Prepared Expressly for OutSolve, LLC By Andrews Kurth LLP
In March 2016, North Carolina passed H.B. 2 (commonly referred to as the “Bathroom Bill”), which prevents transgender people from using bathrooms that match their gender identity. The law’s passage quickly ignited a cultural debate, and it also instigated legal challenges by the ACLU and the Obama administration. The Equal Employment Opportunity Commission, Department of Justice, and Department of Education subsequently issued guidance on the subject, stating that Title VII and Title IX provide anti-discrimination protections for transgender people. That move, in turn, led over a dozen states to join together in a lawsuit to block any enforcement actions based on that guidance.
In many respects, the law is in flux with respect to the rights and protections afforded to transgender people—but not in all respects. In fact, the Office of Federal Contractor Compliance Programs (the “OFCCP”) published its Final Rule setting forth detailed requirements with respect to this topic over the summer. Put simply, federal contractors and subcontractors are prohibited from employment discrimination on the basis of sexual orientation and gender identity. The OFCCP’s Final Rule became effective August 15, 2016. See 81 F.R. 39107.
By way of background, gender identity refers to a person’s internal sense of his or her own gender. This identity may or may not correspond to the sex assigned to the person at birth, and it may or may not be visible to others. The process of transitioning reflects the period during which a person begins living as the gender with which they identify, rather than the gender that they were assigned at birth. The term transgender describes people for whom the sex to which they were assigned at birth does not match their gender identity. Accordingly, when a law or policy proscribes discrimination on the basis of gender identity, discrimination based on a person being transgender is necessarily prohibited. Sexual orientation, on the other hand, refers to an individual’s physical, romantic, or emotional attraction to people of the same or opposite gender. Straight, lesbian, gay, and bisexual are terms commonly used to refer to a person’s sexual orientation.
On July 21, 2014, President Obama issued Executive Order 13672 (“EO 13672”), which provides that federal agencies and federal contractors are required to amend their equal employment opportunity policies or clauses to include sexual orientation and gender identity in the list of protected classes (which already included race, color, religion, sex, and national origin) and to take affirmative action to ensure that job applicants and employees are treated without regard to such protected classes. The OFCCP subsequently promulgated rules and issued guidance to implement EO 13672 and clarify the OFCCP’s role with respect to its enforcement.
One thing that the OFCCP has made quite clear is that federal contractors and subcontractors with a federal contract or subcontract in excess of $10,000 (collectively referred to as “Contractors”) must ensure that their restroom access policies and procedures do not discriminate based on the gender identity of an applicant or employee. In other words, Contractors must allow employees and applicants to use the restrooms that correspond with their gender identity. To the extent that Contractors provide unisex or single-occupancy restrooms, they cannot require transgender individuals to use such restrooms. However, if other employees express discontent about the restroom that a transgender person is using, Contractors can suggest that such other employees use the single-occupancy restrooms.
The OFCCP has also made it clear that Contractors cannot discriminate on the basis of gender identity with respect to the provision of healthcare coverage. Accordingly, healthcare coverage for medically-appropriate services must be made available on the same terms for all individuals who participate in Contractors’ group health plans. If a transgender man (an individual who identifies as a man but was assigned the sex of female at birth) seeks medical treatment for ovarian cancer, a Contractor may not deny the coverage sought because the individual identifies as a man. Additionally, the OFCCP has noted that categorical coverage exclusions for medical services related to gender dysphoria (i.e., the feeling of one’s emotional or psychological identity as a male or female to be opposite to one’s biological sex) or gender transition are discriminatory on their face, as they target medical services for individuals based on their gender identity.
With respect to a transitioning applicant or employee, Contractors cannot ask for documentation to prove gender identity or transgender status—Contractors may only request the documentation requested from other employees under similar circumstances. For instance, if a transgender employee wishes to change his or her name, the Contractor may only require the same documentation that would be required from any other employee seeking a name change (for example, because of marriage). Or if a transgender employee is requesting medical leave in connection with his or her transition, the Contractor can only request the same documentation that it would request from any other employee seeking medical leave.
The OFCCP does not require that Contractors ask applicants or employees to voluntarily self-identify their gender identity or sexual orientation. In fact, the OFCCP does not require Contractors to collect any information related to an applicant’s or an employee’s gender identity or sexual orientation. Yet if Contractors do collect any such employee information to aid in diversity and inclusion efforts, the OFCCP may request such information in connection with a compliance evaluation or a specific matter under investigation. Of course, Contractors should ensure that they are treating such information as confidential and acting in accordance with state and local laws if they are collecting information related to an applicant’s or an employee’s gender identity or sexual orientation.
Although some employers, schools, and other entities throughout the country may currently find themselves in a gray area with respect to the various (and often conflicting) laws, rules, and guidance on issues related to transgender individuals, Contractors should not. In fact, Contractors should ensure that they are in compliance with EO 13672, the Final Rule, and applicable guidance that the OFCCP has already set forth on this topic.
This article was prepared expressly for OutSolve, LLC by Todd Mobley, Associate at Andrews Kurth.
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