commissions, pay increases, 
incentive compensation, or any other additions to regular earnings.
    (d) Contractors may not implement compensation practices, including 
performance review systems, that have an adverse impact on the basis of 
sex and are not shown to be job related and consistent with business 
necessity.
    (e) A contractor will be in violation of Executive Order 11246 and 
this part any time it pays wages, benefits, or other compensation that 
is the result in whole or in part of the application of any 
discriminatory compensation decision or other practice described in 
this section.


Sec.  60-20.5  Discrimination on the basis of pregnancy, childbirth, or 
related medical conditions.

    (a) Discrimination on the basis of pregnancy, childbirth, or 
related medical condition, including childbearing capacity, is a form 
of unlawful sex discrimination. Contractors must treat people of 
childbearing capacity and those affected by pregnancy, childbirth, or 
related medical conditions the same for all employment-related 
purposes, including receipt of benefits under fringe-benefit programs, 
as other persons not so affected, but similar in their ability or 
inability to work. Related medical conditions include, but are not 
limited to, lactation; disorders directly related to pregnancy, such as 
preeclampsia (pregnancy-induced high blood pressure), placenta previa, 
and gestational diabetes; symptoms such as back pain; complications 
requiring bed rest; and the after-effects of a delivery. A contractor 
is not required to pay for health insurance benefits for abortion, 
except where the life of the mother would be endangered if the fetus 
were carried to term or except where medical complications have arisen 
from an abortion, provided that nothing herein precludes a contractor 
from providing abortion benefits or otherwise affects bargaining 
agreements in regard to abortion.
    (b) Examples of unlawful pregnancy discrimination include, but are 
not limited to:
    (1) Refusing to hire pregnant people or people of childbearing 
capacity, or otherwise subjecting such applicants or employees to 
adverse employment treatment, because of their pregnancy or 
childbearing capacity;
    (2) Firing a female employee or requiring her to go on leave 
because the employee becomes pregnant or has a child;
    (3) Limiting a pregnant employee's job duties based solely on the 
fact that she is pregnant, or requiring a doctor's note in order for a 
pregnant woman to continue employment while pregnant when doctors' 
notes are not required for employees who are similarly situated;
    (4) Providing employees with health insurance that does not cover 
hospitalization and other medical costs for pregnancy, childbirth, or 
related medical conditions, including contraceptive coverage, to the 
same extent that hospitalization and other medical costs are covered 
for other medical conditions; and
    (5) Denying an alternative job assignment, modified duties, or 
other accommodations to a pregnant employee who is temporarily unable 
to perform some of her job duties because of pregnancy, childbirth, or 
related medical conditions when such assignments, modifications, or 
other accommodations are provided, or are required to be provided by a 
contractor's policy or by other relevant laws, to other employees whose 
abilities or inabilities to perform their job duties are similarly 
affected.
    (c) Leave--(1) In general. To the extent that a contractor provides 
family, medical, or other leave, such leave must not be denied or 
provided differently on the basis of sex.
    (2) Disparate treatment. (i) A contractor must provide job-
guaranteed medical leave, including paid sick leave, for employees' 
pregnancy, childbirth, or related medical conditions on the same terms 
that medical or sick leave is provided for medical conditions that are 
similar in their effect on employees' ability to work.
    (ii) A contractor must provide job-guaranteed family leave, 
including any paid leave, for male employees on the same terms that 
family leave is provided for female employees.
    (3) Disparate impact. Contractors that have employment policies or 
practices under which insufficient or no medical or family leave is 
available must ensure that such policies or practices do not have an 
adverse impact on the basis of sex unless they are shown to be job 
related and consistent with business necessity.


Sec.  60-20.6  Other fringe benefits.

    (a) It shall be an unlawful employment practice for a contractor to 
discriminate on the basis of sex with regard to fringe benefits.
    (b) As used herein, ``fringe benefits'' includes, but is not 
limited to, medical, hospital, accident, life insurance and retirement 
benefits; profit-sharing and bonus plans; leave; dependent care 
assistance; educational assistance; employee discounts; stock options; 
lodging; meals; moving expense

[[Page 5279]]

reimbursements; retirement planning services; and transportation 
benefits.
    (c) The greater cost of providing a fringe benefit to members of 
one sex is not a defense to a contractor's failure to provide benefits 
equally to members of both sexes.


Sec.  60-20.7  Employment decisions made on the basis of sex-based 
stereotypes.

    Contractors must not make employment decisions on the basis of sex-
based stereotypes, such as stereotypes about how males and/or females 
are expected to look, speak, or act. Such employment decisions are a 
form of sex discrimination prohibited by Executive Order 11246, as 
amended. Examples of discrimination based on sex-based stereotyping 
include, but are not limited to:
    (a) Adverse treatment of an employee or applicant for employment 
because of that individual's failure to comply with gender norms and 
expectations for dress, appearance and/or behavior, such as:
    (1) Failure to promote a woman, or otherwise subjecting her to 
adverse employment treatment, based on sex stereotypes about dress, 
including wearing jewelry, make-up, or high heels;
    (2) Harassment of a man because he is considered insufficiently 
masculine, or effeminate; and
    (3) Adverse treatment of an employee because he or she does not 
conform to sex-role expectations by being in a relationship with a 
person of the same sex.
    (b) Adverse treatment of an employee or applicant for employment 
because of his or her actual or perceived gender identity or 
transgender status.
    (c) Adverse treatment of an employee or applicant for employment 
based on sex-based stereotypes about caregiver responsibilities. For 
example, adverse treatment of a female employee because of a sex-based 
assumption that she has (or will have) family caretaking 
responsibilities, and that those responsibilities will interfere with 
her work performance, is discrimination based on sex. Other examples of 
such discriminatory treatment include, but are not limited to:
    (1) Adverse treatment of a male employee because he has taken or is 
planning to take leave to care for his newborn or recently adopted or 
foster child based on the sex-stereotyped belief that women and not men 
should care for children;
    (2) Denying opportunities to mothers of children based on the sex-
stereotyped belief that women with children should not or will not work 
long hours, regardless of whether the contractor is acting out of 
hostility or belief that it is acting in the employee's or her 
children's best interest.
    (3) Evaluating the performance of female employees who have family 
caregiving responsibilities adversely, based on the sex-based 
stereotype that women are less capable or skilled than their male 
counterparts who do not have such responsibilities.


Sec.  60-20.8  Harassment and hostile work environments.

    (a) Harassment on the basis of sex is a violation of Executive 
Order 11246, as amended. Unwelcome sexual advances, requests for sexual 
favors, offensive remarks about a person's sex, and other verbal or 
physical conduct of a sexual nature constitute sexual harassment when:
    (1) Submission to such conduct is made either explicitly or 
implicitly a term or condition of an individual's employment;
    (2) Submission to or rejection of such conduct by an individual is 
used as the basis for employment decisions affecting such individual; 
or
    (3) Such conduct has the purpose or effect of unreasonably 
interfering with an individual's work performance or creating an 
intimidating, hostile, or offensive working environment.
    (b) Harassment because of sex includes sexual harassment (including 
sexual harassment based on gender identity); harassment based on 
pregnancy, childbirth, or related medical conditions; and harassment 
that is not sexual in nature but that is because of sex (including 
harassment based on gender identity).
    (c) Though not required by this part, to ensure an environment in 
which all employees feel safe, welcome, and treated fairly, it is a 
best practice for a contractor to develop and implement procedures to 
ensure its employees are not harassed because of sex. Examples of such 
procedures include:
    (1) Communicating to all personnel that harassing conduct will not 
be tolerated;
    (2) Providing anti-harassment training to all personnel;
    (3) Establishing and implementing procedures for handling and 
resolving complaints about harassment and intimidation based on sex.

[FR Doc. 2015-01422 Filed 1-28-15; 11:15 am]
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