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On August 19, 2014, OFCCP finally issued a Directive on Gender Identity and Sex Discrimination that clearly acknowledged that gender discrimination under Executive Order 11246 covers discrimination on the basis of transgender and gender identity status. Regular readers of this column may recall my January 2014 article in which I reported a headline from a December 4, 2013 Buzzfeed.com post that read, “Federal Official Refuses to Say Whether Office is Protecting Trans Workers.” Apparently, the only response the agency was willing to offer at that time was a reiteration that “OFCCP follows Title VII precedent in everything.” This was essentially an invitation for the reader to review Title VII case law and figure it out for him or herself.
The purpose of my January article was to shed more light on the subject. I recommended, among other things, that OFCCP clearly acknowledge that it protected transgender workers. Specifically, after explaining the EEOC position in Macy v. Holder (EEOC Appeal No. 0120120821, April 2012), I stated:
In contrast to its December 2013 response and as I urged in January, OFCCP’s new directive clearly states that the laws enforced by OFCCP protect transgender workers. The policy provision states:
In saying it will continue to fully investigate and seek to remedy transgender and gender identity discrimination, OFCCP frames this new guidance as a simple continuation of an ongoing policy and practice. If that is the case, it is not at all clear why OFCCP demonstrated reluctance to clearly answer “yes” to the Buzzfeed inquiry in December. A simple yes, OFCCP protects trans-workers, would have been more consistent with an ongoing practice of extending such protections.
The fact of the matter is that OFCCP does not get many, if any, of these kinds of complaints. OFCCP does not cite any OFCCP decisions on transgender and gender identity in its Directive. In addition, I could not find on DOL’s website any reference to a case where OFCCP actually “sought to remedy” transgender discrimination. Reading this policy statement one might think that OFCCP compliance officers are very familiar with these kinds of cases and that there is a meaningful body of OFCCP decisions on this issue. Neither is true.
In the normal course of business OFCCP refers individual (as opposed to class) complaints to the EEOC for processing. The Memorandum of Understanding (MOU) referred to in the excerpt above provides for individual cases to be referred to EEOC unless OFCCP requests to retain them. Specifically, the MOU states:
The new policy directive includes a blanket request to retain transgender and gender identity cases. OFCCP asserts that it is making this request to assure effective enforcement of the Directive. This basically means that they are keeping these cases because they want to keep them. EEOC is perfectly capable of handling individual transgender and gender identity discrimination cases if OFCCP chose to refer them. OFCCP and EEOC have an interesting relationship when it comes to the distribution of cases that could be brought in either forum. Transgender and gender identity discrimination is fairly new territory compared to the traditional bases and neither agency is going to yield the field entirely to its sister agency. It appears that both EEOC and OFCCP want a piece of the action. So whichever door you walk in, that agency will keep the case.
Of further note in this Directive is the distinction it suggests between transgender and gender identity discrimination as a form of gender discrimination, and transgender and gender identity discrimination as a stand-alone category. OFCCP states that:
This raises the obvious question (now famous in another context), “What difference does it make?” If transgender and gender identity discrimination is a form of gender discrimination, what difference does it make that it is also now a stand-alone category? From a political perspective, creating a stand-alone category highlights the government’s commitment to this issue more directly and satisfies the constituents who have pushed for this addition to Executive Order 11246. From a legal perspective, on the issue of discrimination it appears to be a distinction without much of a difference. It simply allows the case to go forward without having to stop and explain how it fits into gender discrimination. The greatest legal impact of the Executive Order amendments making transgender and gender identity status a “stand-alone” category may come in the introduction of affirmative action program plan requirements for those specific categories when OFCCP promulgates implementing regulations for the amendments.
What can Federal Contractors expect from OFCCP?
Following are my predictions for what contractors can look forward to from OFCCP in this area:
OFCCP’s new Directive on Gender Identity and Sex Discrimination finally provides a straightforward answer to the question I discussed in January: whether OFCCP protects trans-workers. The framework in which this new Directive is presented, however, is not nearly as straightforward. Someone unfamiliar with OFCCP enforcement may walk away from this Directive thinking that OFCCP handles cases of this type all the time and will simply continue to do so. They would be mistaken.
There is no shame in admitting that OFCCP just does not see that many cases involving transgender and gender identity status. The Macy case was only decided in 2012. It had been a matter of debate for sometime before that whether Title VII even reached this issue. Given the evolving state of the law in this area and the fact that OFCCP traditionally does not handle cases of individual discrimination that are cognizable under Title VII, it is not surprising that OFCCP does not have a strong track record in this area. It really has not had much opportunity to develop one. The policy guidance, in my view, creates an impression that overstates the extent of OFCCP’s experience and activity in this area. They may get there, but they are not there yet. The ambivalence evident in their December response to the question of coverage may be reflective of this dearth of experience.
Federal Contractors will likely be able to handle the few cases that come up as this fairly new area of enforcement takes root at OFCCP. Hopefully, my predictions of where OFCCP might go with this will provide a helpful perspective and a reality check. Knowing that compliance officers are still in the early stages of handling these issues, Federal Contractors should approach the defense of these types of cases by laying out their rationale as clearly as possible, helping compliance officers to draw the appropriate parallels to enforcement areas with which they have more familiarity. Build the bridge from the facts to the conclusion you think is appropriate, don’t just hand the compliance officer the building materials and expect him or her to build it for you. This should be done in a way that respects the compliance officer, since how they feel about you affects how they investigate you.
Finally, since OFCCP and EEOC will both be addressing these types of complaints, Federal Contractors should make sure that they make the agencies aware of any overlap in investigation.