Final rules on the “Discrimination on the Basis of Sex” developed by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) are effective August 15, 2016.1 The following is an overview and summary on how these rules (41 CFR Part 60-20) impact safety and health among the Federal government contractor workforce.
Reason for regulation
Labor Secretary Thomas Perez says these new rules against sex discrimination bring compliance “into the 21st century.” The OFCCP has not updated sex discrimination rules since 1970 and “there have been dramatic changes in women’s participation in the workforce since then.”
Who’s impacted by rules?
• Employers with Federal contracts or subcontracts that total $10,000 or more in a 12-month period and Federally-assisted construction contractors. These groups include approximately 325,000 “small” firms.
• More than 30 million female employees of contractors.
• 2,046,850 women in the contractor workforce “likely to become pregnant each year.”
• Male employees of contractors who may experience issues such as “sexual harassment, occupational segregation, and adverse treatment resulting from gender-stereotypical assumptions.”
There are seven major sections in the new rules: 1) General provisions; 2) Sex as a bona fide occupational qualification; 3) Discriminatory compensation; 4) Discrimination on the basis of pregnancy, childbirth, or related medical conditions; 5) Other fringe benefits; 6) Employment decisions made on the basis of sex-based stereotypes; and 7) Harassment and hostile work environments.
Safety and health provisions are found at 41 CFR Part 60-20.5(c) - Accommodations. Contractors must treat people of childbearing capacity and those affected by pregnancy, childbirth, or related medical conditions the same for all employment-related purposes.
Contractors must provide “alternative job assignments, modified duties, or other accommodations to employees who are unable to perform some of their job duties due to pregnancy, childbirth, or related medical conditions” whenever these benefits are provided to any other employee. All accommodations are based on safety and health needs, not comfort.
Related medical conditions “include, but are not limited to, lactation; disorders directly related to pregnancy, such as preeclampsia (pregnancy-related high blood pressure), placenta previa, and gestational diabetes; symptoms such as back pain; complications requiring bed rest; and the after-effects of a delivery.”
The preamble discusses that complications related to conception, carpal tunnel, urinary tract infections and breastfeeding may be conditions related to pregnancy or childbirth and subject to the rules. Toxic chemical exposure, however, is a workplace condition and not a related medical condition.
OFCCP notes that “more women today continue to work throughout their pregnancies and therefore are more likely to need accommodations of some sort.”
OFCCP estimates the one-time cost burden for regulatory familiarization at $41,602,500 ($83 per contractor). The annual cost burden for accommodations under the new rules are $9,671,000. This accommodation cost assumes that 429,839 women in the Federal contractor population work in job categories that might involve more than a de minimis accommodation cost. OFCCP estimates, for example, that 214,920 women work in positions that require physical exertion or standing and may require an accommodation or light duty.
OFCCP does not apply a cost burden under the new rules for Federal contractor employers subject to 16 state laws (17 with Colorado’s 2016 law) that require accommodations during pregnancy or those employers subject to the U.S. Supreme Court’s 2015 decision in Young v UPS e.g. compliance with Title VII Civil Rights Act 1964. Title VII exempts employers with 14 or fewer employees.
The cost burden for the new rules assumes that nine percent of Federal contractor employers have not previously provided accommodations or light duty. Average cost for each accommodation is assumed by OFCCP to be $500.
New rules include a non-mandatory “best practices” appendix. Best practices include:
• Avoid use of gender-specific job titles such as “foreman” or “lineman” where gender-neutral alternatives are available;
• Designate single-user restrooms, changing rooms, showers, or similar single-user facilities as sex-neutral;
• Provide, as part of their broader accommodations policies, light duty, modified job duties or assignments, or other reasonable accommodations to employees who are unable to perform some of their job duties because of pregnancy, childbirth, or related medical conditions;
• Provide appropriate time off and flexible workplace policies for men and women;
• Foster a climate in which women are not assumed to be more likely to provide family care than men; and,
• Foster an environment in which all employees feel safe, welcome, and treated fairly by developing and implementing procedures to ensure that employees are not harassed because of sex. Examples of such procedures include providing anti-harassment training to all personnel; and establishing and implementing procedures for handling and resolving complaints about harassment and intimidation based on sex.
The University of California, Hastings College of Law, Center for WorkLife Law, created the website www.pregnantatwork.org to address the growing interest the topic of pregnancy accommodation. WorkLife Law’s 2016 report Caregivers in the Workplace predicts that the “upward trend in the number of pregnancy accommodation cases is expected to increase in the near future, particularly due to increased public awareness of pregnant women’s legal rights brought about by advocacy efforts.”
Women in most cases will initiate a request for reasonable accommodations. Employers should conduct workplace risk assessments to identify significant hazards to pregnancy before pregnancy is declared.