[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Rules and Regulations]
[Pages 72985-72995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28902]
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DEPARTMENT OF LABOR
Office of Federal Contract Compliance Programs
41 CFR Parts 60-1, 60-2, 60-4, and 60-50
RIN 1250-AA07
Implementation of Executive Order 13672 Prohibiting
Discrimination Based on Sexual Orientation and Gender Identity by
Contractors and Subcontractors
AGENCY: Office of Federal Contract Compliance Programs, Labor.
ACTION: Final rule.
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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is
revising the regulations implementing Executive Order (EO) 11246, as
amended, in accordance with Executive Order (EO) 13672, ``Further
Amendments to Executive Order 11478, Equal Employment Opportunity in
the Federal Government, and Executive Order 11246, Equal Employment
Opportunity,'' which was signed by President Barack Obama on July 21,
2014. EO 13672 amended EO 11246, which previously only prohibited
discrimination by Federal contractors and subcontractors on the bases
of race, color, religion, sex, and national origin and required them to
take affirmative measures to prevent discrimination on those bases from
occurring. More specifically, EO 13672 amended section 202 and section
203 of EO 11246, by substituting the phrase ``sex, sexual orientation,
gender identity, or national origin'' for ``sex or national origin.''
This final rule implements EO 13672 by making the same substitution
wherever the phrase ``sex or national origin'' appears in the
regulations implementing EO 11246.
DATES: Effective date: These regulations are effective April 8, 2015.
Applicability date: These regulations will apply to Federal
contractors who hold contracts entered into or modified on or after
April 8, 2015.
FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of
Policy and Program Development, Office of Federal Contract Compliance
Programs, at 200 Constitution Avenue, NW., Room C-3325, Washington, DC
20210, or by calling (202) 693-0103 (voice) or (202) 693-1337(TTY). The
alternative formats available for copies of this rule are large print
and electronic file on computer disk. The rule also is available on the
Internet on the Regulations.gov Web site at http://www.regulations.gov
or on the OFCCP Web site at http://www.dol.gov/ofccp.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Office of Federal Contract Compliance Programs (OFCCP) is a
civil rights and worker protection agency that enforces Executive Order
11246, as amended, which, prior to the issuance of Executive Order
13672, prohibited employment discrimination by companies doing business
with the Federal Government on the bases of race, color, religion, sex,
and national origin and required those companies to take affirmative
steps to ensure nondiscrimination on those grounds.\1\
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\1\ OFCCP also enforces the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, 38 U.S.C. 4212, which requires
affirmative action and prohibits employment discrimination against
certain protected veterans and section 503 of the Rehabilitation Act
of 1973, as amended, which prohibits discrimination on the basis of
disability and requires affirmative action on behalf of qualified
individuals with disabilities.
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On July 21, 2014, President Barack Obama issued EO 13672, ``Further
Amendments to Executive Order 11478, Equal Employment Opportunity in
the Federal Government, and Executive Order 11246, Equal Employment
[[Page 72986]]
Opportunity.'' The new EO added sexual orientation and gender identity
to the prohibited bases of discrimination in EO 11246 (``the protected
bases'').\2\
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\2\ The White House, FACT SHEET: Taking Action to Support LGBT
Workplace Equality is Good For Business, (July 21, 2014), http://www.whitehouse.gov/the-press-office/2014/07/21/fact-sheet-taking-action-support-lgbt-workplace-equality-good-business-0 (last
accessed Nov. 28, 2014).
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In pertinent part, Section 2 of EO 13672 amended numbered
paragraphs 1 and 2 of section 202 and paragraph (d) of section 203 of
EO 11246. Section 202 sets forth language that Government agencies must
insert into all covered contracts and prime contractors must insert
into covered subcontracts (``the Equal Opportunity Clause''). Prior to
the issuance of EO 13672, numbered paragraph 1 of the Equal Opportunity
Clause prohibited discrimination and required that contractors take
affirmative action to ensure that job applicants and employees are
treated without regard to their race, color, religion, sex, or national
origin.
EO 13672 amended section 202, numbered paragraph 1, by adding
``sexual orientation'' and ``gender identity'' to the bases upon which
Federal contractors \3\ are prohibited from discriminating against job
applicants and employees. It further amended the paragraph by requiring
that contractors take affirmative action to ensure that applicants are
employed, and that employees are treated, without regard to their
sexual orientation or gender identity during their employment. EO 13672
states, specifically, that section 202, numbered paragraph 1, of EO
11246 is ``revised by substituting `sex, sexual orientation, gender
identity or national origin' for `sex, or national origin.'''
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\3\ Unless otherwise stated, the term ``contractor'' includes
both ``contractors'' and ``subcontractors,'' and the term
``contract'' also includes ``subcontracts.''
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Section 202, numbered paragraph 2, is also part of the Equal
Opportunity Clause. This paragraph requires that solicitations or
advertisements for employees state that the contractor considers all
applicants for employment without regard to any of the protected bases.
Executive Order 13672 specifically amended this paragraph by
substituting ``sex, sexual orientation, gender identity, or national
origin'' for ``sex or national origin.''
Section 203(d) of EO 11246 provides that prospective contractors
may be required by the Secretary of Labor to provide a statement from
any labor union or any agency referring workers or providing or
supervising apprenticeships or other training with which the
prospective contractor deals stating that their practices and policies
do not discriminate in employment on any of the protected bases, as
part of their Compliance Report. Executive Order 13672 amended the text
of 203(d) by substituting ``sex, sexual orientation, gender identity,
or national origin'' for ``sex or national origin.''
Section 3 of EO 13672 directs the Secretary of Labor to ``prepare
regulations to implement the requirements of section 2'' within 90 days
of the date of the order. Section 5 of EO 13672 provides that section 2
applies to Federal contracts ``entered into on or after the effective
date of the rules'' promulgated by the Department of Labor in
accordance with section 3 of the order. The existing OFCCP regulation,
modeled on language from EO 11246 itself, defines a ``Government
contract'' as ``any agreement or modification thereof between any
contracting agency and any person * * *'', and thus this rule also
applies to contracts modified on or after the effective date of these
regulations. See 41 CFR 60-1.3 (emphasis added). Accordingly, revisions
have been made to 41 CFR part 60-1--Obligations of Contractors and
Subcontractors, 41 CFR part 60-2--Affirmative Action Programs, 41 CFR
part 60-4--Construction Contractors--Affirmative Action Requirements,
and 41 CFR part 60-50--Guidelines on Discrimination because of Religion
or National Origin.
The regulatory changes made by this final rule directly implement
the changes to EO 11246 made by EO 13672; specifically, the replacement
of the words ``sex, or national origin'' with the words ``sex, sexual
orientation, gender identity, or national origin'' throughout the EO
11246 implementing regulations.\4\ No other regulatory changes are
being made.
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\4\ While the text of 41 CFR 60-1.11 contains the full list of
protected characteristics, that section has been indefinitely
suspended as per Notice of Further Deferral of Effective Dates of
Regulations, 46 FR 18951 (Mar. 27, 1981) and Payment of Membership
Fees and Other Expenses to Private Organizations; Proposed Rule
Withdrawal, 46 FR 19004 (Mar. 27, 1981), and thus cannot be amended.
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The only affirmative action requirements affected by this final
rule are those contained in 41 CFR part 60-1. 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, and by updating the equal opportunity language used in
job solicitations and posting updated notices. See 41 CFR 60-1.4(a)
paragraphs 1, 2, and 7 of the Equal Opportunity Clause, and 60-
1.4(b)(1) paragraphs 1, 2, and 7 of the Equal Opportunity Clause. This
final rule makes no changes to the provisions governing reporting and
information collection set forth at 41 CFR 60-1.7 and 60-1.12(c). The
obligations updated by this 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. No changes are being made to the written affirmative action
program requirements of 41 CFR part 60-2, or the affirmative action
requirements contained in Sec. 60-4.3(a)(7) of 41 CFR part 60-4, and
thus those programs will continue to be limited to gender, race, and
ethnicity. While the terms ``sexual orientation'' and ``gender
identity'' will now appear in two sections within part 60-2 that
include the full list of protected bases (in Sec. Sec. 60-2.16(e)(2)
and 60-2.35), the final rule does not require contractors to set
placement goals on the bases of sexual orientation or gender identity,
nor does it require contractors to collect and analyze any data on
these bases. Section 60-2.16(e)(2) simply states that placement goals
for women and minorities under the existing regulations may not be used
as a basis for discrimination on one of the bases protected by EO
11246, including sexual orientation and gender identity. The affected
provision of Sec. 60-2.35 indicates that both statistical and non-
statistical data will be considered in determining whether contractors
have complied with their nondiscrimination obligations; it does not
require contractors to collect any statistical data.\5\
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\5\ In accordance with its long-standing practice, OFCCP will
continue to utilize the analytical framework of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., to determine
whether discrimination has occurred under Executive Order 11246. See
OFCCP, FCCM Sec. 2H01 (July 2013), available at http://www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf (last accessed
November 28, 2014); see also OFCCP v. Honeywell, 77-OFC-3, Sec'y of
Labor Dec. and Order on Mediation, June 2, 1993, at 14 and 16 &
Sec'y of Labor Dec. and Remand Order, March 2, 1994; OFCCP v.
Illinois Institute of Technology, 80-OFC-11, Sec'y Final Order,
December 23, 1982; OFCCP v. Firestone, 80-OFC-15, Sec'y Dec., July
13, 1980, rev'd on other grounds, Firestone v. Marshall, 507 F.
Supp. 1330 (E.D. Tex. 1981).
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In addition, as section 204(c) of EO 11246, which provides an
exemption for religious organizations, was not amended by EO 13672,
this rule does not make changes to the corresponding regulation at 41
CFR 60-1.5(a)(5), which
[[Page 72987]]
tracks the language of the Executive Order.\6\
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\6\ This regulation states: ``Section 202 of Executive Order
11246, as amended, shall not apply to a Government contractor or
subcontractor that is a religious corporation, association,
educational institution, or society, with respect to the employment
of individuals of a particular religion to perform work connected
with the carrying on by such corporation, association, educational
institution, or society of its activities. Such contractors and
subcontractors are not exempted or excused from complying with the
other requirements contained in this Order.''
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Lastly, although EO 13672 adds ``gender identity'' as an
independent basis upon which discrimination is prohibited under EO
11246, nothing in EO 13672 or this final rule diminishes the pre-
existing coverage of discrimination on the basis of gender identity or
discrimination on the basis of transgender status as a form of sex
discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989);
Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012); OFCCP
Directive 2014-02, ``Gender Identity and Sex Discrimination,''
effective August 19, 2014 (available online at http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html).
Publication as a Final Rule
OFCCP is promulgating this final rule without notice or an
opportunity for public comment (``notice and comment'') because the
Administrative Procedure Act's (``APA'') ``good cause'' exemption
allows the agency to dispense with notice and comment when
``impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B).\7\ Notice and comment are unnecessary when changes to
regulations merely restate the changes in the enabling authority they
implement. Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284,
1291 (D.C. Cir. 1991), citing Komjathy v. National Transportation
Safety Board, 832 F.2d 1294, 1296-97 (D.C. Cir. 1987). Because these
final rules merely amend 41 CFR parts 60-1, 60-2, 60-4, and 60-50 to
conform with the amendments made to EO 11246 by EO 13672, amendments as
to which OFCCP lacks discretion as to whether to make, notice and
comment are unnecessary and the ``good cause'' exemption applies to
this final rule.
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\7\ Although the Administrative Procedure Act's notice and
comment requirement does not apply to matters relating to public
contracts, 5 U.S.C. 553(a), it is the policy of the Department of
Labor not to rely upon that exemption. See 29 CFR 2.7.
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OFCCP has previously relied on the ``good cause'' exemption in
amending its rules under EO 11246 without notice and comment to
implement EO 11375, which amended Executive Order 11246 to add sex as a
basis of prohibited discrimination and replaced the term ``creed'' with
``religion;'' OFCCP's rule amended the regulations in the same way.
Obligations of Contractors and Subcontractors; Miscellaneous
Amendments; Final Rule; 34 FR 744 (Jan. 17, 1969). Similarly, when EO
13279 added a religious exemption to EO 11246, OFCCP promulgated a rule
without notice and comment under the good cause exemption by restating
the religious exemption as a new provision in its regulations.
Affirmative Action Obligations of Government Contractors, Executive
Order 11246, as Amended; Exemption for Religious Entities; Final Rule;
68 FR 56392 (Sept. 30, 2003).
Sections Revised
Several sections in 41 CFR chapter 60 are being revised by this
final rule: Sec. Sec. 60-1.1, 60-1.4(a)(1), 60-1.4(a)(2), 60-
1.4(b)(1)(1), 60-1.4(b)(1)(2), 60-1.8, 60-1.10, 60-1.20, 60-1.41(a),
60-1.41(c), 60-1.42(a), 60-2.16(e)(2), 60-2.35, 60-4.3(a)(10), and 60-
50.5. As noted above, in each of these sections, wherever the words
``sex, or national origin'' appear, they have been replaced with the
words ``sex, sexual orientation, gender identity, or national origin,''
as required by EO 13672. No other revisions have been made. However,
for the convenience of the reader, the entire section or paragraph
containing the revised language is reprinted in this final rule.
Regulatory Procedures
Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives, and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects, distributive impacts, and equity, dignity,
and fairness concerns). Here, the specific changes being made to the
regulations are required by the amendments to Executive Order 11246
made by Executive Order 13672, and thus no less burdensome alternatives
existed. Although this rule is not economically significant within the
meaning of Executive Order 12866, it has been reviewed by the Office of
Management and Budget (OMB).
This rule replaces the words ``sex, or national origin'' with the
words ``sex, sexual orientation, gender identity, or national origin''
wherever they appear in the current regulations. No other revisions
have been made.
Benefits of this rule include equity, fairness, and human dignity.
Such benefits are difficult to quantify but nevertheless are important
and specifically recognized by Executive Order 13563. In addition,
employment discrimination on the basis of sexual orientation or gender
identity, like employment discrimination on other bases prohibited by
EO 11246, may have economic consequences. It, like other forms of
discrimination, may lead to reduced productivity and lower profits.
Contractor employees who face discrimination on the basis of sexual
orientation or gender identity on the job may experience lower self-
esteem, greater anxiety and conflict, and less job satisfaction. Such
employees may also receive less pay and have less opportunity for
advancement. Job applicants who experience discrimination on the basis
of sexual orientation or gender identity may not be considered for a
job at all, even though they may be well-qualified. This rule is
designed to address these problems to ensure a fair and inclusive work
environment in the context of Federal contractors.
The expected costs to employers resulting from this rule are:
Regulatory familiarization, incorporation of the modified new language
into the equal opportunity clauses they currently use in covered
subcontracts and purchase orders, the reporting of any visa denials,
and administrative costs associated with providing required notices to
employees and modifying existing job posting templates. OFCCP expects
that other changes made by this rule--such as the prohibition of
segregation of facilities on the basis of sexual orientation or gender
identity will have minimal costs to employers. This rule does not
require contractors to set goals for employing persons on the basis of
sexual orientation or gender identify, collect and maintain statistics
on applicants or employees on the basis of sexual orientation or gender
identity, or conduct statistical analysis of applicants or employees on
the basis of sexual orientation or gender identity. Therefore, the
costs of performing such activities are not included in this analysis.
Assumptions
The estimated labor cost to contractors and subcontractors is based
on U.S. Department of Labor, Bureau of Labor Statistics (BLS) data in
the publication ``Employer Costs for Employee Compensation'' issued in
December 2013, which lists total
[[Page 72988]]
compensation for management, professional, and related occupations as
$51.58 per hour and for administrative support as $24.23 per hour.
OFCCP estimates that 25 percent of the burden will fall to management,
professional, and related occupations and 75 percent will be
administrative support.
For purposes of analyzing the economic effect of rules on federal
contractors, OFCCP typically assumes 500,000 contractor companies or
firms may be affected by these provisions because 500,000 contractor
firms are registered in the General Service Administration's System for
Award Management (SAM). OFCCP recognizes that using SAM likely results
in an overestimation of the number of covered contractors and
subcontractors. For example, the SAM data includes recipients of
Federal grants and Federal financial assistance, none of which are
covered by this Rule. The SAM data also includes firms that do not meet
the jurisdictional dollar threshold of EO 11246. In addition, a large
percentage of Federal contractors already prohibit discrimination based
on sexual orientation and gender identity and/or operate in states or
localities that do, and will therefore already be in compliance with
the requirements of this Rule. This approach is consistent with the
approach used in other recent OFCCP and WHD rulemakings.\8\ However,
the estimate of 500,000 contractor companies or firms does not include
new companies and firms that become contractors in the future. OFCCP
does not currently have a reliable data source or method for estimating
the number of new contractor companies or firms each year.
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\8\ There is at least one reason to believe the SAM data yields
an underestimate of the number of entities affected by this rule and
other reasons to believe the data yields an overestimate. SAM does
not necessarily include all subcontractors, thus potentially leading
to an underestimate, but this limitation of the data is offset
somewhat because of the overlap among contractors and
subcontractors; a firm may be a subcontractor on some activities but
have a contract on others and thus be included in the SAM data.
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Cost of Regulatory Familiarization
OFCCP expects that human resources or personnel managers at each
contractor establishment or firm will spend time becoming familiar with
the amended requirements. In order to minimize the burden of these
changes, OFCCP will publish compliance assistance materials such as,
but not limited to, fact sheets and ``Frequently Asked Questions.''
OFCCP will also host webinars for the contractor community that will
describe the amended requirements and engage in outreach to identify
any specific challenges contractors believe they face, or may face,
when complying with the requirements.
Therefore, OFCCP estimates that it will take 60 minutes or 1 hour
for a management professional at each contractor establishment to
either read the compliance assistance materials provided by OFCCP or
participate in an OFCCP webinar to learn more about the amended
requirements. Consequently, the estimated burden for rule
familiarization is 500,000 hours (500,000 contractor companies x 1 hour
= 500,000 hours). We calculate the total estimated cost as $25,790,000
(500,000 hours x $51.58/hour = $25,790,000).
Cost of Specific Provisions
Sections 60-1.4(a) and (b) and 60-4.3(a) require contractors to
incorporate this modified new language into the equal opportunity
clauses they currently use in covered subcontracts and purchase orders.
The amended Equal Opportunity Clause may be incorporated by reference.
OFCCP estimates that contractors and subcontractors will spend
approximately 15 minutes modifying existing contract templates to
ensure the additional language is added. The estimated burden for this
provision is 125,000 hours (500,000 contractors x 0.25 hours). The
estimated cost for incorporating the changes into the Equal Opportunity
Clause is $3,883,438 ((125,000 hours x 0.25 x $51.58) + (125,000 x 0.75
x $24.23) = $3,883,438).
Sections 1.4(a)(1) and 1.4(b)(1) require contractors to notify job
applicants and employees of their nondiscrimination policy by posting
specific notices, provided by contracting officers, in conspicuous
places. OFCCP recognizes that this rule requires contractors to update
their existing postings to comply with the revised regulations. OFCCP
estimates that it will take 15 minutes (or 0.25 hours) for contractors
to locate the revised notice on OFCCP's Web site and one hour to print,
copy and replace current posters with the revised notice. Therefore,
OFCCP estimates that the burden of this provision is 625,000 hours
(500,000 contractor companies x 1.25 hours). OFCCP assumes that 95
percent of the time for this activity (finding the notice online;
printing, copying, and posting the notice) will be at the
administrative support level and 5 percent (reviewing the notice) will
be at the management, professional, and related occupations level.
Thus, the cost for this provision is $15,998,438 ((625,000 hours x 0.05
x $51.58) + (625,000 hours x 0.95 x $24.23) = $15,998,438). OFCCP
believes that contractors will have some operations and maintenance
costs associated with this provision and those costs are detailed in
the Operations and Maintenance discussion, below.
Sections 60-1.4(a), paragraph 2 of the Equal Opportunity Clause,
and 1.4(b), paragraph 2 of the Equal Opportunity Clause, require
contractors to expressly state in solicitations for employees that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, sexual orientation, gender
identity, or national origin. Section 60-1.41(a) details the options
available to contractors for complying with this requirement, which
range from stating in employment solicitations that ``all qualified
applicants will receive consideration for employment without regard to
race, color, religion, sex, sexual orientation, gender identity, or
national origin'' to simply including the phrase ``an equal opportunity
employer.'' \9\ While some contractors include the detailed list,
others include the phrase ``equal opportunity employer.'' OFCCP
estimates that 50 percent of contractors will include the detailed
list, and the remainder will use ``an equal opportunity employer.''
Thus, OFCCP acknowledges that 50 percent or 250,000 contractors that
include the detailed list will thus be affected by this change. OFCCP
believes that contractors will modify their existing solicitation or
job advertisement templates to incorporate the revised terminology. A
substantial number of contractors are unlikely to see an increased
cost, though, as most costs involved with advertisements and
solicitations are not based on the number of words or specific words
included. Therefore, OFCCP believes that the cost of the solicitation
or advertisement will not be greatly impacted by adding the words
``sexual orientation'' and ``gender identity'' to the advertisement.
OFCCP believes that contractors will spend approximately 15 minutes
modifying existing job posting templates to ensure the additional words
are added. The burden for this provision is 62,500 hours (250,000
contractors x 0.25
[[Page 72989]]
hours). The cost for incorporating the changes into the Equal
Opportunity Clause is $1,941,719 ((62,500 hours x 0.25 x $51.58) +
(62,500 x 0.75 x $24.23) = $1,941,719).
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\9\ The other options include using an insignia approved by the
Director of OFCCP in job advertisements and including a single
advertisement in a group of advertisements which includes the
statement that ``all qualified applicants will receive consideration
for employment without regard to race, color, religion, sex, sexual
orientation, gender identify, or national origin.'' Based on OFCCP's
reviews of job advertisements, contractors typically use either the
``equal opportunity employer'' tag line or include ``all qualified
applicants will receive consideration for employment without regard
to race, color, religion, sex, sexual orientation, gender identify,
or national origin.''
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Section 60-1.8 requires contractors to ensure that facilities
provided for employees are not segregated by any of the covered bases.
This rule adds sexual orientation and gender identity as prohibited
bases of segregation in the existing provision. OFCCP believes that
this modification will not incur additional burden, as the provision
does not require contractors to modify or construct additional
facilities, but rather only provide equal access to any facilities that
exist.
Section 60-1.10 prohibits contractors from discriminating against
employees for work to be performed in the United States or abroad. It
provides an exemption for employees hired outside the United States.
Further, if a contractor is unable to obtain a visa of entry for an
employee or potential employee to a country in which or with which it
is doing business, and it believes that refusal is due to a basis
covered by EO 11246, as amended by EO 13672, then the contractor must
immediately notify the OFCCP and the Department of State. Neither OFCCP
nor the current office directors or senior officials in the Department
of State's Bureau of Political-Military Affairs have received any visa
denial notifications related to the existing protected categories.
There is no precise way of calculating how many LGBT employees of
federal contractors will travel to foreign countries for work-related
purposes. Although there is no single, authoritative source of labor
force population data regarding sexual orientation and gender identity,
separate independent surveys published between 2011 and 2014 estimate
that between 2.3 and 4.0 percent of the U.S. population identify as
LGBT.\10\ This represents approximately 3.6 to 6.2 million LGBT
individuals in the civilian labor force, approximately 1.5 to 2.6
million of who are employed by federal contractors.\11\ According to
the Department of Commerce's International Trade Administration,
4,875,000 U.S. residents departed the country for business or
convention purposes in 2013, representing approximately 3.1 percent of
the civilian labor force.\12\ In the absence of data as to what percent
of the LGBT employees in the federal contractor workforce would depart
the country for business or convention purposes, a conservative
estimate is that 6.1 percent (double the rate of the general national
civilian labor force) of LGBT employees in the federal contractor
workforce may visit foreign countries for work purposes, yielding a
total of 91,500 to 158,600 LGBT employees each year.
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\10\ This estimated range is derived from four separate sources:
(1) Brian W. Ward, Ph.D. et al., Centers for Disease Control and
Prevention, Sexual Orientation and Health Among U.S. Adults:
National Health Interview Survey, 2013 (July 15, 2014), http://www.cdc.gov/nchs/data/nhsr/nhsr077.pdf (last accessed Nov. 28, 2014)
(Survey of approximately 35,000 adults, age 18 and over found 2.3
percent identified as gay/lesbian or bisexual. An additional 1.1
percent identified as ``something else.''); (2) Gary J. Gates and
Frank Newport, The Gallup Organization, Special Report: 3.4% of U.S.
Adults Identify as LGBT (October 18, 2012), http://www.gallup.com/poll/158066/special-report-adults-identify-lgbt.aspx?utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines (last
accessed Nov. 28, 2014) (Gallup poll of a representative sample of
120,000 adults conducted in 2012 found 3.4 percent identified as
LGBT); (3) Movement Advancement Project, Center for American
Progress, Human Rights Campaign, A Broken Bargain: Discrimination,
Fewer Benefits, and More Taxes for LGBT Workers at 5 (June 2013),
http://www.americanprogress.org/issues/lgbt/report/2013/06/04/65133/a-broken-bargain/ (last accessed Nov. 28, 2014) (2011 study
aggregating results of five separate surveys conducted between 2004
and 2009 found 3.5 percent of those surveyed identified as lesbian,
gay, or bisexual and 0.3 percent identified as transgender); and (4)
Jennifer C. Pizer, Brad Sears, Christy Mallory, and Nan D. Hunter,
Evidence of Persistent and Pervasive Workplace Discrimination
Against LGBT People: The Need for Federal Legislation Prohibiting
Discrimination and Providing for Equal Employment Benefits, 45 Loy.
L.A. L. Rev. 715, 717 (2012), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Pizer-Mallory-Sears-Hunter-ENDA-LLR-2012.pdf
(last accessed Nov. 28, 2014) (analyzing a 2002 study from the
National Survey of Family Growth finding 4 percent of the U.S.
workforce identified as lesbian, gay, bisexual, or transgender).
\11\ Recent BLS data indicates that in October 2014 there were
approximately 156 million people in the civilian labor force. U.S.
Department of Labor Bureau of Labor Statistics, Table A-1,
Employment Status of the Civilian Population by Sex and Age, online
at http://www.bls.gov/news.release/empsit.t01.htm (last accessed
Nov. 28, 2014). The estimated range of LGBT workers in the civilian
labor force was derived by applying the 2.3 to 4.0 percent range to
the total number of people in the civilian labor force, while the
estimated range of LGBT federal contractor workers was derived by
applying the 2.3 to 4.0 percent range to the contractor work force
data from SAM (65 million).
\12\ U.S. Department of Commerce, International Trade
Administration, National Travel and Tourism Office, 2013 U.S.
Resident Travel: Business and Convention Travel, available at http://travel.trade.gov/outreachpages/download_data_table/2013-US-Business.pdf (last accessed Nov. 28, 2014). This data excludes U.S.
resident travel to Canada. OFCCP does not believe the exclusion of
Canadian travel will have any impact on the burden incurred.
---------------------------------------------------------------------------
The International Trade Administration tracks patterns as to what
destinations United States residents travel to, both in general and for
work purposes.\13\ There is very limited precedent for LGBT individuals
being denied entry on the basis of sexual orientation or gender
identity. There are two countries with immigration laws that prohibit
entry of ``homosexual'' persons, but there is no indication that these
laws are actively enforced. Statistically, therefore, the percent of
United States resident business travel to countries where LGBT
individuals may face denial of entry on the basis of sexual orientation
or gender identity, due to law or custom, is less than 1 percent.\14\
As an overestimate, presuming all LGBT federal contractor employees who
visit these countries for work purposes are denied a visa on the basis
of sexual orientation or gender identity, this would lead to 915 to
1,586 incidences (or 1 percent of total LGBT employees who travel
abroad for business) per year. To adjust this calculation from an
incidence count to the estimate of burden on contractors, OFCCP assumes
a ratio of one incident per contractor, thus an estimated 1,586
contractors could be impacted by this provision.
---------------------------------------------------------------------------
\13\ See id.; U.S. Department of Commerce, International Trade
Administration, National Travel and Tourism Office, 2013 United
States Resident Travel Abroad, available at http://travel.trade.gov/outreachpages/download_data_table/2013_US_Travel_Abroad.pdf (last
accessed Sept. 30, 2014).
\14\ This figure is derived from tables in the two above-cited
International Trade Administration reports.
---------------------------------------------------------------------------
OFCCP estimates that it will take two hours for a contractor to
identify from the Federal Acquisition Regulation (FAR) a contact at the
Department of State, and prepare and send the notification of visa
denial to the Department of State and OFCCP. Therefore, the burden is
3,172 hours per year (1,586 contractors x 2 hours). Because of the
nature of this provision, OFCCP estimates that 50 percent of the time
addressing this provision will be management and 50 percent of the time
will be administrative. Thus, using the high end of the estimate, the
cost of this provision is estimated as $120,235 ((3,172 hours x 0.50 x
$51.58) + (3,172 hours x 0.50 x $24.23) = $120,235).
The revised regulations incorporate the terms ``sexual
orientation'' and ``gender identity'' into Sec. Sec. 60-2.16 and 60-
4.3. As modified, these provisions state that goals and timetables or
affirmative action standards shall not be used to discriminate against
any person because of their race, color, religion, sex, sexual
orientation, gender identity, or national origin. Because these
incorporations merely clarify that affirmative action programs may not
be used to carry out discrimination prohibited by other sections of the
regulations, and do not require any
[[Page 72990]]
change in contractors' procedures or practices, OFCCP believes that
there are no additional burdens associated with this modification.
Section 60-2.35 states that each contractor's compliance status
with EO 11246 and its implementing regulations will be determined by
analysis of statistical data and other non-statistical information. The
change in the regulation adds sexual orientation and gender identity to
the prohibited bases of discrimination. However, as with religion,
contractors are not required to collect, keep, or report data on gender
identity or sexual orientation. As this provision merely explains
OFCCP's processes, no additional burden is incurred.
Section 60-50.5 clarifies that contractors may not use the
Guidelines contained in part 60-50 to discriminate against qualified
applicants and employees on any of the protected bases. The revision to
Sec. 60-50.5 incorporates the terms ``sexual orientation'' and
``gender identity'' into the list of prohibited bases of
discrimination. This provision does not require any action by
contractors, and thus does not incur any additional burden.
Operations and Maintenance Costs
OFCCP estimates that contractors will have some operations and
maintenance costs in addition to the burden calculated above. Sections
60-1.4(a), paragraph 1 of the Equal Opportunity Clause, and 60-1.4(b),
paragraph 1 of the Equal Opportunity Clause, require contractors to
post a specific notice provided by the contracting officer for
employees and applicants. Section 60-1.42 provides the text included in
the notice. OFCCP estimates that contractors will comply with this
provision by posting the notice on bulletin boards. The notice is
publicly available on OFCCP's Web site and prints on 2 letter-sized
sheets of paper. OFCCP assumes that on average these contractors will
post it on 10 bulletin boards. Therefore, OFCCP estimates the
operations and maintenance cost of this recurring burden to be $800,000
(500,000 x 2 pages x 10 copies x $0.08 = $800,000).
Summary of Total and Annual Costs
Contractors affected by this rule will have different burdens based
on whether they are required to report to the Department of State and
OFCCP. Thus, in summarizing the costs, Table 1 details the burden for
those contractors that are affected by the visa denial reporting
provision (``the visa reporting provision''). The recurring cost in
Table 1 is limited to reporting denied visas to the Department of State
and OFCCP. There are no recurring burdens or costs for ensuring that
facilities are not segregated, contractor funded or reimbursed
memberships are nondiscriminatory, placement goals do not provide a
prohibited preference, nor are there any such burdens or costs
associated with with the non-discrimination provisions of Part 60-50,
or by the fact that OFCCP's determination of compliance considers both
statistical data and non-statistical data. Table 2 details the burden
for those contractors that are not affected by the visa reporting
provision. There are no recurring burdens or costs for this reporting
provision; however, there are one-time costs.
Table 1--Burden and Costs for Contractors Affected by the Visa Reporting
Provision
------------------------------------------------------------------------
Section Burden hours Costs
------------------------------------------------------------------------
Estimated One-Time Burden:
Regulatory Familiarization.......... 1,586 $81,806
Amending the Equal Opportunity 397 12,334
Clause.............................
Posting the notice for employees and 1,983 50,760
applicants.........................
Amending the tag line for 198 6,151
solicitations and job
advertisements.....................
-------------------------------
One-time Burden................. 4,164 151,051
------------------------------------------------------------------------
Estimated Recurring Burden:
Reporting denied visas to Department 3,172 120,235
of State and OFCCP.................
Total Annual Recurring Burden....... 3,172 120,235
Estimated Operations and Maintenance 0 2,538
-------------------------------
Total Burden and Cost of the 7,336 273,824
Rule...........................
------------------------------------------------------------------------
Table 2--Burden and Costs for Contractors Not Affected by the Visa
Reporting Provision
------------------------------------------------------------------------
Section Burden hours Costs
------------------------------------------------------------------------
Estimated One-Time Burden:
Regulatory Familiarization.......... 498,414 $25,708,194
Amending the Equal Opportunity 124,604 3,871,135
Clause.............................
Posting the notice for employees and 623,018 15,947,703
applicants.........................
Amending the tag line for solicitations 62,302 1,935,567
and job advertisements.................
-------------------------------
One-time Burden................. 1,308,338 47,462,599
Total Annual Recurring Burden... 0 0
Estimated Operations and 0 797,462
Maintenance....................
-------------------------------
Total Burden and Cost of the 1,308,338 48,260,061
Rule.......................
------------------------------------------------------------------------
OFCCP estimates the total cost of the rule at $273,824 or $173 per
affected contractor for those contractors affected by the visa
reporting provision and $48,260,061 or $97 per contractor for those
contractors not affected by the visa reporting provision. If combined,
the total cost of the rule would be $48,533,885. Yet, this rule applies
to
[[Page 72991]]
contractors who enter into new and modified contracts on or after the
effective date of the rule. Thus, some portion of the cost of the rule
will not be realized in the first year and may be manifested over at
least five years. There are a number of reasons why the pattern of
impacts over time is difficult to estimate: there is limited
information regarding the number of new Federal contractors in a year,
the number of Federal contractors can be fluid, and the terms of
contracts may range in duration. While it might be plausible to assume
that approximately 20 percent of contracts are new or modified each
year, this rule applies to contractors, rather than contracts, and thus
its impacts are likely to be relatively high in the first year or two,
with lesser impacts through the fifth year of implementation. After
all, it is common for contractors to have multiple contracts, and
compliance with this rule will be required when the first of such
contracts is renewed or modified.
However, there is no precise data with which to determine the
number of new Federal contractors and subcontractors each year. Using a
2012 Small Business Administration study, OFCCP determined that, on
average, 17.6 percent of Federal contractors that are small businesses
were new to Federal contracting.\15\ Recognizing that there is limited
information regarding the number of new contractors in a year, that the
terms of contracts may range in duration, that the rule applies to
modifications to existing contracts, and taking into account the
variety of industries affected by this rule, OFCCP conservatively
assumes for the purposes of this analysis that roughly 20 percent of
Federal contractors will be new each year. Thus, Table 3 shows the
annual cost of this rule over the next five years for contractors
affected by the reporting provision and Table 4 shows the annual cost
of the rule over the next five years for those contractors not affected
by the reporting provision.
---------------------------------------------------------------------------
\15\ Small Business Administration, ``Characteristics of Recent
Federal Small Business Contracting,'' May 2012, http://www.sba.gov/sites/default/files/397tot.pdf (last accessed Nov. 28, 2014).
Table 3--Annual Cost Summary for Contractors Affected by the Reporting Provisions *
----------------------------------------------------------------------------------------------------------------
Contractors One-time cost Recurring cost Total cost
----------------------------------------------------------------------------------------------------------------
Year 1.......................................... 317 $30,718 $24,047 $54,765
Year 2.......................................... 634 30,718 48,094 78,812
Year 3.......................................... 952 30,718 72,141 102,859
Year 4.......................................... 1,268 30,718 96,188 126,906
Year 5.......................................... 1,586 30,718 120,235 150,953
----------------------------------------------------------------------------------------------------------------
* The annual cost summary includes the one-time burden which occurs in the first year the contractor is covered
and the recurring burden that increases by 20 percent annually up through the fifth year when the entire
affected universe will be covered by the rule.
Table 4--Annual Cost Summary for Contractors Not Affected by the
Reporting Provisions *
------------------------------------------------------------------------
Contractors Cost
------------------------------------------------------------------------
Year 1.................................. 99,683 $9,652,012
Year 2.................................. 99,683 9,652,012
Year 3.................................. 99,683 9,652,012
Year 4.................................. 99,683 9,652,012
Year 5.................................. 99,683 9,652,012
------------------------------------------------------------------------
* This reflects the one-time cost associated with the provisions of this
rule.
Regulatory Flexibility Act and Executive Order 13272 (Consideration of
Small Entities)
Because no notice of proposed rulemaking is required for the rule
under 5 U.S.C. 553(b)(B), the requirements of the Regulatory
Flexibility Act and Executive Order 13272, pertaining to regulatory
flexibility analysis, do not apply to this rule. See 5 U.S.C. 601(2),
603(a). Accordingly, OFCCP has not prepared a regulatory flexibility
analysis.
Paperwork Reduction Act
Compliance Date: The requirements apply to contracts entered into
or modified on or after the effective date of these rules. Affected
parties do not have to comply with the amended information collections
contained in this rule until the Department publishes a Notice in the
Federal Register stating that the OMB has approved the information
collections under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C.
3501 et seq., or until this rule otherwise takes effect, whichever is
later.
As part of its continuing effort to reduce paperwork burdens, the
Department conducts a preclearance consultation program to provide the
general public and Federal agencies with an opportunity to comment on
collections of information in accordance with the Paperwork Reduction
Act of 1995 (PRA), 44 U.S.C. 3506(c)(2)(A). This program helps to
ensure that requested data can be provided in the desired format,
reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the impact of
collection requirements on respondents can be properly assessed. The
PRA typically requires an agency to provide notice and seek public
comments on any collection of information contained in a rule. See 44
U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. Persons are not required to respond
to a collection of information until it is approved by OMB under the
PRA.
This rule, which implements the provisions of Executive Order
13672, contains several provisions that could be considered amendments
to ``collections of information'' as defined by the PRA. Specifically,
the amendments to the Equal Opportunity Clause that is incorporated
into covered subcontracts and purchase orders, to the notifications
that must be given to employees and job applicants, and to the visa
reporting provision contained in section 60-1.10. Sections 60-1.4(a),
paragraph 1 of the Equal Opportunity Clause, and 60-1.4(b), paragraph 1
of the Equal Opportunity Clause, require contractors to post a notice
for job applicants and employees. The notice is
[[Page 72992]]
provided by Federal contracting officers. The disclosure of information
originally supplied by the Federal Government to the recipient for the
purpose of disclosure is not included within the PRA's definition of
``collection of information.'' See 5 CFR 1320.3(c). OFCCP has
determined that the posting requirements found in sections 60-1.4(a),
paragraph 1 of the Equal Opportunity Clause, and 60-1.4(b), paragraph 1
of the Equal Opportunity Clause, do not meet the PRA's definition of
``collection of information.'' Therefore, these provisions are not
subject to the PRA's requirement. OFCCP, however, determined that the
amendments to paragraphs 2 and 7 of the Equal Opportunity Clauses at
60-1.4(a) and 60-1.4(b), and to the reporting provisions found at 60-
1.10 could be considered information collections, thus an information
collection request (ICR), has been submitted to OMB for approval.
Concurrently with this final rule, OFCCP is publishing a notice of
proposed amended information collection in the Federal Register. See 44
U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.
Number of Respondents:
This rule affects only contractors who enter into new or modified
contracts with the Federal Government; it does not apply to those
contractors who only have contracts entered into or last modified
before the effective date. Thus, all new non-exempt Federal contractors
with contracts, subcontracts, federally assisted construction contracts
or subcontracts in excess of $10,000 are required to comply with the
rule. There are approximately 500,000 contractor firms registered in
the General Service Administration (GSA)'s System for Award Management
(SAM). OFCCP estimates that approximately 20 percent or 100,000 of its
Federal contractor universe will be affected by this rule each year
until its full implementation in five years. Therefore, OFCCP estimates
there are 100,000 contractor firms affected by this rule annually.
Summary of Paperwork Burden
The total estimated burden for contractor companies to comply with
the revised regulations is listed in the tables below. It is calculated
based on a three-year approval of this information collection request.
Table 5 shows the estimated PRA burden for those contractors affected
by the visa reporting provision. Table 6 shows the estimated PRA burden
for those contractors not affected by the visa reporting provision.
Table 5--Estimated Annual PRA Burden for Contractors Affected by the
Visa Reporting Provision
[3 years]
------------------------------------------------------------------------
Estimated
Requirement annual burden Monetization
hours
------------------------------------------------------------------------
Amending the Equal Opportunity Clause... 79 $2,467
Amending the tag line for solicitations 40 1,230
and job advertisements.................
Reporting denied visas to Department of 1,269 48,094
State and OFCCP........................
-------------------------------
Total Annual Cost................... 1,388 51,791
------------------------------------------------------------------------
Table 6--Estimated Annual PRA Burden for Contractors Not Affected by the
Visa Reporting Provision
[3 years]
------------------------------------------------------------------------
Estimated
Requirement annual burden Monetization
hours
------------------------------------------------------------------------
Amending the Equal Opportunity Clause... 24,921 $774,227
Amending the tag line for solicitations 12,460 387,113
and job advertisements.................
Reporting denied visas to Department of 0 0
State and OFCCP........................
-------------------------------
Total Annual Cost................... 37,381 1,161,340
------------------------------------------------------------------------
These paperwork burden estimates are summarized as follows:
Type of Review: Amended collection.
Agency: Office of Federal Contract Compliance Programs, Department
of Labor.
Title: Implementation of Executive Order 13672 Prohibiting
Discrimination Based on Sexual Orientation and Gender Identity by
Contractors and Subcontractors.
OMB ICR Reference Number: 1250-0NEW.
Affected Public: Business or other for-profit; individuals.
Average Number of Annual Responses: 100,000.
Frequency of Response: on occasion.
Estimated Annual Burden Hours: 38,769.
Estimated Total Annual PRA Costs: $0.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of the United States-based companies to
compete with foreign-based companies in domestic and export markets.
Unfunded Mandates Reform Act of 1995
For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, this rule does not include any Federal mandate that may result in
excess of $100 million in expenditures by state, local, and tribal
governments in the aggregate or by the private sector.
Executive Order 13132 (Federalism)
OFCCP has reviewed this rule in accordance with Executive Order
13132 regarding federalism, and has determined that it does not have
``federalism implications.'' This rule will not ``have substantial
direct effects
[[Page 72993]]
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government.''
Executive Order 13175 (Consultation and Coordination With Indian Tribal
Governments)
This rule does not have tribal implications under Executive Order
13175 that requires a tribal summary impact statement. The rule does
not have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes or on
the distribution of power and responsibilities between the Federal
government and Indian tribes.
Effects on Families
The undersigned hereby certifies that the rule would not adversely
affect the well-being of families, as discussed under section 654 of
the Treasury and General Government Appropriations Act, 1999.
Executive Order 13045 (Protection of Children)
This rule would have no environmental health risk or safety risk
that may disproportionately affect children.
Environmental Impact Assessment
A review of this rule in accordance with the requirements of the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
1500 et seq.; and DOL NEPA procedures, 29 CFR part 11, indicates the
rule would not have a significant impact on the quality of the human
environment. There is, thus, no corresponding environmental assessment
or an environmental impact statement.
Executive Order 13211 (Energy Supply)
This rule is not subject to Executive Order 13211. It will not have
a significant adverse effect on the supply, distribution, or use of
energy.
Executive Order 12630 (Constitutionally Protected Property Rights)
This rule is not subject to Executive Order 12630 because it does
not involve implementation of a policy that has takings implications or
that could impose limitations on private property use.
Executive Order 12988 (Civil Justice Reform Analysis)
This rule was drafted and reviewed in accordance with Executive
Order 12988 and will not unduly burden the Federal court system. The
rule was: (1) Reviewed to eliminate drafting errors and ambiguities;
(2) written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct and to promote burden reduction.
List of Subjects
41 CFR Part 60-1
Administrative practice and procedure, Equal employment
opportunity, Gender identity, Government contracts, Reporting and
recordkeeping requirements, Sexual orientation.
41 CFR Part 60-2
Equal employment opportunity, Gender identity, Government
procurement, Reporting and recordkeeping requirements, Sexual
orientation.
41 CFR Part 60-4
Construction industry, Equal employment opportunity, Gender
identity, Government procurement, Reporting and recordkeeping
requirements, Sexual orientation.
41 CFR Part 60-50
Equal employment opportunity, Gender identity, Government
procurement, Religious discrimination, Reporting and recordkeeping
requirements, Sexual orientation.
Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.
Accordingly, under authority of Executive Order 13672 and for the
reasons set forth in the preamble, OFCCP amends Title 41 of the Code of
Federal Regulations, Chapter 60 as follows:
PART 60-1--OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS
0
1. Revise the authority citation for 41 CFR part 60-1 to read as
follows:
Authority: Sec. 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-1965
Comp., p. 339, as amended by E.O. 11375, 32 FR 14303, 3 CFR, 1966-
1970 Comp., p. 684, E.O. 12086, 43 FR 46501, 3 CFR, 1978 Comp., p.
230, E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258 and E.O.
13672, 79 FR 42971.
0
2. Revise Sec. 60-1.1 to read as follows:
Sec. 60-1.1 Purpose and application.
The purpose of the regulations in this part is to achieve the aims
of parts II, III, and IV of Executive Order 11246 for the promotion and
insuring of equal opportunity for all persons, without regard to race,
color, religion, sex, sexual orientation, gender identity, or national
origin, employed or seeking employment with Government contractors or
with contractors performing under federally assisted construction
contracts. The regulations in this part apply to all contracting
agencies of the Government and to contractors and subcontractors who
perform under Government contracts, to the extent set forth in this
part. The regulations in this part also apply to all agencies of the
Government administering programs involving Federal financial
assistance which may include a construction contract, and to all
contractors and subcontractors performing under construction contracts
which are related to any such programs. The procedures set forth in the
regulations in this part govern all disputes relative to a contractor's
compliance with his obligations under the equal opportunity clause
regardless of whether or not his contract contains a ``Disputes''
clause. Failure of a contractor or applicant to comply with any
provision of the regulations in this part shall be grounds for the
imposition of any or all of the sanctions authorized by the order. The
regulations in this part do not apply to any action taken to effect
compliance with respect to employment practices subject to title VI of
the Civil Rights Act of 1964. The rights and remedies of the Government
hereunder are not exclusive and do not affect rights and remedies
provided elsewhere by law, regulation, or contract; neither do the
regulations limit the exercise by the Secretary or Government agencies
of powers not herein specifically set forth, but granted to them by the
order.
0
3. Amend Sec. 60-1.4 by revising paragraphs (a) introductory text and
(a)(1) and (2) and (b) introductory text and (b)(1) and (2) to read as
follows:
Sec. 60-1.4 Equal opportunity clause.
(a) Government contracts. Except as otherwise provided, each
contracting agency shall include the following equal opportunity clause
contained in section 202 of the order in each of its Government
contracts (and modifications thereof if not included in the original
contract):
During the performance of this contract, the contractor agrees as
follows:
(1) The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, sexual
orientation, gender identity, or national origin. The contractor will
take
[[Page 72994]]
affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race,
color, religion, sex, sexual orientation, gender identity, or national
origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including
apprenticeship. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided by the contracting officer setting forth the provisions of
this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, sexual orientation, gender
identity, or national origin.
* * * * *
(b) Federally assisted construction contracts. (1) Except as
otherwise provided, each administering agency shall require the
inclusion of the following language as a condition of any grant,
contract, loan, insurance, or guarantee involving federally assisted
construction which is not exempt from the requirements of the equal
opportunity clause:
The applicant hereby agrees that it will incorporate or cause to be
incorporated into any contract for construction work, or modification
thereof, as defined in the regulations of the Secretary of Labor at 41
CFR chapter 60, which is paid for in whole or in part with funds
obtained from the Federal Government or borrowed on the credit of the
Federal Government pursuant to a grant, contract, loan insurance, or
guarantee, or undertaken pursuant to any Federal program involving such
grant, contract, loan, insurance, or guarantee, the following equal
opportunity clause:
During the performance of this contract, the contractor agrees as
follows:
(1) The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, sexual
orientation, gender identity, or national origin. The contractor will
take affirmative action to ensure that applicants are employed, and
that employees are treated during employment without regard to their
race, color, religion, sex, sexual orientation, gender identity, or
national origin. Such action shall include, but not be limited to the
following: Employment, upgrading, demotion, or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including
apprenticeship. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all
qualified applicants will receive considerations for employment without
regard to race, color, religion, sex, sexual orientation, gender
identity, or national origin.
* * * * *
0
4. Revise Sec. 60-1.8 to read as follows:
Sec. 60-1.8 Segregated facilities.
To comply with its obligations under the Order, a contractor must
ensure that facilities provided for employees are provided in such a
manner that segregation on the basis of race, color, religion, sex,
sexual orientation, gender identity, or national origin cannot result.
The contractor may neither require such segregated use by written or
oral policies nor tolerate such use by employee custom. The
contractor's obligation extends further to ensuring that its employees
are not assigned to perform their services at any location, under the
contractor's control, where the facilities are segregated. This
obligation extends to all contracts containing the equal opportunity
clause regardless of the amount of the contract. The term
``facilities,'' as used in this section, means waiting rooms, work
areas, restaurants and other eating areas, time clocks, restrooms, wash
rooms, locker rooms, and other storage or dressing areas, parking lots,
drinking fountains, recreation or entertainment areas, transportation,
and housing provided for employees; Provided, That separate or single-
user restrooms and necessary dressing or sleeping areas shall be
provided to assure privacy between the sexes.
0
5. Revise Sec. 60-1.10 to read as follows:
Sec. 60-1.10 Foreign government practices.
Contractors shall not discriminate on the basis of race, color,
religion, sex, sexual orientation, gender identity, or national origin
when hiring or making employee assignments for work to be performed in
the United States or abroad. Contractors are exempted from this
obligation only when hiring persons outside the United States for work
to be performed outside the United States (see 41 CFR 60-1.5(a)(3)).
Therefore, a contractor hiring workers in the United States for either
Federal or nonfederally connected work shall be in violation of
Executive Order 11246, as amended, by refusing to employ or assign any
person because of race, color, religion, sex, sexual orientation,
gender identity, or national origin regardless of the policies of the
country where the work is to be performed or for whom the work will be
performed. Should any contractor be unable to acquire a visa of entry
for any employee or potential employee to a country in which or with
which it is doing business, and which refusal it believes is due to the
race, color, religion, sex, sexual orientation, gender identity, or
national origin of the employee or potential employee, the contractor
must immediately notify the Department of State and the Deputy
Assistant Secretary of such refusal.
Subpart B--General Enforcement; Compliance Review and Complaint
Procedure
0
6. Amend Sec. 60-1.20 by revising paragraph (a) introductory text to
read as follows:
Sec. 60-1.20 Compliance evaluations.
(a) OFCCP may conduct compliance evaluations to determine if the
contractor maintains nondiscriminatory hiring and employment practices
and is taking affirmative action to ensure that applicants are employed
and that employees are placed, trained, upgraded, promoted, and
otherwise treated during employment without regard to race, color,
religion, sex, sexual orientation, gender identity, or national origin.
A compliance evaluation may consist of any one or any combination of
the following investigative procedures:
* * * * *
0
7. Amend Sec. 60-1.41 by revising the introductory text and paragraphs
(a) and (c) to read as follows:
Sec. 60-1.41 Solicitations or advertisements for employees.
In solicitations or advertisements for employees placed by or on
behalf of a prime contractor or subcontractor, the requirements of
paragraph (2) of the equal opportunity clause in Sec. 60-1.4 shall be
satisfied whenever the prime contractor or subcontractor complies with
any of the following:
(a) States expressly in the solicitations or advertising that all
qualified
[[Page 72995]]
applicants will receive consideration for employment without regard to
race, color, religion, sex, sexual orientation, gender identity, or
national origin;
* * * * *
(c) Uses a single advertisement, and the advertisement is grouped
with other advertisements under a caption which clearly states that all
employers in the group assure all qualified applicants equal
consideration for employment without regard to race, color, religion,
sex, sexual orientation, gender identity, or national origin;
* * * * *
0
8. Revise Sec. 60-1.42 to read as follows:
Sec. 60-1.42 Notices to be posted.
(a) Unless alternative notices are prescribed by the Deputy
Assistant Secretary, the notices which contractors are required to post
by paragraphs (1) and (3) of the equal opportunity clause in Sec. 60-
1.4 will contain the following language and be provided by the
contracting or administering agencies:
Equal Employment Opportunity Is the Law--Discrimination Is Prohibited
by the Civil Rights Act of 1964 and by Executive Order No. 11246
Title VII of the Civil Rights Act of 1964--Administered by:
The Equal Employment Opportunity Commission
Prohibits discrimination because of Race, Color, Religion, Sex, or
National Origin by Employers with 15 or more employees, by Labor
Organizations, by Employment Agencies, and by Apprenticeship or
Training Programs
Any person who believes he or she has been discriminated against should
contact
The Equal Employment Opportunity Commission, 1801 L Street NW.,
Washington, DC 20507
Executive Order No. 11246--Administered by:
The Office of Federal Contract Compliance Programs
Prohibits discrimination because of Race, Color, Religion, Sex,
Sexual Orientation, Gender Identity, or National Origin, and requires
affirmative action to ensure equality of opportunity in all aspects of
employment.
By all Federal Government Contractors and Subcontractors, and by
Contractors Performing Work Under a Federally Assisted Construction
Contract, regardless of the number of employees in either case.
Any person who believes he or she has been discriminated against should
contact
The Office of Federal Contract Compliance Programs, U.S. Department of
Labor, Washington, DC 20210
PART 60-2--AFFIRMATIVE ACTION PROGRAMS
0
9. Revise the authority citation for 41 CFR part 60-2 to read as
follows:
Authority: Sec. 201, E.O. 11246, 30 FR 12319, E.O. 11375, 32 FR
14303, as amended by E.O. 12086, 43 FR 46501, and E.O. 13672, 79 FR
42971.
0
10. Amend Sec. 60-2.16 by revising paragraph (e)(2) to read as
follows:
Sec. 60-2.16 Placement goals.
* * * * *
(e) * * *
(2) In all employment decisions, the contractor must make
selections in a nondiscriminatory manner. Placement goals do not
provide the contractor with a justification to extend a preference to
any individual, select an individual, or adversely affect an
individual's employment status, on the basis of that person's race,
color, religion, sex, sexual orientation, gender identity, or national
origin.
* * * * *
0
11. Revise Sec. 60-2.35 to read as follows:
Sec. 60-2.35 Compliance status.
No contractor's compliance status will be judged alone by whether
it reaches its goals. The composition of the contractor's workforce
(i.e., the employment of minorities or women at a percentage rate
below, or above, the goal level) does not, by itself, serve as a basis
to impose any of the sanctions authorized by Executive Order 11246 and
the regulations in this chapter. Each contractor's compliance with its
affirmative action obligations will be determined by reviewing the
nature and extent of the contractor's good faith affirmative action
activities as required under Sec. 60-2.17, and the appropriateness of
those activities to identified equal employment opportunity problems.
Each contractor's compliance with its nondiscrimination obligations
will be determined by analysis of statistical data and other non-
statistical information which would indicate whether employees and
applicants are being treated without regard to their race, color,
religion, sex, sexual orientation, gender identity, or national origin.
PART 60-4--CONSTRUCTION CONTRACTORS--AFFIRMATIVE ACTION
REQUIREMENTS
0
12. Revise the authority citation for 41 CFR part 60-4 to read as
follows:
Authority: Secs. 201, 202, 205, 211, 301, 302, and 303 of E.O.
11246, as amended, 30 FR 12319; 32 FR 14303, as amended by E.O.
12086; and E.O. 13672, 79 FR 42971.
0
13. Amend Sec. 60-4.3 in paragraph (a), by revising paragraph 10 in
the clause to read as follows:
Sec. 60-4.3 Equal opportunity clauses.
(a) * * *
Standard Federal Equal Employment Opportunity Construction Contract
Specifications (Executive Order 11246)
* * * * *
10. The Contractor shall not use the goals and timetables or
affirmative action standards to discriminate against any person because
of race, color, religion, sex, sexual orientation, gender identity, or
national origin.
* * * * *
PART 60-50--GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION OR
NATIONAL ORIGIN
0
14. Revise the authority citation for 41 CFR part 60-50 to read as
follows:
Authority: Sec. 201 of E.O. 11246, as amended, 30 FR 12319; 32
FR 14303, as amended by E.O. 12086; and E.O. 13672, 79 FR 42971.
0
15. Revise Sec. 60-50.5 to read as follows:
Sec. 60-50.5 Nondiscrimination.
The provisions of this part are not intended and shall not be used
to discriminate against any qualified employee or applicant for
employment because of race, color, religion, sex, sexual orientation,
gender identity or national origin.
[FR Doc. 2014-28902 Filed 12-5-14; 1:30 pm]
BILLING CODE 4510-CM-P