On Dec. 3, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) stated that it is issuing its final rule prohibiting federal contractors and subcontractors from discriminating against workers based on sexual orientation or gender identity. The final rule, which OFCCP bills as “historic new protections for LGBT workers,” implements Executive Order 13672. Signed by President Obama in July, that executive order added sexual orientation and gender identity to the protected bases in EO 11246 (race, color, religion, sex and national origin).

The only affirmative action requirements affected by the final rule are those contained in 41 CFR 60-1. Federal contractors satisfy this obligation by:

• Including the updated Equal Opportunity Clause in new or modified subcontracts and purchase orders.
• Ensuring that applicants and employees are treated without regard to their sexual orientation and gender identity.
• Updating the equal opportunity language used in job solicitations and posting updated notices.

The final rule makes no changes to the provisions governing data collection and reporting set forth at 41 CFR 60-1.7 and 60-1.12(c). It is important for contractors to note that the obligations updated by the final rule are separate from the additional affirmative action requirements set forth in 41 CFR parts 60-2 and 60-4 that comprise the contents of contractors’ written affirmative action programs. This final rule did not make any changes to the written affirmative action program requirements of 41 CFR part 60-2 or the affirmative action requirements contained in § 60-4.3(a)(7) of 41 CFR part 60-4. Those continue to be limited to gender, race and ethnicity.

Neither EO 13672 nor the final rule made any changes to EO 13279, which provides a religious exemption to EO 11246 and was signed in 2002 by President Bush. Federal contractors that are religious corporations, associations, educational institutions or societies are still allowed to favor employees and applicants based on religion in employment determinations.

The rule will go into effect 120 days after it is published in the Federal Register.