DOL Final Rule Prohibiting Discrimination Against LGBT Individuals In Government Contracting Effective April 2015

On December 3, 2014, the Department of Labor (DOL) issued a final rule prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity. The final rule implements Executive Order (EO) 13672, which was signed by President Obama on July 21, 2014. The final rule was effective on Wednesday, April 8, 2015, 120 days from the rule's December 9, 2014, publication date in the Federal Register. The DOL FAQ on the final rule is available on the agency's website.

Analogously, in recent informal guidance posted on its website, the U.S. Equal Employment Opportunity Commission (EEOC) take the position that discrimination against an individual because that person is transgender is a violation of Title VII of the Civil Rights Act of 1964 (Title VII) and such individuals may file a complaint of sex discrimination.

Executive Order 13672

EO 13672 modified EO 11246, first published in 1965, as subsequently amended, to expand discrimination protections that apply to federal contractors and directed the Secretary of Labor to prepare corresponding regulations. Specifically, EO 13672 required federal contractors to include language in new and modified contracts requiring certain actions to prevent discrimination on the basis of sexual orientation and gender identity. Previously, EO 11246 only prohibited federal contractors, who conduct more than $10,000 in business with the federal government in one year, from discriminating on the basis of race, color, religion, sex and national origin. As a result of EO 13672, sections 202 and 203 of EO 11246 were amended by substituting the phrase "sex, sexual orientation, gender identity, or national origin" for the phrase "sex or national origin" wherever the latter appears.

Final Rule

The DOL's final rule, published in the Federal Register on December 9, 2014, updated the regulations implementing EO 11246, by making the same substitution described above wherever the phrase "sex or national origin" appears. As a result, the final rule prohibits discrimination based on, and requires federal contractors to take affirmative action to treat job applicants and employees without regard to sexual orientation or gender identity. Under the final rule, federal contractors must include an updated Equal Opportunity Clause in all new or modified subcontracts and purchase orders that prevent discrimination on the basis of sexual orientation and gender identity. As a result, no changes are required...