DOL Issues Final Rule on Government Contractor Sexual Orientation and Gender Identity Non-Discrimination and Affirmative Action Requirements

On December 9, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued the Final Rule implementing Executive Order (“EO”) 13672, which will require affirmative action and non-discrimination in employment on the basis of sexual orientation and gender identity for federal government contractors.  See our prior post on EO 13672, which President Obama signed on July 21, 2014.¹  The Final Rule becomes effective on April 10, 2015, 120 days after its publication in the Federal Register today.  While the Final Rule was expected to be published in the Federal Register on December 3, 2014, later that morning the OFCCP published a notice soliciting comments under the Paperwork Reduction Act (“PRA”), which requires an analysis of the administrative burdens new regulations will have on small businesses.  The agency had already issued its FAQs on the effect of EO 13672 and we do not expect the substance of the Final Rule to change despite the PRA comments period. EO 13672 amends EO 11246, first introduced by President Lyndon Johnson in 1965, to add sexual orientation and gender identity to the list of categories, specifically race, color, religion, sex and national origin that are protected from discrimination and require affirmative action.  EO 13672 is the first federal action prohibiting discrimination on these grounds, given that efforts to extend workplace protections to LGBT employees through the Employment Non-Discrimination Act (“ENDA”) have been mired in legislative gridlock.  EO 13672 will apply to contractors or subcontractors with more than $10,000 in federal government business and covers contracts entered into or modified on or after the effective date.

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