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• Federal Contracting Laws Now Prohibit Discrimination Based on "Gender Identity"

Federal Contracting Laws Now Prohibit Discrimination Based on "Gender Identity"

By Richard Mathews

As of April 8, 2015, new and modified federal contracts, subcontracts, and vendor agreements are subject to a new ban on sexual-orientation and gender-identity job discrimination. The federal government has not yet clarified how the new ban intersects with the right of religious contractors, under federal contracting rules, to consider religion when hiring and firing (the religious staffing exemption). The new rules apply specifically to federal contracting, and not (YET) to federal grants.

Here are the Department of Labor OFCCP Definitions:

"The term “gender identity” refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others."

"'Sexual orientation' refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual."

There is an exemption that allows religious organizations to prefer to employ only members of a particular faith, but it does NOT allow religious organizations to discriminate in employment on the basis of race, color, sex, sexual orientation, gender identity, or national origin.

The Supreme Court has recognized that the First Amendment requires a “ministerial exception” from employment discrimination laws, which prohibits the government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy.

In determining whether the ministerial exception applies to an employer’s decision in a particular case under Executive Order 11246, OFCCP, as guided by Supreme Court precedent, makes an assessment of all of the facts and circumstances of employment, including the functions performed by the employee, the job title given to and used by the employee, and the amount of time the employee spends on particular activities.

It is reasonable to expect/anticipate that the OFCCP will interpret the US Supreme Court's decision VERY narrowly, and "adverse employment decisions" regarding anyone not "clergy" will be scrutinized by the OFCCP.