Final Rule to Resolve Discrimination Released

On November 5^th, 2020, the Department of Labor’s (DOL’s) Office of Federal Contract Compliance Programs (OFCCP) published a Final Rule titled “Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures to Resolve Potential Employment Discrimination.” The announcement of the new final rule comes weeks after the OFCCP launched resources to combat race and sex stereotyping.

Overview of the Final Rule

The rule codifies two notices that the OFCCP uses for potential violations of Executive Order (EO) 11246 or associated regulations. Those pre-enforcement notices are the Predetermination Notice and the Notice of Violation. These notices provide federal contractors with an explanation of the agency’s preliminary discrimination findings and give an opportunity to respond. This allows for a greater shared understanding of the case and provides opportunities to conciliate. The rule also recognizes the availability of voluntary conciliation agreements early in the resolution process. The final rule is effective December 10^th, 2020.

 Effects of the Final Rule

According to the OFCCP, the final rule helps the agency in increasing the number of contractors that they can evaluate. This allows the OFCCP to focus on resolving stronger cases of potential discrimination through the allocation of limited agency resources. The procedures included in the final rule achieve that result by increasing the transparency of OFCCP’s procedures and evidentiary standards. The OFCCP hopes this allows the agency and contractors to resolve potential violations through a clear understanding of the issues.

Additional Laws Enforced by the OFCCP

The OFCCP also enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans’ Readjustment Assistance Act. These laws make it illegal for federal government contractors and subcontractors to discriminate in employment on certain characteristics. These traits are race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran. In addition, applicants or employees cannot experience discrimination because they have discussed their compensation or the compensation of others. Contractors and subcontractors also can not retaliate against applicants or employees for engaging in protected activities. These laws also require that federal contractors provide equal employment opportunity through affirmative action. For more information, individuals can call OFCCP’s toll-free helpline at (800) 397-6251 or visit https://www.dol.gov/ofccp/.

Employer Takeaways

Although EO 11246 covers federal contractors, all employers need to take workplace discrimination seriously. If your workplace has 15 or more employees, Title VII of the Civil Rights Act explicitly prohibits discrimination in the workplace on the basis of race, religion, national origin, and sex. Many states and local governments, however, also have anti-discrimination training laws in place for employers with fewer employees. Employers need to investigate which, if any, state-specific anti-discrimination laws they need to follow in order to avoid possible lawsuits.