December 2, 2014

OFCCP TO RELEASE FINAL RULE ON GENDER IDENTITY DISCRIMINATION

The OFCCP reported it will release final rules on, among other things, gender identity and, more generally, sex discrimination which, by its own admission, are 30 years old and out of date (see the formal notice).  The initial directive on gender identity (among other things) may be viewed here.  I’ll make this short and sweet for now … I have a series of alerts on issues relating to gender identity discrimination, including what the EEOC is planning, and case law relating to the belief that many cases of gender preference amount to sex stereotyping under Title VII rules.

The current push by the OFCCP on a final rule regarding discrimination against gay, lesbian, bisexual and transgender LGBT employees represents implementation of President Obama’s Executive Order 13672, which is an amendment to Executive Order 11246 — the original order on affirmative action signed by President Johnson in 1965 and amended by several presidents since.  The order is straight forward … it protects LGBT applicants and employers of federal contractors.

The final rule could be issued within the month.  As an aside, the OFCCP feels it does not need to release a notice of proposed rulemaking on grounds that Obama’s order leaves no discretion regarding how to proceed with cases involving LGBT discrimination by federal contractors.

More to come.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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