5246 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 

1 41 CFR 60–1.5 exempts certain Federal and 

federally assisted contractors and subcontractors 

from coverage. That section exempts contracts and 

subcontracts not exceeding $10,000 (§ 60–1.5(a)(1)); 

certain contracts and subcontracts for indefinite 

quantities (§ 60–1.5(a)(2)); work performed outside 

the United States by employees who were not 

recruited within the United States (§ 60–1.5(a)(3)); 

contracts with certain religious entities and 

educational institutions (§ 60–1.5(a)(5) and (6)); 

specific contracts and facilities exempted by the 

Director of the OFCCP when required by ‘‘special 

circumstances in the national interest’’ (§ 60– 

1.5(b)(1)) or because they are ‘‘separate and distinct 

from activities . . . related to the performance of 

the contract or subcontract’’ (§ 60–1.5(b)(2); and 

contracts determined to be essential to the national 

security (§ 60–1.5(c)). 

2Executive Order 13672, issued on July 21, 2014, 

added sexual orientation and gender identity to 

Executive Order 11246 as prohibited bases of 

discrimination. It applies to contracts entered into 

on or after April 8, 2015, the effective date of the 

implementing regulations promulgated thereunder. 

3Title VII of the Civil Rights Act of 1964, 42 

U.S.C. 2000e–2000e–17; U.S. Department of Labor, 

Office of Federal Contract Compliance Programs, 

Federal Contract Compliance Manual, ch. 2, 

§ 2H01(c), available at http://www.dol.gov/ofccp/

regs/compliance/fccm/FCCM_FINAL_508c.pdf (last 

accessed June 6, 2014) (hereinafter FCCM). 

4Executive Order 12067, 43 FR 28967, 3 CFR, 

1978 Comp., p. 206. The U.S. Department of Justice 

also enforces portions of title VII, as do state Fair 

Employment Practice Agencies (FEPA). 

DEPARTMENT OF LABOR 

Office of Federal Contract Compliance 

Programs 

41 CFR Part 60–20 

[01 14 15 OFCCP] 

RIN 1250–AA05 

Discrimination on the Basis of Sex 

AGENCY: Office of Federal Contract 

Compliance Programs, Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Labor’s (‘‘DOL’’) Office of Federal 

Contract Compliance Programs 

(‘‘OFCCP’’) is proposing regulations that 

would set forth requirements that 

covered Federal Government contractors 

and subcontractors and federally 

assisted construction contractors and 

subcontractors must meet in fulfilling 

their obligations under Executive Order 

11246, as amended, to ensure 

nondiscrimination in employment on 

the basis of sex and to take affirmative 

action to ensure that applicants are 

employed, and that employees are 

treated during employment, without 

regard to their sex. This proposal would 

substantially revise the existing Sex 

Discrimination Guidelines, which have 

not been substantively updated since 

1970, and replace them with regulations 

that align with current law and legal 

principles and address their application 

to current workplace practices and 

issues. Most of the proposed provisions 

in this NPRM would clarify wellestablished case law or applicable 

requirements from other Federal 

agencies and therefore would not 

change existing requirements for entities 

affected by this rule. The NPRM’s 

approach with respect to pregnancy 

accommodation is consistent with the 

interpretation of the Pregnancy 

Discrimination Act adopted by the 

Equal Employment Opportunity 

Commission (EEOC) and by the 

Government in Young v. United Parcel 

Serv., Inc., 707 F.3d 437 (4th Cir. 2013), 

cert. granted (U.S. No. 12–1226, July 1, 

2014). 

DATES: To be assured of consideration, 

comments must be received on or before 

March 31, 2015. 

ADDRESSES: You may submit comments, 

identified by RIN number 1250–AA05, 

by any of the following methods: 

• Federal eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 693–1304 (for comments 

of six pages or less). 

• Mail: Debra A. Carr, Director, 

Division of Policy, Planning, and 

Program Development, Office of Federal 

Contract Compliance Programs, Room 

C–3325, 200 Constitution Avenue NW., 

Washington, DC 20210. 

Receipt of submissions will not be 

acknowledged; however, the sender may 

request confirmation that a submission 

has been received by telephoning 

OFCCP at (202) 693–0104 (voice) or 

(202) 693–1337 (TTY) (these are not tollfree numbers). 

All comments received, including any 

personal information provided, will be 

available for public inspection during 

normal business hours at Room C–3325, 

200 Constitution Avenue NW., 

Washington, DC 20210, or via the 

Internet at http://www.regulations.gov. 

Upon request, individuals who require 

assistance to review comments will be 

provided with appropriate aids such as 

readers or print magnifiers. Copies of 

this Notice of Proposed Rulemaking 

(NPRM) will be made available in the 

following formats: Large print, 

electronic file on computer disk, and 

audiotape. To schedule an appointment 

to review the comments and/or to obtain 

this NPRM in an alternate format, please 

contact OFCCP at the telephone 

numbers or address listed above. 

FOR FURTHER INFORMATION CONTACT: 

Debra A. Carr, Director, Division of 

Policy, Planning and Program 

Development, Office of Federal Contract 

Compliance Programs, 200 Constitution 

Avenue NW., Room C–3325, 

Washington, DC 20210. Telephone: 

(202) 693–0104 (voice) or (202) 693– 

1337 (TTY). 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Purpose of the Regulatory Action 

The U.S. Department of Labor’s 

(‘‘DOL’’) Office of Federal Contract 

Compliance Programs (‘‘OFCCP’’) is 

proposing regulations that would set 

forth requirements that covered 1

Federal Government contractors and 

subcontractors and federally assisted 

construction contractors and 

subcontractors must meet in fulfilling 

their obligations under Executive Order 

11246, as amended, to ensure 

nondiscrimination in employment on 

the basis of sex and to take affirmative 

action to ensure that applicants are 

employed, and that employees are 

treated during employment, without 

regard to their sex. The OFCCP is 

charged with enforcing Executive Order 

11246, as amended (‘‘Executive Order’’), 

which prohibits covered Federal 

Government contractors and 

subcontractors and federally assisted 

construction contractors and 

subcontractors (‘‘contractors’’) from 

discriminating in employment on the 

basis of race, color, religion, sex, sexual 

orientation, gender identity, or national 

origin.2 The Executive Order also 

requires contractors to ensure equal 

employment opportunity for employees 

and applicants for employment without 

regard to race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin and to take affirmative 

action to ensure that applicants are 

employed, and that employees are 

treated during employment, without 

regard to the enumerated bases. OFCCP 

interprets the nondiscrimination 

provisions of the Executive Order 

consistent with the principles of title VII 

of the Civil Rights Act of 1964 (‘‘title 

VII’’),3 which is enforced, in large part, 

by the Equal Employment Opportunity 

Commission (‘‘EEOC’’), the agency 

responsible for coordinating the Federal 

government’s enforcement of all Federal 

statutes, Executive Orders, regulations, 

and policies requiring equal 

employment opportunity.4

The Sex Discrimination Guidelines at 

41 CFR part 60–20 (‘‘Guidelines’’) set 

forth interpretations and guidelines for 

implementing the Executive Order’s 

nondiscrimination and affirmative 

action requirements related to sex. 

These Guidelines have not been 

substantively updated since they were 


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5 35 FR 8888, June 9, 1970. The Guidelines were 

reissued in 1978 without substantive amendment. 

43 FR 49258, October 20, 1978. 6Executive Order 13672, 79 FR 42971 (July 23, 

2014). 

7Executive Order 11246, § 209(5); 41 CFR 60– 

1.27. 

first promulgated in 1970,5 and fail to 

conform to or reflect current title VII 

jurisprudence or to address the needs 

and realities of the modern workplace. 

Since 1970, there have been historic 

changes to sex discrimination law, in 

both statutory and case law, and to 

contractor policies and practices as a 

result of the nature and extent of 

women’s participation in the labor 

force. Because the existing guidelines 

are so outdated, they may cause some 

Federal contractors to incur unnecessary 

legal and/or management expenses to 

resolve confusion about possibly 

conflicting obligations; updating the 

regulations will reduce the costs that 

such contractors may now incur. 

It is long overdue for part 60–20 to be 

updated. Consequently, OFCCP 

proposes in this NPRM to revise the Sex 

Discrimination Guidelines to align the 

sex discrimination standards under 

Executive Order 11246 with 

developments and interpretations of 

existing title VII principles and OFCCP’s 

corresponding interpretation of the 

Executive Order. 

Statement of Legal Authority 

Issued in 1965, and amended several 

times in the intervening years— 

including once in 1967, to add sex as a 

prohibited basis of discrimination, and 

most recently in 2014, to add sexual 

orientation and gender identity to the 

list of protected bases 6—Executive 

Order 11246 has two purposes. First, it 

prohibits covered Federal contractors 

and subcontractors from discriminating 

against employees and applicants 

because of race, color, religion, sex, 

sexual orientation, gender identity, or 

national origin. Second, it requires 

covered Federal contractors and 

subcontractors to 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. The nondiscrimination and 

affirmative action obligations of Federal 

contractors and subcontractors cover all 

aspects of employment. 

The requirements of the Executive 

Order promote the goals of economy 

and efficiency in Government 

contracting, and the link between them 

is well established. See, e.g, Executive 

Order 10925, 26 FR 1977 (March 8, 

1961) (nondiscrimination and 

affirmative employment programs 

ensure ‘‘the most efficient and effective 

utilization of all available manpower’’). 

Executive Order 11246 regulations 

require government contractors to 

conduct outreach to broaden the 

qualified applicant pool; to identify and 

eliminate any discriminatory practices; 

to apply merit principles; to choose 

applicants for employment without 

regard to race, sex, or national origin; 

and to report their results. See, e.g., 41 

CFR 60–2.10, 60–2.11, 60–2.14, 60–2.16, 

60–2.17, 60–20.6. The sex 

discrimination regulations proposed 

herein outline the sex-discriminatory 

practices that contractors must identify 

and eliminate, and clarify how 

contractors must choose applicants for 

employment without regard to sex. See, 

e.g., proposed § 60–20.2 (clarifying that 

sex discrimination includes 

discrimination on the bases of 

pregnancy, childbirth, related medical 

conditions, gender identity, and 

transgender status, and that disparate 

treatment and disparate impact analyses 

apply to sex discrimination); § 60–20.3 

(clarifying application of the bona fide 

occupational qualification (BFOQ) 

defense to the rule against sex 

discrimination); § 60–20.4, § 60–20.5, 

§ 60–20.6, and § 60–20.8 (clarifying that 

discrimination in compensation; 

discrimination based on pregnancy, 

childbirth, or related medical 

conditions; discrimination in other 

fringe benefits; and sexual harassment, 

respectively, can be unlawful sexdiscriminatory practices); and § 60– 

20.7(c) (clarifying that contractors must 

not choose applicants based on sex 

stereotypes such as ‘‘a sex-based 

assumption that [a female employee] 

. . . will have . . . family caretaking 

responsibilities [that] will interfere with 

her work performance’’). 

Each of these requirements ultimately 

reduces the government’s costs and 

increases the efficiency of its operations 

by ensuring that all employees and 

applicants, including women, are fairly 

considered and that, in its procurement, 

the government has access to, and 

ultimately benefits from, the best 

qualified and most efficient employees. 

Cf. Contractors Ass’n of E. Pa. v. Sec’y 

of Labor, 442 F.2d 159, 170 (3d Cir. 

1971) (‘‘[I]t is in the interest of the 

United States in all procurement to see 

that its suppliers are not over the long 

run increasing its costs and delaying its 

programs by excluding from the labor 

pool available minority workmen.’’). 

The proposed regulations’ requirements 

to eliminate discrimination and to 

choose applicants without regard to sex 

also are consistent with the purposes of 

Title VII to eliminate discrimination in 

employment. 

The requirements in Executive Order 

11246 generally apply to any business 

or organization that (1) holds a single 

Federal contract, subcontract, or 

federally assisted construction contract 

in excess of $10,000; (2) has Federal 

contracts or subcontracts that, 

combined, total in excess of $10,000 in 

any 12-month period; or (3) holds 

Government bills of lading, serves as a 

depository of Federal funds, or is an 

issuing and paying agency for U.S. 

savings bonds and notes in any amount. 

Pursuant to Executive Order 11246, 

receiving a Federal contract comes with 

a number of responsibilities. Section 

202 of this Executive Order requires 

every covered contractor to agree to 

comply with all provisions of the 

Executive Order and the rules, 

regulations, and relevant orders of the 

Secretary of Labor. A contractor in 

violation of Executive Order 11246 may 

be subject to suit for make-whole and 

injunctive relief and to having its 

contracts canceled, terminated, or 

suspended or to debarment after the 

opportunity for a hearing.7

Major Proposed Revisions 

For the reasons stated above, OFCCP 

proposes to revise the Guidelines at part 

60–20 to create new sex discrimination 

regulations that set forth Federal 

contractors’ obligations under Executive 

Order 11246, in accordance with 

existing law and policy. This proposal 

updates the Guidelines to address 

current issues in the workplace, and 

clarifies existing title VII law as it 

relates to sex discrimination, including 

developments and interpretations of 

existing law by the EEOC and OFCCP’s 

corresponding interpretation of the 

Executive Order. It is intended to state 

clearly the existing principles 

applicable to a contractor’s obligation to 

refrain from discrimination in its 

employment policies and practices 

because of sex and to ensure equal 

employment opportunity on the basis of 

sex. 

The proposal removes a number of 

outdated provisions in the current 

Guidelines; restates, reorganizes, and 

clarifies others; and adds new ones that 

address legal developments that have 

arisen since 1970. Where current 

provisions of the Guidelines are 

uncontradicted by the proposed part 

60–20, but are omitted because they are, 

as a practical matter, outdated, their 

omission does not mean that they are 

not still good law. For example, 

paragraph 60–20.2(b) currently states 

that ‘‘[a]dvertisement in newspapers 


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8Recruitment for individuals of a certain sex for 

particular jobs, including recruitment by 

advertisement, is covered in proposed § 60–20.2(g). 

9 29 U.S.C. 793. 

10 38 U.S.C. 4212. 

11U.S. General Services Administration, System 

for Award Management, Legacy CCR Extracts Public 

(‘‘FOIA’’) Data Package, May 2014, available at 

https://www.sam.gov/portal/public/SAM/ (last 

accessed June 14, 2014). 

12Women in the Labor Force: A Databook 2, BLS 

Reports, available at http://www.bls.gov/cps/wlfdatabook-2012.pdf (last accessed Oct. 6, 2014) 

[hereinafter Women in the Labor Force]. 

13 Jaime M. Grant, Lisa M. Mottet, & Justin Tanis, 

National Center for Transgender Equality & 

National Gay and Lesbian Task Force, Injustice at 

Every Turn: A Report of the National Transgender 

Discrimination Survey, (2011), available at http:// 

transequality.org/PDFs/Executive_Summary.pdf 

(last accessed Oct. 3, 2014) [hereinafter Injustice at 

Every Turn]. 

14OFCCP estimates approximately 2,046,850 

women in the Federal contractor workforce would 

be pregnant in a year, of whom 21 percent work in 

job categories likely to require accommodations that 

might involve more than a de minimis cost. Because 

the incidence of medical conditions during 

pregnancy that require accommodations ranges 

from 0.5 percent (placenta previa) to 50 percent 

(back issues), OFCCP estimates that of the women 

in positions that require physical exertion or 

standing, half may require some type of an 

accommodation or light duty. Based on a study 

finding that the employers of 91 percent of pregnant 

women who needed and requested a change in 

duties such as less lifting or more sitting attempted 

to address their needs, the proposed rule would 

require covered contractors to accommodate the 

nine percent of women whose needs were not 

addressed or would not have been addressed had 

they requested accommodation. According to the 

Job Accommodation Network, the average cost of an 

accommodation is $500. Therefore, OFCCP 

and other media for employment must 

not express a sex preference unless sex 

is a bona fide occupational qualification 

for the job.’’ This is a correct statement 

of the law, but does not have much 

practical effect, because few job 

advertisements today express a sex 

preference.8 OFCCP seeks comments on 

whether any of the provisions proposed 

for deletion continue to be useful. 

The proposed amendments to part 

60–20 offered herein do not in any way 

alter a contractor’s obligations under all 

other OFCCP regulations. In particular, 

a contractor’s obligations to ensure 

equal employment opportunity and to 

take affirmative action, as set forth in 

parts 60–1, 60–2, 60–3, and 60–4 of this 

title, remain in effect. Similarly, 

inclusion of a provision in part 60–20 

does not in any way alter a contractor’s 

obligations to ensure nondiscrimination 

on the basis of race, color, religion, 

national origin, sexual orientation, and 

gender identity, under the Executive 

Order; on the basis of disability under 

Section 503 of the Rehabilitation Act of 

1973 (‘‘Section 503’’); 9 or on the basis 

of protected veteran status under 38 

U.S.C. 4212 of the Vietnam Era 

Veterans’ Readjustment Assistance 

Act.10

Benefits of the Proposed Rule 

The proposed rule would benefit both 

Federal contractors and their employees 

in several ways. First, by consolidating, 

updating, and clearly and accurately 

stating the existing principles of 

applicable law, including developments 

and interpretations of existing law by 

the EEOC and OFCCP’s corresponding 

interpretation of the Executive Order, 

the proposed rule will facilitate 

contractor understanding and 

compliance and thus reduce contractor 

costs. As discussed above, the existing 

guidelines are extremely outdated and 

therefore do not provide sufficient or 

even accurate guidance to contractors 

regarding their nondiscrimination 

obligations. In fact, because OFCCP’s 

interpretations of a contractor’s 

nondiscrimination mandate on the basis 

of sex follow title VII principles, OFCCP 

no longer enforces part 60–20 to the 

extent that it departs from existing law. 

Maintenance of these outdated and 

inaccurate guidelines in the regulations 

may cause Federal contractors to incur 

unnecessary legal and/or management 

expenses to resolve confusion about 

possibly conflicting obligations. Thus, 

the NPRM will directly reduce the costs 

that some contractors may now incur 

when attempting to comply with part 

60–20. OFCCP requests comment on the 

amount of cost savings covered entities 

may realize because of this rule. 

The NPRM would also benefit the 

employees and job applicants of Federal 

contractors and subcontractors. In 

general, by making it easier for Federal 

contractors to comply with the law, this 

regulation would increase equality of 

employment opportunity for the 

millions of women working for Federal 

contractor establishments. Sixty-five 

million employees work for the Federal 

contractors and other recipients of 

Federal monies that are included in the 

General Service Administration’s 

System for Award Management (SAM) 

database.11 Based on Bureau of Labor 

Statistics data showing that 47 percent 

of the workforce is female,12 OFCCP 

estimates that 30.6 million of the 

employees who work for the Federal 

contractors and other recipients of 

Federal monies are women. 

More specifically, the NPRM would 

advance the employment status of 

female employees of Federal contractors 

in several ways. First, it would address 

both quid pro quo and hostileenvironment sexual harassment. 

Second, it would clarify that adverse 

treatment of an employee because of 

gender-stereotyped assumptions about 

family caretaking responsibilities is 

discrimination. It would clarify that 

childcare leave must be available to 

fathers on the same terms as they are to 

mothers. It would also confirm the 

requirement that contractors provide 

equal retirement benefits to male and 

female employees, even if doing so costs 

more for one sex than the other. 

In addition, by clarifying when 

pregnant workers are entitled to 

workplace accommodations, this 

rulemaking will protect pregnant 

employees who work for Federal 

contractors from losing their jobs, 

wages, and health care coverage. OFCCP 

estimates that 2,046,850 women in the 

Federal contractor workforce are likely 

to become pregnant each year. 

Moreover, by clarifying that 

discrimination against an individual 

because of her or his gender identity is 

unlawful sex discrimination, the NPRM 

would ensure that contractors are aware 

of their nondiscrimination obligations 

with respect to transgender employees 

and would assure equality of 

opportunity for transgender employees, 

the vast majority of whom report that 

they have experienced discrimination in 

the workplace.13

Finally, the NPRM would benefit 

public understanding of the law. 

Removing an ‘‘outmoded’’ and 

‘‘ineffective’’ rule from the Code of 

Federal Regulations is in the public 

interest. This public interest is reflected 

in Section 6 of Executive Order 13563, 

which requires agencies to engage in 

retrospective analyses of their rules 

‘‘and to modify, streamline, expand, or 

repeal [such rules] in accordance with 

what has been learned.’’ 

Costs of the Proposed Rule 

A detailed discussion of the costs of 

the proposed rule is included in the 

section on Regulatory Procedures, infra. 

In sum, the proposed rule should create 

relatively minimal administrative and 

other cost burdens for contractors. 

The only new administrative burden 

the proposed rule would create for 

contractors would be the one-time cost 

of regulatory familiarization—the 

estimated time it takes for contractors to 

review and understand the instructions 

for compliance—calculated at just under 

$26 million, or $52 per contractor 

company, the first year. 

The only other new cost burden this 

rule would create for contractors would 

be the cost of pregnancy 

accommodations, which OFCCP 

calculates to be under $10 million 

annually, or $19 per contractor 

company, per year.14


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estimates that the cost would be $9,671,000 

(2,046,850 × 21% × 50% × 9% × $500). 

15U.S. Census Bureau, Civilian Population— 

Employment Status by Sex, Race, and Ethnicity: 

1970–2009, The 2012 Statistical Abstract, available 

at http://www.census.gov/compendia/statab/2012/

tables/12s0588.pdf (last accessed Oct. 31, 2014); 

Bureau of Labor Statistics, U.S. Department of Labor 

Statistics, Data Retrieval: Labor Force Statistics 

(Current Population Survey, Household Data, Table 

A–1, Employment status of the civilian population 

by sex and age, available at http://www.bls.gov/

webapps/legacy/cpsatab1.htm (last accessed Oct. 3, 

2014). 

16Bureau of Labor Statistics, U.S. Department of 

Labor, TED: The Economics Daily, Labor force 

participation rates among mothers,, available at 

http://www.bls.gov/opub/ted/2010/ted_20100507_

data.htm (last accessed Oct. 3, 2014) [hereinafter 

Labor Force Participation: Mothers—2010]; Press 

Release, Bureau of Labor Statistics, U.S. Department 

of Labor, Employment Characteristics of Families— 

2013 (April 25, 2014), available at http://

www.bls.gov/news.release/famee.nr0.htm (last 

accessed Nov. 5, 2014) [hereinafter Employment 

Characteristics of Families—2013]. 

17Employment Characteristics of Families—2013, 

supra note 16. 

18Equal Employment Opportunity Act of 1972, 

Public Law 92–261, 86 Stat. 103 (1972). 

19Amendment to Title VII of the Civil Rights Act 

of 1964 to Prohibit Sex Discrimination on the Basis 

of Pregnancy, Public Law 95–555, 995, 92 Stat. 2076 

(1978). 

20Civil Rights Act of 1991, Public Law 102–166, 

1745, 105 Stat. 1071 (1991). 

21Lilly Ledbetter Fair Pay Act of 2009, Public 

Law 111–2, 123 Stat. 5 (2009). 

22See, e.g., Conn. Gen. Stat. § 31–18 (repealed 

1973) (prohibition of employment of women for 

more than nine hours a day in specified 

establishments); Mass. Gen. Laws ch. 345 (1911) 

(repealed 1974) (outright prohibition of 

employment of women before and after childbirth); 

Ohio Rev. Code Ann. § 4107.43 (repealed 1982) 

(prohibition of employment of women in specific 

occupations that require the routine lifting of more 

than 25 pounds); see also Nashville Gas Co. v. Satty, 

434 U.S. 136, 142 (1977) (invalidating public 

employer requirement that pregnant employees take 

a leave of absence during which they did not 

receive sick pay and lost job seniority); Cleveland 

Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) 

(striking rules requiring leave from after the fifth 

month of pregnancy until three months after birth); 

Somers v. Aldine Indep. Sch. Dist., 464 F. Supp. 

900 (S.D. Tex. 1979) (finding sex discrimination 

where school district terminated teacher for not 

complying with requirement that pregnant women 

take an unpaid leave of absence in their third 

month or be terminated). 

23 29 U.S.C. 2601 et seq. 24 29 U.S.C. 621–634. 

Together, these costs amount to under 

$36 million, or $71 per contractor 

company, the first year; and under $10 

million, or $19 per contractor company, 

each subsequent year. 

Reasons for Amending the Current Sex 

Discrimination Guidelines, 41 CFR 60– 

20 

The existing statement of the purpose 

of the current Guidelines demonstrates 

their outdated nature. As the ‘‘title and 

purpose’’ section of current part 60–20 

states, the Guidelines were first adopted 

because sex discrimination was 

perceived as presenting ‘‘special 

problems [of] implementation’’ that 

required ‘‘a definitive treatment beyond 

the terms of the [executive] order itself.’’ 

41 CFR 60–20.1. Five sections, covering 

‘‘recruitment and advertisement,’’ ‘‘job 

policies and practices,’’ ‘‘seniority 

system,’’ ‘‘discriminatory wages,’’ and 

‘‘affirmative actions,’’ currently follow 

§ 60–20.1. 

Since the Guidelines were 

promulgated in 1970, there have been 

dramatic changes in women’s 

participation in the workforce. Between 

1970 and December 2013, women’s 

participation in the labor force grew 

from 43 percent to 57 percent.15 This 

included a marked increase in 

employment of mothers: The labor force 

participation of women with children 

under the age of 18 increased from 47 

percent in 1975 to 70 percent in 2013.16

In 2013, both adults worked at least part 

time in 59 percent of married-couple 

families with children under 18, and 73 

percent of mothers heading singleparent families with children under 18 

worked at least part time.17

Since 1970, there have also been 

extensive changes in the law regarding 

sex-based employment discrimination 

and in contractors’ policies and 

practices governing workers. For 

example: 

• Title VII, which generally governs 

the law of sex-based employment 

discrimination, has been significantly 

amended four times: Once in 1972, by 

the Equal Employment Opportunity 

Act; 18 once in 1978, by the Pregnancy 

Discrimination Act (‘‘PDA’’); 19 once in 

1991, by the Civil Rights Act; 20 and 

finally in 2009, by the Lilly Ledbetter 

Act.21

• State ‘‘protective laws’’ that had 

explicitly barred women from certain 

occupations or otherwise restricted their 

employment conditions on the basis of 

sex have been repealed or are 

unenforceable.22

• In 1993, the Family and Medical 

Leave Act (‘‘FMLA’’) 23 was enacted, 

requiring employers of 50 or more 

employees to provide a minimum of 12 

weeks of annual, unpaid, job-guaranteed 

leave to both male and female 

employees to recover from their own 

serious health conditions (including 

pregnancy, childbirth, or related 

medical conditions), to care for a 

newborn or newly adopted or foster 

child, or to care for a child, spouse, or 

parent with a serious health condition. 

• In 1970 it was not uncommon for 

employers to require female employees 

to retire at earlier ages than their male 

counterparts. However, the Age 

Discrimination in Employment Act was 

amended in 1986 to abolish mandatory 

retirement for all employees with a few 

exceptions.24

Moreover, since 1970 the Supreme 

Court has determined that numerous 

practices which were not then widely 

recognized as discriminatory constitute 

unlawful sex discrimination under title 

VII. See e.g., City of Los Angeles v. 

Manhart, 435 U.S. 702 (1978) (requiring 

equal retirement benefits for women and 

men, despite statistical differences in 

longevity); County of Washington v. 

Gunther, 452 U.S. 161 (1981) (holding 

that compensation discrimination is not 

limited to unequal pay for equal work 

within the meaning of the Equal Pay 

Act); Newport News Shipping & Dry 

Dock Co. v. EEOC, 462 U.S. 669 (1983) 

(holding that employer discriminated on 

the basis of sex by excluding pregnancyrelated hospitalization coverage for the 

spouses of male employees while 

providing complete hospitalization 

coverage for the spouses of female 

employees); Meritor Savings Bank v. 

Vinson, 477 U.S. 57 (1986) (recognizing 

cause of action for sexually hostile work 

environment); California Federal S. & L. 

Assn. v. Guerra, 479 U.S. 272 (1987) 

(upholding California law requiring up 

to four months leave and reinstatement 

to pregnant employees and finding law 

not inconsistent with title VII); Price 

Waterhouse v. Hopkins, 490 U.S. 228, 

250 (1989) (finding sex discrimination 

on basis of sex stereotyping); Oncale v. 

Sundowner Offshore Servs., 523 U.S. 75, 

78 (1998) (recognizing cause of action 

for ‘‘same sex’’ harassment); Int’l Union, 

United Auto., Aerospace and Agr. 

Implement. Workers of Am. v. Johnson 

Controls, Inc., 499 U.S. 187 (1991) 

(holding that possible reproductive 

health hazards to women of 

childbearing age did not justify sexbased exclusions from certain jobs); 

Burlington Industries, Inc. v. Ellerth, 

524 U.S. 742 (1998), and Faragher v. 

City of Boca Raton, 524 U.S. 775 (1998) 

(holding employers vicariously liable 

under title VII for the harassing activity 

of supervisors who create hostile 

working conditions for those over whom 

they have authority); and Burlington N. 

& Santa Fe Railway Co. v. White, 548 

U.S. 53 (2006) (clarifying broad scope of 

prohibition of retaliation for filing of 

charge of sex discrimination). 

In response to these legal and 

economic changes, employment policies 

and practices have also changed. 

Contractors rarely adopt or implement 

explicit rules that prohibit hiring of 

women for certain jobs; and jobs are no 

longer advertised in sex-segregated 

newspaper columns. Women have made 

major inroads into professions and 


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25American Medical Association, Women in 

Medicine: An AMA Timeline 4, available at 

https://download.ama-assn.org/resources/doc/wps/

x-pub/wimtimeline.pdf (last accessed May 13, 

2014). 

26Bureau of Labor Statistics, U.S. Department of 

Labor, Labor Force Statistics from the Current 

Population Survey, Table 11, Employed persons by 

detailed occupation, sex, race, and Hispanic or 

Latino ethnicity, Household Data Annual Averages, 

available at http://www.bls.gov/cps/cpsaat11.htm 

(last accessed June 5, 2014) [hereinafter BLS Labor 

Force Statistics 2013]. 

27U.S. Census Bureau, Income and Poverty in the 

United States: 2013, Current Population Reports 10 

(2014), Table A–4, Number and real median 

earnings of total workers and full-time, year-round 

workers by sex and female-to-male earnings ratio: 

1960–2013, available at http://www.census.gov/

content/dam/Census/library/publications/2014/

demo/p60-249.pdf (last accessed Nov. 2, 2014). 

28These practices, common before the PDA, were 

prohibited when that law became effective as to 

fringe benefits in 1979. As the EEOC explained in 

guidance on the PDA issued in 1979— 

A woman unable to work for pregnancy-related 

reasons is entitled to disability benefits or sick leave 

on the same basis as employees unable to work for 

other medical reasons. Also, any health insurance 

provided must cover expenses for pregnancyrelated conditions on the same basis as expenses for 

other medical conditions. 

Appendix to Part 1604—Questions and Answers 

on the Pregnancy Discrimination Act, 44 FR 23805 

(Apr. 20, 1979), 29 CFR part 1604. EEOC’s recently 

issued guidance echoes this earlier interpretation 

and discusses recent developments on benefits 

issues affecting PDA compliance. U.S. Equal 

Opportunity Commission, Enforcement Guidance: 

Pregnancy Discrimination and Related Issues I.C.2– 

4 (July 14, 2014), available at http://www.eeoc.gov/ 

laws/guidance/pregnancy_guidance.cfm (last 

accessed Oct. 3, 2014). OFCCP welcomes comments 

on the extent to which contractor-provided health 

insurance plans comply with the PDA. 

29U.S. Department of Labor, Wage and Hour 

Division, The 2000 Survey Report ch. 5, Table 5– 

1. Family and Medical Leave Policies by FMLA 

Coverage Status, 2000 Survey Report available at 

http://www.dol.gov/whd/fmla/chapter5.htm#5.1.1 

(last accessed May 13, 2014). 

30Robert Van Giezen, Paid Leave in Private 

Industry over the Past 20 Years, Bureau of Labor 

Statistics, U.S. Department of Labor, Beyond the 

Numbers: Pay & Benefits Aug. 2013, available at 

http://www.bls.gov/opub/btn/volume-2/paid-leavein-private-industry-over-the-past-20-years.htm (last 

accessed Oct. 3, 2014). In addition, most employees 

taking family or medical leave had some access to 

paid leave: ‘‘48% report[ed] receiving full pay and 

another 17% receive[d] partial pay, usually but not 

exclusively through regular paid vacation leave, 

sick leave, or other ‘paid time off’ hours.’’ Jacob 

Klerman, Kelly Daley, & Alyssa Pozniak, Family 

and Medical Leave in 2012: Executive Summary ii, 

http://www.dol.gov/asp/evaluation/fmla/FMLA2012-Executive-Summary.pdf (last accessed Oct. 3, 

2014). 

31This rate has varied from a low of 28.5 percent 

in FY 2011 to a high of 31.5 percent in FY 2000. 

U.S. Equal Employment Opportunity Commission, 

Enforcement and Litigation Statistics, Charge 

Statistics: FY 1997 Through FY 2013, available at 

http://eeoc.gov/eeoc/statistics/enforcement/

charges.cfm (last accessed Nov. 2, 2014). In FY 

2013, the EEOC received 27,687 charges alleging 

sex discrimination. 

32Ariane Hegewisch & Heidi Hartmann, Institute 

for Women’s Policy Research, Occupational 

Segregation and the Gender Wage Gap: A Job Half 

Done (2014), available at http://www.iwpr.org/

publications/pubs/occupational-segregation-andthe-gender-wage-gap-a-job-half-done (last accessed 

Oct. 3, 2014) (citations omitted); see also Ariane 

Hegewisch et al., The Gender Wage Gap by 

Occupation, Fact Sheet #C350a, The Institute for 

Women’s Policy Research, available at http://

www.iwpr.org/publications/pubs/the-gender-wagegap-by-occupation-2/at_download/file/ (last 

accessed Oct. 3, 2014) [hereinafter IWPR Wage Gap 

By Occupation]. 

33BLS Labor Force Statistics 2013, supra note 26. 

34 Id. 

35U.S. Census Bureau, Income and Poverty in the 

United States: 2013, Current Population Reports 10 

(2014), available at http://www.census.gov/content/ 

dam/Census/library/publications/2014/demo/p60- 

249.pdf (last accessed Nov. 2, 2014). 

36 Institute for Women’s Policy Research, At 

Current Pace of Progress, Wage Gap for Women 

Expected to Close in 2057 (April 2013), available at 

http://www.iwpr.org/publications/pubs/atcurrentpace-of-progress-wage-gap-for-womenexpected-toclose-in-2057. 

37Bureau of Labor Statistics, U.S. Department of 

Labor, Household Data, Annual Averages, Table 37. 

‘‘Median Weekly Earnings of Full-Time Wage and 

Salary Workers By Selected Characteristics’’ 

available at http://www.bls.gov/cps/cpsaat37.pdf 

(last accessed Oct. 6, 2014). 

38Calculation from U.S. Census Bureau, 

American Fact Finder, ‘‘Median earnings in the past 

12 months (in 2013 inflation-adjusted dollars) by 

disability status by sex for the civilian 

noninstitutionalized population 16 years and over 

with earnings,’’ available at http://factfinder2.

census.gov/faces/tableservices/jsf/pages/product

view.xhtml?pid=ACS_13_1YR_B18140&prod

Type=table (last accessed Nov. 6, 2014). 

39From 1980 to 1989, the percentage of women’s 

earnings relative to men’s increased from 60.2% to 

66.0%; from 1990 to 1999, the percentage increased 

from 71.6% to just 72.2%. U.S. Census Bureau, 

Historical Income Tables: People, Table P–40: 

Women’s Earnings as a Percentage of Men’s 

Earnings by Race and Hispanic Origin, available at 

https://www.census.gov/hhes/www/income/data/

historical/people/ (last accessed Nov. 2, 2014). See 

occupations traditionally dominated by 

men. For example, women’s 

representation among doctors tripled, 

from nearly 12 percent in 1980 25 to 36 

percent in 2013.26 Executive suites are 

no longer predominantly segregated by 

sex, with the executive positions all 

being occupied by men and women 

functioning as secretaries. Indeed, in 

many companies, it is hardly surprising 

for women to be in positions of 

considerable power and status. 

Moreover, the female-to-male earnings 

ratio for women and men working fulltime, year-round in all occupations 

increased from 59 percent in 1970 to 78 

percent in 2013.27

In addition, employer-provided 

insurance policies that explicitly 

provide lower-value or otherwise less 

comprehensive hospitalization or 

disability benefits for childbirth than for 

other medical conditions are unlawful 

for employers of 15 or more 

employees.28 Generous leave and other 

family-friendly policies are increasingly 

common. As early as 2000, even 

employers that were not covered by the 

FMLA routinely extended leave to their 

employees for FMLA-covered reasons: 

Two-thirds of such employers provided 

leave for an employee’s own serious 

health condition and for pregnancyrelated disabilities, and half extended 

leave to care for a newborn child.29

Eleven percent of employees have 

access to paid family leave, and most 

employees receive some pay during 

family and medical leave due to paid 

vacation, sick, or personal leave or 

temporary disability insurance.30

While these changes in policies and 

practices show a measure of progress, 

there is no doubt that sex discrimination 

remains a significant and pervasive 

problem. Indeed, the percentage of total 

annual EEOC charges that allege sex 

discrimination has remained nearly 

constant at around 30 percent since at 

least 1997.31

Additionally, occupational sex 

segregation remains widespread: 

In 2012, nontraditional occupations for 

women employed only six percent of all 

women, but 44 percent of all men. The same 

imbalance holds for occupations that are 

nontraditional for men; these employ only 5 

percent of men, but 40 percent of women. 

Gender segregation is also substantial in 

terms of the broad sectors where men and 

women work: Three in four workers in 

education and health services are women, 

nine in ten workers in the construction 

industry and seven in ten workers in 

manufacturing are men.32

Likewise, women continue to be 

underrepresented in higher level or 

more senior jobs within occupations. 

For example, in 2013, women were 

represented in only 38 percent of all 

manager positions.33 Women also 

accounted for only 27 percent of chief 

executive officer positions.34

As mentioned above, in 2013, women 

working full time earned 78 cents on the 

dollar compared with men, measured on 

the basis of median annual earnings.35

While this represents real progress, and 

discrimination may not be the cause of 

the entire gap, more than fifty years after 

passage of the Equal Pay Act, the size of 

the gap is still unacceptable. At the 

current rate of progress, researchers 

estimate it will take until 2057 to close 

the gender pay gap.36

The wage gap is also greater for 

women of color and women with 

disabilities. When measured by median 

full-time weekly earnings, in 2013 

African-American women made 

approximately 69 cents and Latinas 

made approximately 61 cents for every 

dollar earned by a non-Hispanic, white 

man.37 In 2013, median annual earnings 

for women with disabilities were only 

47 percent of median annual earnings 

for men without disabilities.38

Moreover, it appears that the narrowing 

of the pay gap has slowed since the 

1990’s.39


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5251 

also Youngjoo Cha & Kim A Weeden, Overwork and 

the Slow Convergence in the Gender Gap in Wages, 

Am. Soc. Rev. 1–28 (2014), available at http://

www.asanet.org/journals/ASR/ChaWeeden

June14ASR.pdf (last accessed Nov. 2, 2014); 

Francine D. Blau & Lawrence M. Kahn, The U.S. 

Gender Pay Gap in the 1990s: Slowing Convergence, 

60 Indus. & Lab. Rel. Rev. 45 (2006) [hereinafter 

Slowing Convergence]. 

40Equal Pay for Equal Work? New Evidence on 

the Persistence of the Gender Pay Gap: Hearing 

Before United States Joint Economic Comm., 

Majority Staff of the Joint Econ. Comm., 111th 

Cong., Invest in Women, Invest in America: A 

Comprehensive Review of Women in the U.S. 

Economy 80 (Comm. Print 2010), 80, available at 

http://jec.senate.gov/public/?a=Files.Serve&File_

id=9118a9ef-0771-4777-9c1f-8232fe70a45c (last 

accessed Oct. 3, 2014) (statement of Randy Albelda, 

Professor of Economics and Senior Research 

Associate, University of Massachusetts-Boston 

Center for Social Policy). 

41A March 2011 White House report entitled 

Women in America: Indicators of Social and 

Economic Well-Being, found that while earnings for 

women and men typically increase with higher 

levels of education, male-female pay gap persists at 

all levels of education for full-time workers (35 or 

more hours per week), according to 2009 BLS wage 

data. Potentially nondiscriminatory factors can 

explain some of the gender wage differences. See, 

e.g., June Elliot O’Neill, The Gender Gap in Wages, 

Circa 2000, Am. Econ. Rev. (May 2003). Even so, 

after controlling for differences in skills and job 

characteristics, women still earn less than men. 

Explaining Trends in the Gender Wage Gap, A 

Report by the Council of Economic Advisers (June 

1998). Ultimately, the research literature still finds 

an unexplained gap exists even after accounting for 

potential explanations, and finds that the narrowing 

of the pay gap for women has slowed since the 

1980s. Joyce P. Jacobsen, The Economics of Gender 

44 (2007); Slowing Convergence, supra note 39. 

42Shelley J. Correll, Stephen Benard, & In Paik, 

‘‘Getting a Job: Is There a Motherhood Penalty?’’ 

112 American Journal of Sociology 1297 (2007). 

43Strengthening the Middle Class: Ensuring Equal 

Pay for Women: Hearing Before H. Comm. on Educ. 

and Labor, 110th Cong. (2007), available at http:// 

www.cepr.net/index.php/strengthening-the-middleclass-ensuring-equal-pay-for-women-testimony/ 

(last accessed Oct. 3, 2014) (statement of Heather 

Boushey, Senior Economist, Center for Economic 

and Policy Research). 

44 IWPR Wage Gap by Occupation, supra note 32. 

45 Id. 

46Constanca Esteves-Sorenson & Jason Snyder, 

The Gender Earnings Gap for Physicians and its 

Increase Over Time 1 (2011), available at http://

faculty.som.yale.edu/ConstancaEstevesSorenson/

documents/Physician_000.pdf (last accessed 

October 3, 2014). 

47 Id. A 2008 study on physicians leaving 

residency programs in New York State also found 

a $16,819 pay gap between male and female 

physicians. Anthony T. LoSasso, Michael R. 

Richards, Chiu-Fang Chou & Susan E. Gerber, The 

$16,819 Pay Gap For Newly Trained Physicians: 

The Unexplained Trend Of Men Earning More Than 

Women, 30 Health Affairs 193 (2011), available at 

http://content.healthaffairs.org/content/30/2/

193.full.pdf+html (last accessed May 13, 2014). 

48U.S. Equal Employment Opportunity 

Commission, Pregnancy Discrimination Charges, 

EEOC & FEPAs Combined: FY 1997–FY 2011, 

available at http://www.eeoc.gov/eeoc/statistics/

enforcement/pregnancy.cfm (last accessed Nov. 2, 

2014); U.S Equal Employment Opportunity 

Commission, Charge Statistics: FY 1997 Through 

FY 2013, available at http://www.eeoc.gov/eeoc/

statistics/enforcement/charges.cfm (last accessed 

Nov. 2, 2014) (hereinafter ‘‘EEOC Charge Statistics: 

FY 1997–2013’’). FY 2011 is the last year for which 

comparable data are available. For FY 2012 and FY 

2013, four percent of the charges filed with the 

EEOC alleged pregnancy discrimination. OFCCP 

calculations made from data from U.S Equal 

Employment Opportunity Commission, Pregnancy 

Discrimination Charges, FY 2010–FY 2013, 

available at http://www.eeoc.gov/eeoc/statistics/

enforcement/pregnancy_new.cfm (last accessed 

Nov. 2, 2014) and EEOC Charge Statistics: FY 1997– 

2013. 

49Stephanie Bornstein, Center for WorkLife Law, 

UC Hastings College of the Law, Poor, Pregnant and 

Fired: Caregiver Discrimination Against Low-Wage 

Workers 2 (2011), available at http://

worklifelaw.org/pubs/PoorPregnantAndFired.pdf 

(last accessed Oct. 3, 2014). 

50Brief of Health Care Providers, the National 

Partnership for Women & Families, and Other 

Organizations Concerned with Maternal and Infant 

Health as Amici Curiae in Support of Petitioner in 

Young v. United Parcel Service, supra, available at 

http://www.americanbar.org/content/dam/aba/

publications/supreme_court_preview/BriefsV4/12- 

1226_pet_amcu_hcp-etal.authcheckdam.pdf, at 9– 

10, 11 [citations omitted]. See also Wiseman v. WalMart Stores, Inc., No. 08–1244–EFM, 2009 WL 

1617669 (D. Kan. June 9, 2009) (pregnant retail 

employee with recurring urinary and bladder 

infections caused by dehydration alleged she was 

denied permission to carry a water bottle despite 

doctor’s note), available at http://www.gpo.gov/

fdsys/pkg/USCOURTS-ksd-6_08-cv-01244/pdf/

USCOURTS-ksd-6_08-cv-01244-0.pdf. 

51National Women’s Law Center & A Better 

Balance, It Shouldn’t Be a Heavy Lift: Fair 

Treatment for Pregnant Workers 5 (2013), available 

at http://www.nwlc.org/sites/default/files/pdfs/

pregnant_workers.pdf (last accessed Dec. 30, 2014) 

[hereinafter Heavy Lift]. 

These disparities can be explained to 

some extent by differences in 

experience, occupation, and industry.40

However, decades of research show 

these wage gaps remain even after 

accounting for factors like the type of 

work people do and qualifications such 

as education and experience.41

Moreover, while some women may 

work fewer hours or take time out of the 

workforce because of family 

responsibilities, there is research 

suggesting that discrimination and not 

just choices can lead to women with 

children earning less; 42 to the extent 

that the potential explanations such as 

type of job or amount of continuous 

labor market experience are also 

influenced by discrimination, the 

‘‘unexplained’’ difference may 

understate the true effect of sex 

discrimination.43

Male-dominated occupations 

generally pay more than femaledominated occupations at similar skill 

levels. But even within the same 

occupation, women earn less than men 

on average. For example, in 2012, fulltime women auditors’ and accountants’ 

earnings were less than 74 percent of 

the earnings of their male 

counterparts.44 Retail salespersons faced 

the largest wage gap, among whom 

women made only 64 percent of what 

men made.45 Likewise, in the medical 

profession, women earn less than their 

male counterparts. On average, male 

physicians earn 13 percent more than 

female physicians at the outset of their 

careers and as much as 28 percent more 

eight years later.46 This gap could not be 

explained by practice type, work hours, 

or other characteristics of employees’ 

work situations.47

Despite enactment of the PDA, 

women continue to report that they 

have experienced discrimination on 

account of pregnancy. Between FY 1997 

and FY 2011, the number of charges of 

pregnancy discrimination filed with the 

EEOC and state and local agencies was 

significant, ranging from a low of 3,977 

in 1997 to a high of 6,285 in 2008.48 A 

2011 review of reported ‘‘family 

responsibility discrimination’’ cases 

(brought by men as well as women) 

found that low-income workers face 

‘‘extreme hostility to pregnancy.’’ 49

In addition, some pregnant workers 

face a serious and unmet need for 

workplace accommodations, which are 

vital to their uninterrupted, seamless, 

and continued employment and, 

ultimately, to their health and that of 

their children. OFCCP is aware of a 

number of situations in which women 

have been denied accommodations with 

deleterious health consequences. For 

example: 

In one instance, a pregnant cashier in New 

York who was not allowed to drink water 

during her shift, in contravention of her 

doctor’s recommendation to stay wellhydrated, was rushed to the emergency room 

after collapsing at work. As the emergency 

room doctor who treated her explained, 

because ‘‘pregnant women are already at 

increased risk of fainting (due to high 

progesterone levels causing blood vessel 

dilation), dehydration puts them at even 

further risk of collapse and injury from 

falling.’’ Another pregnant worker was 

prohibited from carrying a water bottle while 

stocking grocery shelves despite her doctor’s 

instructions that she drink water throughout 

the day to prevent dehydration. She 

experienced preterm contractions, requiring 

multiple hospital visits and hydration with 

IV fluids. . . . [Another] woman, a pregnant 

retail worker in the Midwest who had 

developed a painful urinary tract infection, 

supplied a letter from her doctor to her 

employer explaining that she needed a short 

bathroom break more frequently than the 

store’s standard policy. The store refused. 

She later suffered another urinary tract 

infection that required her to miss multiple 

days of work and receive medical 

treatment.50

‘‘Pregnant workers in physically 

demanding, inflexible, or hazardous 

jobs are particularly likely to need 

accommodations at some point during 

their pregnancies to continue working 

safely.’’ 51 Meanwhile, more women 


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52U.S. Census Bureau, Maternity Leave and 

Employment Patterns of First-Time Mothers: 1961– 

2008 4, 7 (2011), available at http://

www.census.gov/prod/2011pubs/p70-128.pdf (last 

accessed Nov. 2, 2014) (tables 1 and 3). 

53See, e.g., Susan Fiske et al., Controlling Other 

People: The Impact of Power on Stereotyping, 48 

a.m. Psychol. 621 (1993); Marzarin Banaji, Implicit 

Social Cognition: Attitudes, Self-Esteem and 

Stereotypes, 102 Psychol. Rev. 4 (1995); Brian Welle 

& Madeline Heilman, Formal and Informal 

Discrimination Against Women at Work in 

Managing Social and Ethical Issues in 

Organizations 23 (Stephen Gilliland, Dirk Douglas 

Steiner & Daniel Skarlicki eds., 2007); Susan 

Bruckmu ̈ller et al., Beyond the Glass Ceiling: The 

Glass Cliff and Its Lessons for Organizational 

Policy, 8 Soc. Issues & Pol. Rev. 202 (2014) 

(describing the role of sex-based stereotypes in the 

workplace). 

54Price Waterhouse v. Hopkins, 490 U.S. 228 

(1989). Men, too, can experience adverse effects 

from sex-based stereotyping. 

55See, e.g., Kevin Lang & Jee-Yeon K. Lehmann, 

Racial Discrimination in the Labor Market: Theory 

and Empirics (NBER Working Paper No. 17450, 

2010), available at http://128.197.153.21/jee/Lang_

Lehmann_jel_disc.pdf (last accessed Oct. 3, 2014); 

Marianne Bertrand & Sendhil Mullainathan, Are 

Emily and Brendan More Employable Than Lakisha 

and Jamal? A Field Experiment on Labor Market 

Discrimination, 94(4) American Econ. Rev. (2004); 

Ian Ayres & Peter Siegelman, Race and Gender 

Discrimination in Bargaining for a New Car, 85(3) 

Am. Econ. Rev. (1995); Marc Bendick, Charles 

Jackson & Victor Reinoso, Measuring Employment 

Discrimination Through Controlled Experiments, 23 

Rev. of Black Pol. Econ. 25 (1994). 

56 Injustice at Every Turn, supra note 13; Brad 

Sears & Christy Mallory, The Williams Institute, 

Documented Evidence of Employment 

Discrimination & Its Effects on LGBT People (2011), 

available at http://williamsinstitute.law.ucla.edu/

wp-content/uploads/Sears-Mallory-DiscriminationJuly-20111.pdf (last accessed Nov. 5, 2014). Further 

discussion of discrimination on the basis of sexual 

orientation and gender identity can be found infra 

in the passages on § 60–20.2(a) and § 60–20.7. 

today continue to work throughout their 

pregnancies and therefore are more 

likely to need accommodations of some 

sort. Of women who had their first child 

between 1966 and 1970, 49 percent 

worked during pregnancy; of those, 39 

percent worked into their last month. 

For the period from 2006 to 2008, the 

proportion working increased to 66 

percent, and the proportion of those 

working into the last month increased to 

82 percent.52

In some ways, the nature of sex 

discrimination has also changed since 

OFCCP promulgated the Sex 

Discrimination Guidelines. Explicit sex 

segregation, such as the facial ‘‘male 

only’’ hiring policies that part 60–20 

specifically addresses, has been 

replaced in many workforces by less 

overt mechanisms that nevertheless 

present real equal opportunity barriers. 

One of the most significant barriers is 

the role of sex-based stereotyping. 

Decades of social science research have 

documented the extent to which sexbased stereotypes about the roles of 

women and men and their respective 

capabilities in the workplace can 

influence decisions about hiring, 

training, promotions, pay raises, and 

other conditions of employment.53 As 

the Supreme Court recognized in 1989, 

an employer engages in sex 

discrimination if its female employees’ 

chances of promotion depend on 

whether they fit their managers’ 

preconceived notions of how women 

should dress and act.54 Research clearly 

demonstrates that widely held social 

attitudes and biases can lead to 

discriminatory decisions, even where 

there is no formal sex-based (or racebased) policy or practice in place.55 Sexbased stereotyping may have even more 

severe consequences for transgender, 

lesbian, gay, and bisexual applicants 

and employees, many of whom report 

that they have experienced 

discrimination in the workplace.56

With the marked increase of women 

in the labor force, the changes in 

employment practices, and numerous 

key legal developments since 1970, the 

‘‘special problems . . . [of] 

implementation’’ of the Executive 

Order’s prohibition of sex 

discrimination referred to in current 

§ 60–20.1 have changed significantly as 

well. As a result, many of the provisions 

in the Guidelines are outdated, 

inaccurate, or both. At the same time, 

there are important and current areas of 

law that the Guidelines fail to address 

at all. For example, while the existing 

regulations touch upon leave for 

childbearing, they are completely silent 

about refusals to hire pregnant women 

or women of childbearing age, restricted 

duty during pregnancy, health 

insurance or other benefits, and other 

applications of the law prohibiting 

pregnancy discrimination. 

Section-by-Section Analysis 

The NPRM recommends a quite 

different organization of the topics 

covered in current part 60–20. For 

example, discussion of the BFOQ 

defense is repeated in several different 

sections of the current guidelines; the 

proposal consolidates this discussion 

into one section covering BFOQs. In 

addition, the proposal does not address 

some topics that are addressed in 

current part 60–20 but are outdated; 

includes some topics that are covered by 

the current guidelines but in revised 

form to align them with current law; 

and adds some provisions not contained 

in the current guidelines to address 

contemporary problems with 

implementation. 

This Section-by-Section Analysis 

identifies and discusses all proposed 

changes in each section. OFCCP 

welcomes comments on each of the 

provisions discussed below. 

Title of the Regulations 

The current title of part 60–20 is ‘‘Sex 

Discrimination Guidelines.’’ OFCCP 

proposes to change this title to 

‘‘Discrimination on the Basis of Sex,’’ to 

make clear that the provisions in part 

60–20 are regulations implementing 

Executive Order 11246 with the full 

force and effect of law. 

Section 60–20.1 Purpose 

The NPRM proposes a few minor 

changes to this section. First, it deletes 

the words ‘‘Title and’’ from the heading 

of current § 60–20.1, because the 

proposed section does not set out a title. 

Second, it deletes the second sentence 

of current § 60–20.1, which explains the 

reason that this part was promulgated in 

1970, because the reasons for amending 

this part are contained in the preamble 

of the NPRM. Finally, the proposal 

modifies the last sentence of current 

§ 60–20.1, which notifies the public that 

part 60–20 is ‘‘to be read in connection 

with existing regulations, set forth in 

part 60–1 of this chapter.’’ For 

completeness and to prevent any 

confusion, this change clarifies that 

contractors are subject to all the relevant 

parts related to the implementation of 

Executive Order 11246, by listing them 

specifically. Therefore, the proposed 

rule states that part 60–20 is to be read 

in conjunction with parts 60–1, 60–2, 

60–3, 60–4, and 60–30 of this title. 

Section 60–20.2 General Prohibitions 

OFCCP proposes removing current 

§ 60–20.2 entitled ‘‘Recruitment and 

advertisement,’’ which addresses both 

the nondiscrimination requirements 

related to recruiting and advertising and 

the BFOQ defense. Unlawful practices 

related to recruitment and advertising 

contained in current § 60–20.2 are 

subsumed in a new subparagraph of this 

section. See proposed paragraph 60– 

20.2(b)(7). The BFOQ defense is now 

addressed in proposed § 60–20.3. 

In place of current § 60–20.2, OFCCP 

proposes a new section entitled 

‘‘General prohibitions.’’ Paragraph (a) of 

this new section articulates the general 

prohibition against sex discrimination 

in employment. Paragraph (b) expressly 

prohibits disparate treatment 

discrimination; subparagraphs (b)(1) 

through (b)(10) apply the general 

prohibition of disparate treatment 

discrimination to specific practices. 

Paragraph (c) prohibits discrimination 

under disparate impact analysis. 

The general statement prohibiting sex 

discrimination in paragraph (a) clarifies 

that discrimination based on pregnancy, 


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57 Macy at *7. Macy also held that discrimination 

on the basis of transgender status could be unlawful 

under title VII as sex stereotyping. That form of sex 

stereotyping is separately addressed in proposed 

§ 20.7. 

58Consistent with Macy, this NPRM defines 

discrimination on the basis of gender identity as a 

form of sex discrimination. Gender identity is also 

a stand-alone protected category (along with sexual 

orientation) under Executive Order 13672. 

Executive Order 13672 amends Executive Order 

11246 to add sexual orientation and gender identity 

as protected bases, and applies to contracts entered 

into or modified on or after April 8, 2015, the 

effective date of the implementing regulations 

promulgated thereunder. 

59This provision aligns with an existing 

affirmative action requirement applicable to Federal 

and federally-assisted construction contractors at 41 

CFR 60–4.3(a) 7n (‘‘Ensure that all facilities and 

company activities are nonsegregated except that 

separate or single-user toilet and necessary 

changing facilities shall be provided to assure 

privacy between the sexes.’’). 

60See Int’l Union, United Auto., Aerospace and 

Agric. Implement Workers of Am. v. Johnson 

Controls, Inc., 499 U.S. 187, 210–11 (1991), in 

which the plaintiff challenged defendant’s policy 

prohibiting women of childbearing age from 

working in jobs involving exposure to lead because 

of potential health dangers to fetuses that they may 

be carrying. The Supreme Court held that the cost 

of eliminating the health dangers cannot be a BFOQ 

that justifies the exclusion of women workers. 

61 In addition, OSHA regulations require 

employers to provide employees with toilets, except 

for ‘‘mobile crews, which must have] 

‘‘transportation readily available to nearby toilet 

facilities.’’ 29 CFR 1926.51(c) (OSHA construction 

sanitation standard); OSHA Standard Interpretation 

regarding 29 CFR 1926.51(c) (June 7, 2002), 

https://www.osha.gov/pls/oshaweb/owadisp.show_

document?p_table=INTERPRETATIONS&p_

id=24369 (interpreting the provision pertaining to 

mobile crews as requiring prompt access to toilets 

that are less than 10 minutes away and recognizing 

that women may need bathroom facilities more 

often than men). 

childbirth, or related medical conditions 

is a form of sex discrimination. This 

principle has been the law since 

Congress enacted the Pregnancy 

Discrimination Act amendments to title 

VII in 1978. This form of discrimination 

is also treated separately in proposed 

§ 60–20.5. 

In addition, paragraph (a) clarifies 

that discrimination based on gender 

identity or transgender status is also a 

form of sex discrimination. See OFCCP 

Directive 2014–02, ‘‘Gender Identity and 

Sex Discrimination’’ (August 19, 2014). 

As Directive 2014–02 explains, ‘‘Under 

current Title VII case law principles, 

discrimination based on gender identity 

or transgender status . . . is 

discrimination based on sex.’’ The 

Directive relied on the EEOC’s decision 

in Macy v. Holder, 2012 WL 1435995 

(EEOC April 20, 2012), in which the 

EEOC commissioners unanimously 

concluded that discrimination because a 

person is transgender is sex 

discrimination in violation of title VII, 

by definition, because the 

discriminatory act is ‘‘related to the sex 

of the victim.’’ 57 The EEOC cited both 

the text of title VII and the reasoning in 

Schroer v. Billington, 577 F. Supp. 2d 

293 (D.D.C. 2008), for its conclusion.58

See also Memorandum from Attorney 

General Eric Holder to United States 

Attorneys and Heads of Department 

Components (Dec. 15, 2014) (citing 

EEOC’s decision in Macy v. Holder as 

support for DOJ’s positon that ‘‘[t]he 

most straightforward reading of Title VII 

is that discrimination ‘because of . . . 

sex’ includes discrimination because an 

employee’s gender identification is as a 

member of a particular sex, or because 

the employee is transitioning, or has 

transitioned, to another sex’’). Note that 

discrimination on the basis of gender 

identity or transgender status can arise 

regardless of whether a transgender 

individual has undergone, is 

undergoing, or plans to undergo sexreassignment surgery or other processes 

or procedures designed to facilitate the 

adoption of a sex or gender other than 

the individual’s designated sex at birth. 

Many of the examples included in 

this proposed section are presently 

listed in § 60–20.3, ‘‘Job policies and 

practices,’’ of the current part 60–20. 

For instance, proposed paragraph 60– 

20.2(b)(1) identifies making a 

distinction between married and 

unmarried persons that is not applied 

equally to both sexes as an example of 

a sex-based discriminatory practice, and 

proposed paragraph 60–20.2(b)(2) 

provides that denying women with 

children an employment opportunity 

that is available to men with children is 

an unlawful sex-based discriminatory 

practice. These proposed provisions can 

be found in current paragraph 60– 

20.3(d). 

Other examples of practices listed in 

this proposed rule that, absent a BFOQ, 

would constitute sex-based 

discriminatory treatment include: 

Treating unmarried female parents 

differently than unmarried male parents 

(proposed paragraph 60–20.2(b)(3)); 

imposing differences in retirement age 

or other terms, conditions, or privileges 

of retirement based on sex (proposed 

paragraph 60–20.2(b)(4)); restricting job 

classifications on the basis of sex 

(proposed paragraph 60–20.2(b)(5)); 

maintaining seniority lines and lists 

based on sex (proposed paragraph 60– 

20.2(b)(6)); recruiting or advertising for 

members of one sex for a certain job, 

including through use of gender-specific 

terms for jobs (proposed paragraph 60– 

20.2(b)(7)); and distinguishing on the 

basis of sex in apprenticeship or other 

formal or informal training programs; in 

other opportunities such as networking, 

mentoring, sponsorship, individual 

development plans, rotational 

assignments, and succession planning 

programs; and in performance 

appraisals that may provide the basis of 

subsequent opportunities (proposed 

paragraph 60–20.2(b)(8)). Specific 

enumeration of these types of programs 

ensures that the forms of career 

development and advancement 

opportunities that contractors currently 

use are included. 

Proposed paragraph 60–20.2(b)(9) 

states that making any facilities or 

employment-related activities available 

only to members of one sex is an 

example of an unlawful sex-based 

discriminatory practice, with the 

condition that if a contractor provides 

restrooms or changing facilities, the 

contractor must provide separate or 

single-user restrooms or changing 

facilities to assure privacy between the 

sexes.59

This proposed paragraph replaces 

current § 60–20.3(e), which requires 

contractors to provide ‘‘appropriate 

physical facilities’’ to both men and 

women ‘‘unless the employer is able to 

show that the construction of the 

facilities would be unreasonable for 

such reasons as excessive expense or 

lack of space.’’ Under existing law, 

unreasonable cost is not acceptable as a 

defense to sex discrimination in 

employment.60 Moreover, current § 60– 

20.3(e) is inconsistent with other 

OFCCP regulations, which require 

contractors to provide separate or 

single-user restrooms and changing 

facilities to assure privacy between the 

sexes without exception for cost or lack 

of space. See 41 CFR 60–1.8 (supply and 

service contractors); 41 CFR 60–4.3(a) 

7n (construction contractors).61

Proposed paragraph 60–20.2(b)(10) 

describes another example of sex-based 

discriminatory practices: Denying 

transgender employees access to the 

bathrooms used by the gender with 

which they identify. 

Proposed paragraph 60–20.2(b)(11) 

addresses discrimination against 

transgender individuals who have 

undergone, are undergoing, or plan to 

undergo sex-reassignment surgery or 

other processes or procedures designed 

to facilitate the adoption of a sex or 

gender other than the individual’s 

designated sex at birth. Disparate 

treatment for this reason has been 

classified as both discrimination on the 

basis of sex-based stereotypes and as 

discrimination on the basis of sex. 

Schroer v. Billington, supra, at 304–08 

(D.D.C. 2008) (concluding that an 

employer’s decision to withdraw a job 

offer from a transgender applicant 


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62Of course, discrimination based on other 

reasons that are independently prohibited by law— 

such as race, religion, color, national origin, 

disability, sexual orientation, gender identity, and 

protected veteran status—is prohibited. 

constituted both sex-stereotyping 

discrimination and sex discrimination 

in violation of title VII). The EEOC has 

recognized this principle as well. Macy 

v. Holder, supra. 

Finally, proposed paragraph 60– 

20.2(c) provides that employment 

policies or practices that state a claim of 

disparate impact discrimination violate 

Executive Order 11246 and the 

regulations at 41 CFR part 60–20. 

Proposed paragraph 60–20.2(c) 

identifies several examples of 

employment practices that may have an 

adverse impact on women. 

Traditionally, disparate impact claims 

have involved selection criteria that are 

not necessary to the performance of the 

job, but which instead reflect 

stereotypical notions about the skills 

required for the position in question. 

See, e.g., Blake v. City of Los Angeles, 

595 F.2d 1367 (9th Cir. 1979) (striking 

down height requirements by the Los 

Angeles police department because they 

were not job related and had a disparate 

impact on women, who in general are 

shorter than men); EEOC v. Dial Corp., 

469 F.3d 735 (8th Cir. 2006) (striking 

down a strength test used in a sausage 

factory because the test was more 

physically demanding than the job in 

question and had a significant disparate 

impact on women). This sex 

discrimination analysis may also apply 

to policies or practices that are 

unrelated to selection procedures. For 

instance, an employer policy requiring 

crane operators to urinate off the back 

of the crane instead of using a restroom 

was held to be a neutral employment 

policy that was not justified by business 

necessity and that produced an adverse 

effect on women, who, the court found, 

have ‘‘obvious anatomical and 

biological differences’’ that require the 

use of bathrooms. Johnson v. AK Steel 

Corp., 2008 WL 2184230, *8 (S.D. Oh. 

May 23, 2008). 

Section 60–20.3 Sex as a Bona Fide 

Occupational Qualification 

OFCCP proposes removing current 

§ 60–20.3 entitled ‘‘Job policies and 

practices,’’ which addresses a variety of 

topics, including a contractor’s general 

obligations to ensure equal opportunity 

in employment on the basis of sex 

(paragraphs 60–20.3(a), 60–20.3(b), and 

60–20.3(c)); provides examples of 

discriminatory treatment (paragraph 60– 

20.3(d)); and sets forth contractor 

obligations with respect to the provision 

of physical facilities, including 

bathrooms (paragraph 60–20.3(e)), the 

impact of state protective laws 

(paragraph 60–20.3(f)), leave for 

childbearing (paragraph 60–20.3(g)), and 

specification of retirement age 

(paragraph 60–20.3(h)). Current 

paragraph 60–20.3(i) clarifies that 

differences in capabilities for job 

assignments among individuals may be 

recognized by the employer in making 

specific assignments. 

As explained earlier in the preamble, 

OFCCP proposes moving the general 

obligation to ensure equal employment 

opportunity and the examples of 

discriminatory treatment to proposed 

§ 60–20.2. To improve coherence and 

clarity, OFCCP proposes to move (and 

revise in some instances) the remaining 

obligations set forth in paragraphs (e) 

through (i) to their own separate 

sections or to incorporate them as 

illustrations of discriminatory treatment 

in proposed § 60–20.2. 

Specifically, current paragraph 60– 

20.3(e) regarding provision of physical 

facilities is now addressed in proposed 

§ 60–20.2. See the discussion earlier in 

this preamble for information regarding 

this proposed provision. 

Current paragraph 60–20.3(f), which 

addressed state protective laws, has 

been removed entirely because it is 

unnecessary and anachronistic. While 

in 1970 there may have been some legal 

question whether state protective laws 

provided a defense to discriminatory 

employment policies, in 2014 it is 

beyond dispute that they do not. See 

Int’l Union, United Auto., Aerospace 

and Agr. Implement. Workers of Am. v. 

Johnson Controls, Inc., supra (holding 

that possible reproductive health 

hazards to women of childbearing age 

did not justify sex-based exclusions 

from certain jobs). Proposed paragraph 

60–20.2(b)(5), prohibiting sex-based job 

classifications, clearly states the 

underlying principle that no job, absent 

a job-specific BFOQ, is the separate 

domain of any sex. OFCCP invites 

comment from stakeholders as to the 

current scope of state protective laws, 

whether those that exist are enforced, 

and what practical effect, if any, they 

have on contractors. 

Current paragraph 60–20.3(g) 

regarding leave for childbearing is now 

addressed in its own section: 

discrimination on the basis of 

pregnancy, childbirth, or related 

medical conditions. See the discussion 

of proposed § 60–20.5 later in this 

preamble. 

Current paragraph 60–20.3(h) 

prohibits differential treatment between 

men and women with regard to 

retirement age. It is restated and 

broadened, prohibiting the imposition 

not only of sex-based differences in 

retirement age but also in ‘‘other terms, 

conditions, or privileges of retirement,’’ 

in proposed paragraph 60–20.2(b)(4). 

OFCCP invites comments on whether 

such differential treatment continues 

today. 

Current paragraph 60–20.3(i) states, in 

its first sentence, that the Sex 

Discrimination Guidelines allow 

contractors to recognize differences in 

capabilities for job assignments in 

making specific assignments. The 

second sentence reiterates that the 

purpose of the guidelines ‘‘is to insure 

that such distinctions are not based 

upon sex.’’ This paragraph is omitted 

from the proposal because it is 

unnecessary and because its second 

sentence is repetitive of proposed § 60– 

20.1. Implicit in the provisions 

prohibiting discrimination on the basis 

of sex is the principle that distinctions 

for other reasons, such as differences in 

capabilities, are not prohibited.62

Making distinctions among employees 

based on their relevant job skills, for 

example, does not constitute unlawful 

discrimination. 

Proposed § 60–20.3 entitled ‘‘Sex as a 

bona fide occupational qualification’’ is 

new and consolidates in one provision 

the current references to the BFOQ 

defense available to employers in 

paragraphs 60–20.3(b) and 60–20.3(f)(2), 

and adopts the BFOQ language set forth 

in title VII, 42 U.S.C. 2000e–2(e). 

OFCCP expects that this proposed 

reorganization will make the regulations 

more user-friendly and will help 

facilitate a better understanding of the 

Executive Order requirements with 

respect to sex discrimination. 

Section 60–20.4 Discriminatory 

compensation 

Current § 60–20.4 relating to seniority 

systems would be removed because its 

subject matter—the interaction of 

seniority systems and sex 

discrimination—is addressed in 

proposed § 60–20.2 at paragraph (b)(6). 

Proposed § 60–20.4 would replace the 

current requirements related to 

discriminatory wages in current § 60– 

20.5. In general, the existing text focuses 

on particular kinds of jobs and fact 

patterns that may have posed significant 

limitations on equal opportunity in 

compensation at the time the Guidelines 

were adopted. However, the continued 

increase of women into the workforce, 

their robust participation in a wide 

variety of occupations and positions, 

ranging from entry-level to senior 

management, and the significant 

representation of women in both the 

hourly and salaried workforce require a 

more comprehensive statement 


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63Section 202 of Executive Order 11246, as 

amended; 41 CFR 60–1.12; 60–1.4; 60–2.17(b)–(d). 

64OFCCP’s case-by-case investigation procedures 

implement the title VII principles applicable to 

enforcing discrimination in any employment 

practice under Executive Order 11246. The agency 

provides this very general description of its 

approach for purposes of clarification and 

consistency with its other statements of policy in 

this area. 

65 Interpreting Nondiscrimination Requirements 

of Executive Order 11246 with Respect to Systemic 

Compensation Discrimination and Voluntary 

Guidelines for Self-Evaluation of Compensation 

Practices for Compliance with Nondiscrimination 

Requirements of Executive Order 11246 with 

Respect to Systemic Compensation Discrimination: 

Notice of Final Rescission, 78 FR 13508, Feb. 28, 

2013 (hereinafter Notice of Rescission). 

66 Ledbetter v. Goodyear Tire & Rubber Co., 550 

U.S. 618, 645 (2007) (Ginsburg, J., dissenting). 

67On April 8, 2014, President Obama issued 

Executive Order 13655, which provides that a 

Federal contractor may not discharge or otherwise 

discriminate against any employee or applicant 

because such person has inquired about, discussed, 

or disclosed the compensation of the person or 

another employee or applicant. OFCCP published 

an NPRM on Sept. 17, 2014 to implement this 

executive order. 79 FR 55712. The comment period 

closed on Dec. 16, 2014. 

68 In employment discrimination cases, courts 

generally consider whether the workers being 

compared are similar in aspects relevant to the case. 

See, e.g., McGuinness v. Lincoln Hall, 263 F.3d 49, 

53–54 (2d Cir. 2001); Ercegovich v. Goodyear Tire 

and Rubber Co., 154 F.3d 344 (6th Cir. 1998); 

McNabola v. Chicago Transit Authority, 10 F.3d 

501 (7th Cir. 1993). 

addressing sex discrimination in wages 

and other terms of compensation. 

For example, paragraph (a) of current 

§ 60–20.5 provides only a cursory 

description of sex discrimination in 

wages and other forms of compensation 

and fails to give useful guidance to 

contractors in evaluating their 

compensation programs for potential 

sex discrimination. The one clarifying 

example provided in the Note in current 

§ 60–20.5(a) tracks the Equal Pay Act 

rather than title VII. OFCCP enforces the 

Executive Order’s nondiscrimination 

provisions, including the ban on 

compensation discrimination, 

consistent with title VII. Courts have 

concluded that title VII uses a broader 

and more flexible approach to 

comparing jobs and defining similarly 

situated workers than the Equal Pay Act, 

see, e.g., Cnty. of Washington v. 

Gunther, 452 U.S. 161 (1981); Miranda 

v. B & B Cash Grocery, 975 F.2d 1518 

(11th Cir. 1992). For that reason, the 

Note has the potential to create 

unnecessary confusion, and the 

proposed rule omits it entirely. 

Similarly, current paragraph (b) 

appears to contemplate only workplaces 

that are completely or explicitly 

segregated by gender. However, title VII 

also bars other, more subtle forms of 

discriminatory compensation that can 

result from de facto job segregation or 

classification on the basis of sex. For 

example, a retail chain might 

disproportionately steer women into 

lower paying cashier jobs—even though 

the women are qualified and available 

for higher paying positions—based on 

the outdated, stereotypical notion that 

men, and not women, are the primary 

wage earners. These forms of 

discriminatory compensation remain a 

potential concern that should be, and 

are, addressed by the proposed 

regulation. 

Current paragraph (c) has been 

superseded by the transfer of Equal Pay 

Act jurisdiction to the EEOC and is 

therefore removed. 

The proposed new text in § 60–20.4 

provides a clearer general statement of 

the contractor’s obligation to provide 

equal opportunity with respect to wages 

and other forms of compensation. The 

Executive Order and the implementing 

regulations specifically require 

contractors to ensure pay equity. Thus, 

Federal contractors have affirmative 

duties to maintain data, conduct 

internal reviews, and monitor pay 

practices for potential discrimination, as 

well as comply with the Executive 

Order’s ban on discrimination in the 

payment of wages, salaries, and other 

forms of compensation.63 The section 

generally restates the agency’s casespecific approach to evaluating 

contractor pay systems and practices for 

sex discrimination, where the agency 

tailors the investigative and analytic 

methods to the facts of the case.64 This 

may include conducting multiple 

regression analyses and applying other 

formal statistical tests as well as using 

comparative and circumstantial 

evidence. As this approach is grounded 

in well-established principles of title VII 

law,65 it also would apply when 

evaluating contractor pay systems and 

practices for discrimination based on 

other protected categories. 

Furthermore, OFCCP does not require 

anecdotal evidence to support a pay 

violation. Identifying individuals 

harmed by pay discrimination is 

particularly difficult.66 Many workers 

do not know that they are underpaid.67

If OFCCP finds evidence of pay 

discrimination by Federal contractors 

through its review of data, the agency 

should not permit that discrimination to 

continue simply because the contractor 

had successfully hidden it from its 

employees. Federal contractors have 

special obligations to avoid 

discrimination, monitor their pay 

practices and submit to reviews to make 

certain they are in compliance, 

regardless of whether any individual 

applicant or employee actually has 

knowledge of discrimination. 

Section 60–20.4 substitutes the 

general and more modern term 

‘‘compensation’’ for the outdated term 

‘‘wage schedules’’ and clarifies that both 

systemic and individual forms of such 

discrimination are barred by the 

Executive Order. Proposed amendments 

to Section 60–1.3 to implement 

Executive Order 13655 would define 

compensation as follows: 

Compensation means any payments made 

to, or on behalf of, an employee or offered to 

an applicant as remuneration for 

employment, including but not limited to 

salary, wages, overtime pay, shift 

differentials, bonuses, commissions, vacation 

and holiday pay, allowances, insurance and 

other benefits, stock options and awards, 

profit sharing, and contributions to 

retirement. 

That same definition would apply to 

any assessment of compensation 

discrimination under EO 11246, 

including when evaluating sex 

discrimination in compensation under 

this section. 

To provide more guidance to 

contractors about the kinds of practices 

they should review and analyses they 

should undertake to assess their 

compliance, new paragraphs (a), (b), and 

(c) specify a variety of ways pay 

discrimination may occur. For example, 

proposed paragraph (a) states that 

contractors may not pay different 

compensation to similarly situated 

employees on the basis of sex. Proposed 

paragraph (b) prohibits contractors from, 

among other things, granting or denying 

training, work assignments, or other 

opportunities that may lead to 

advancement on the basis of sex, and 

proposed paragraph (c) states that 

contractors may not provide or deny 

earnings opportunities because of sex, 

for example by denying women equal 

opportunity to obtain regular and/or 

overtime hours, commissions, pay 

increases, incentive compensation, or 

any other additions to regular earnings. 

The revised text in proposed 

paragraph (a) also addresses the 

question of determining ‘‘similarly 

situated’’ employees for purposes of 

analyzing compensation differences. 

The determination of similarly situated 

employees is case specific. Relevant 

factors in determining similarity may 

include tasks performed, skills, effort, 

levels of responsibility, working 

conditions, job difficulty, minimum 

qualifications, and other objective 

factors. In some cases, employees are 

similarly situated where they are 

comparable on some of these factors, 

even if they are not similar in other 


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69See, e.g., Beckman v. CBS, 192 FRD. 608 (D. 

Minn. 2000); Stender v. Lucky Stores, 803 F.Supp. 

259 (N.D. Cal. 1992); OFCCP v. St. Regis Corp. 78– 

OFC–1, ALJ’s Recommended Decision (Dep’t. of 

Labor Dec. 28, 1984). 

70Notice of Rescission, supra note 65, 78 FR at 

13511–13513. 

71 Lewis v. City of Chicago, 560 U.S. 205, 212 

(2010) (finding title VII places no limit on the types 

of employment practices that may be challenged 

under disparate impact analysis). 

72This is true even though ‘‘pregnancy itself is 

not an impairment within the meaning of the 

[Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq., as amended], and thus is never on 

its own a disability.’’ EEOC, Enforcement Guidance: 

Pregnancy Discrimination and Related Issues, sec. 

II.A (July 14, 2014) (footnote omitted), available at 

http://www.eeoc.gov/laws/guidance/pregnancy_

guidance.cfm (last accessed December 12, 2014). 

70Notice of Rescission, supra note 65, 78 FR at 

13511–13513. 

72This is true even though ‘‘pregnancy itself is 

not an impairment within the meaning of the 

[Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq., as amended], and thus is never on 

its own a disability.’’ EEOC, Enforcement Guidance: 

Pregnancy Discrimination and Related Issues, sec. 

II.A (July 14, 2014) (footnote omitted), available at 

http://www.eeoc.gov/laws/guidance/pregnancy_

guidance.cfm (last accessed December 12, 2014). 

73Heavy Lift, supra note 51, at 1, 4, 6, 8, 9–10, 

11, 15, 18. 

factors.68 For example, when evaluating 

a job assignment issue, workers are 

similarly situated when their 

qualifications are comparable, but they 

are assigned to jobs at different levels.69

Employees are similarly situated when 

they are comparable on factors relevant 

to the compensation issues presented. 

Identification of similarly situated 

employees for purposes of an individual 

analysis or review of a single specific 

employment decision may be 

determined based on different criteria 

than when conducting a systemic 

discrimination analysis. In analyzing 

compensation, title VII permits 

comparing workers within the same or 

similar jobs or within specific units or 

locations, and also permits 

consideration of pay differences more 

broadly—for example, across jobs or 

locations or units—as long as the 

workers are comparable under the 

employer’s wage or salary system.70

New paragraph (d) prohibits 

contractors from implementing 

compensation practices, including 

performance review systems, that 

discriminate on the basis of sex under 

the disparate impact analysis of 

discrimination.71 New paragraph (e) 

restates longstanding OFCCP principles 

regarding the circumstances under 

which pay discrimination is a 

continuing violation under the 

Executive Order. 

Section 60–20.5 Discrimination on the 

Basis of Pregnancy, Childbirth, or 

Related Medical Conditions 

Current § 60–20.5 entitled 

‘‘Discriminatory wages’’ has been 

revised and moved to § 60–20.4 as 

discussed earlier in the preamble. 

This proposed section is new; 

however, it incorporates certain 

obligations already set forth in the 

current part 60–20 at paragraph 60– 

20.3(g) regarding the provision of leave 

to employees who require time away 

from work on account of childbearing. 

Proposed paragraph (a) of this section 

incorporates the principle set forth in 

the Pregnancy Discrimination Act that 

discrimination on the basis of sex 

includes ‘‘because of or on the basis of 

pregnancy, childbirth, or related 

medical conditions.’’ It requires that 

contractors treat employees and job 

applicants of childbearing capacity and 

those affected by pregnancy, childbirth, 

or related medical conditions the same 

for all employment-related purposes as 

other persons not so affected but similar 

in their ability or inability to work and 

defines the term ‘‘related medical 

conditions.’’ Further, it incorporates the 

provision in the PDA, codified in 42 

U.S.C. 2000e(k), that exempts employers 

from having to pay for health insurance 

benefits for abortion ‘‘except where the 

life of the mother would be endangered 

if the fetus were carried to term, or 

except where medical complications 

have arisen from an abortion,’’ and the 

further proviso that nothing in that 

exemption ‘‘preclude[s] a contractor 

from providing abortion benefits or 

otherwise affect[s] bargaining 

agreements in regard to abortion.’’ 

Proposed paragraph (b) sets forth 

some of the most common applications 

of the general principle of 

nondiscrimination on the basis of 

pregnancy, childbirth, or related 

medical conditions. These examples 

include refusing to hire applicants 

because of pregnancy or childbearing 

capacity (paragraph (b)(1)); firing 

employees or requiring them to go on 

leave because they become pregnant or 

have a child (paragraph (b)(2)); limiting 

a pregnant employee’s job duties based 

on pregnancy or requiring a doctor’s 

note in order for the employee to 

continue employment while pregnant 

(paragraph (b)(3)); and providing 

employees with health insurance that 

does not cover hospitalization and other 

medical costs for pregnancy, childbirth, 

or related medical conditions, including 

contraception coverage, to the same 

extent that such costs are covered for 

other medical conditions (paragraph 

(b)(4)). 

Paragraph (b)(5) includes, as another 

common example of discrimination 

based on pregnancy, childbirth, or 

related medical conditions, failure to 

provide reasonable workplace 

accommodations to employees affected 

by such conditions when such 

accommodations are provided to other 

workers similar in their ability or 

inability to work.72 Without such 

workplace accommodations, many 

pregnant workers are forced to go on 

leave. Unfortunately, insufficient jobprotected leave, time-limited temporary 

disability insurance, and minimal sick 

leave often fail to cover the entire period 

of pregnancy-related work limitations. 

Consequently, some pregnant workers 

who need reasonable accommodations 

lose their jobs, wages, and health care 

coverage.73

The range of accommodations to 

address the temporary limitations of a 

pregnant worker may include simple 

things that involve little or no cost, such 

as permitting more frequent bathroom 

breaks and allowing the pregnant 

worker to sit down during a shift.74

Other temporary limitations, however, 

may require a temporary light-duty 

assignment to accommodate lifting or 

bending restrictions that a pregnant 

worker may have. 

Denying an alternative job 

assignment, modified duties, or other 

accommodations to a pregnant 

employee who is temporarily unable to 

perform some job duties because of 

pregnancy, childbirth, or a related 

medical condition is sex discrimination 

when such assignments, modifications, 

or other accommodations are provided, 

or are required to be provided, by a 

contractor’s policy or other relevant 

laws, to other employees whose abilities 

to perform some of their job duties are 

similarly affected (paragraph (b)(5)). 

Thus, for example, a contractor that 

permits light-duty assignments for 

employees who are unable to work their 

regular assignments due to on-the-job 

injuries or disabilities must also permit 

light-duty assignments for employees 

who are unable to work their regular 

assignments due to pregnancy. The 

approach set forth here with respect to 

pregnancy accommodation is intended 

to align OFCCP’s regulations 

implementing Executive Order 11246 

with EEOC guidance in this area and 

with the position taken by the Federal 

government in Young v. United Parcel 

Serv., Inc., 707 F.3d 437 (4th Cir. 2013), 

cert. granted (U.S. No. 12–1226, July 1, 

2014), a case currently before the 

Supreme Court. Should the Supreme 

Court rule contrary to our interpretation, 

OFCCP’s final rule will be revised 

consistent with the ruling. 

The EEOC has long interpreted the 

PDA in this way, stating as early as 1979 


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75The EEOC further explained its position in 

EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 

1184 (10th Cir. 2000) (decided on other grounds). 

The EEOC argued in Horizon that ‘‘the Charging 

Parties are most appropriately compared to all 

temporarily-disabled, non-pregnant employees 

whether they sustained their injuries on or off the 

job.’’ Id. at 1194–1195 (emphasis added). 

76Other Sixth Circuit opinions appear to suggest 

a different interpretation of the PDA. Reeves v. Swift 

Transp. Co., 446 F.3d 637 (6th Cir. 2006); Tysinger 

v. Police Dept., 463 F.3d 569 (2006). In addition, 

other circuits have held that the reason for 

employees’ inability to work does make a difference 

to the determination whether employees affected by 

pregnancy, childbirth, or related medical conditions 

are similarly situated to those not so affected for 

purposes of receiving accommodations for their 

inability to work. Young v. United Parcel Serv., Inc., 

707 F.3d 437 (4th Cir. 2013), cert. granted (U.S. No. 

12–1226, July 1, 2014); Serednyj v. Beverly 

Healthcare, LLC, 656 F.3d 540, 548–549 (7th Cir. 

2011); Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 

1312–1313 (11th Cir. 1999); Urbano v. Continental 

Airlines, Inc., 138 F.3d 204, 207–208 (5th Cir.), cert. 

denied, 525 U.S. 1000 (1998); Troupe v. May Dep’t 

Stores Co., 20 F.3d 734, 738 (7th Cir. 1994). 

that ‘‘[a]n employer is required to treat 

an employee temporarily unable to 

perform the functions of her job because 

of her pregnancy-related condition in 

the same manner as it treats other 

temporarily disabled employees.’’ 29 

CFR pt. 1604, App. ¶ 5 (emphasis 

added). It reaffirmed this position in its 

2014 PDA enforcement guidance. EEOC, 

Enforcement Guidance: Pregnancy 

Discrimination and Related Issues 

I.C.1.b (July 14, 2014), http://

www.eeoc.gov/laws/guidance/

pregnancy_guidance.cfm; see also 9 

CFR pt. 1604, App. ¶ 5 (‘‘[a]n employer 

is required to treat an employee 

temporarily unable to perform the 

functions of her job because of her 

pregnancy-related condition in the same 

manner as it treats other temporarily 

disabled employees.’’) (emphasis 

added); id. (‘‘If other employees 

temporarily unable to lift are relieved of 

these functions, pregnant employees 

also unable to lift must be temporarily 

relieved of the function.’’). 

As the Government has argued in its 

brief before the Supreme Court in 

Young, nothing in the plain language of 

the PDA or any EEOC guidance suggests 

that the underlying reason for the 

inability to work is relevant; as long as 

the employees are ‘‘similar in their 

inability to work,’’ those affected by 

pregnancy, childbirth, or related 

medical conditions must be provided 

the same accommodation as those not so 

affected, regardless of the reasons for the 

inability to work. See Brief for the 

United States as Amicus Curiae 

Supporting Petitioner in Young v. 

United Parcel Service, Inc., No. 12–1226 

(U.S.), 2014 WL 4536939, at *16 

(‘‘Nothing in the PDA indicates that a 

pregnant employee faces discrimination 

. . . only when she receives less 

favorable treatment than every other 

employee who is similar in his or her 

ability or inability to work. The plain 

text of the statute prohibits treating 

pregnant employees less favorably (for 

any ‘employment-related purpose[ ]’) 

than ‘other persons not so affected but 

similar in their ability or inability to 

work.’’’) (citation omitted); id. at *26 

(‘‘Recognizing that petitioner has 

established a violation of the PDA is 

consistent with the longstanding 

position of the EEOC.’’).75 See also 

International Union v. Johnson 

Controls, Inc., 499 U.S. 187, 204–05 

(1991) (‘‘[u]nless pregnant employees 

differ from others in their ability or 

inability to work, they must be treated 

the same as other employees for all 

employment-related purposes’’ (citation 

and internal quotation marks omitted; 

emphases added)); Ensley-Gaines v. 

Runyon, 100 F.3d 1220 (6th Cir. 1996); 

Raciti-Hur v. Homan, No. 98–1218, 1999 

U.S. App. LEXIS 9551, 1999 WL 331650 

(6th Cir. May 13, 1999) (unpublished); 

Latowski v. Northwoods Nursing Center, 

No. 12–2408, 2013 U.S. App. LEXIS 

25738, at *10–*11 (6th Cir. December 

23, 2013) (unpublished).76

The phrase ‘‘or are required to be 

provided by a contractor’s policy or 

other relevant laws’’ is included to 

cover the situation where a contractor’s 

policy or a relevant law (such as the 

Americans with Disabilities Act of 1990, 

42 U.S.C. 12101 et seq., as amended 

(ADA), and section 503) would require 

an alternative job assignment or job 

modification to be provided to an 

employee not affected by pregnancy, 

childbirth, or related medical condition 

but who is similarly restricted in his or 

her ability to perform the job. In such 

a situation, the existence of the policy 

or law (e.g., the ADA and Section 503) 

requiring reasonable accommodation or 

job modifications for the one class of 

employees—employees with disabilities 

who are not affected by pregnancy, 

childbirth, or related medical 

conditions—requires that the contractor 

similarly provide such accommodations 

to pregnant employees who are similar 

in their ability or inability to work. 

Failure to do so is disparate treatment 

in violation of Executive Order 11246. 

The list in § 60–20.5(b) is by no means 

exhaustive, but rather, contains a few 

illustrative examples. The relevant 

provisions of the EEOC’s 2014 

enforcement guidance on pregnancy 

discrimination as well as its Guidelines 

on Discrimination Because of Sex (29 

CFR 1604.10) and Questions and 

Answers on the Pregnancy 

Discrimination Act (Appendix to part 

1604 of 29 CFR) provide additional 

instruction. 

Proposed paragraph (c) addresses the 

provision of leave related to pregnancy, 

childbirth, or related medical 

conditions. Paragraph (c)(1) sets forth 

the general title VII principle that 

neither family nor medical leave, 

including family or medical leave 

related to pregnancy, childbirth, or 

related medical conditions, may be 

denied or provided differently on the 

basis of sex. Paragraph (c)(2) elaborates 

on this general principle. Paragraph 

(c)(2)(a) requires that employees affected 

by pregnancy, childbirth, or related 

medical conditions be granted medical 

leave, including paid sick leave, on the 

same basis that such leave is granted to 

other employees unable to work for 

other medical reasons. An employer 

may not impose requirements on 

pregnancy leave not imposed on other 

employees similar in their ability or 

inability to work. For example, 

employers may not impose a shorter 

maximum amount of pregnancy leave as 

compared to the maximum time off 

allowed for other types of medical or 

short-term disability leave. Paragraph 

(c)(2)(b) requires that family leave be 

provided to men on the same terms that 

it is provided to women. 

Consistent with the EEOC’s 

Guidelines on Discrimination Because 

of Sex, 29 CFR 1604.10(c), and Section 

I.B.2 of its recent enforcement guidance 

on pregnancy discrimination, proposed 

paragraph (c)(3) applies disparate 

impact analysis to contractor leave 

policies that are inadequate such that 

they have a disparate impact on 

members of one sex. Thus, a contractor 

that provides workers who are 

temporarily unable to work due to 

pregnancy, childbirth, or related 

medical conditions with no parental or 

medical leave at all, or with insufficient 

leave, may be held liable for 

discrimination based on sex, if such a 

practice is found to have an adverse 

impact on such workers, unless the 

contractor can demonstrate that the 

failure to provide leave or sufficient 

leave is job related and consistent with 

business necessity. 

It should be noted that this provision 

is different from current § 60–20.3(g), 

which requires contractors to provide 

maternity leave whether or not their 

failure to do so has a disparate impact 

on women. However, OFCCP has not 

enforced this requirement in § 60– 

20.3(g) for some time. Instead, as was 

stated in its previous Federal Contractor 

Compliance Manual (FCCM), issued in 

1988, OFCCP has: 


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77U.S. Department of Labor, Office of Federal 

Contract Compliance Programs Federal Contract 

Compliance Manual (1988), ch. 3, § 3G01(h)(2) (on 

file with OFCCP) (hereinafter Previous FCCM). A 

version of this Manual (dated 1993, but containing 

the same language) is available at http://

www.docstoc.com/docs/8387063/Federal-Contract 

(last accessed Oct. 7, 2014). 

78 Indeed, the FCCM follows current law, 

providing that ‘‘if the contractor is not providing 

equal fringe benefits and/or not making equal 

contributions to insurance plans or pensions for 

men and women, this may constitute 

discrimination.’’ FCCM, ch. 2, § 2L03. The Previous 

FCCM also noted the discrepancy between OFCCP’s 

regulations and title VII law, providing (in chapter 

3, § 3G01(h)(3)) that because— 

OFCCP’s policy is to interpret the 

nondiscrimination provisions of the Executive 

Order consistent with Title VII principles. . . , if 

[an OFCCP compliance officer] becomes aware of a 

situation where a contractor is either not paying 

equal fringe benefits and/or not making equal 

contributions to fringe benefits for men and women, 

the matter should be brought to the attention of 

RSOL [the Regional Solicitor of Labor]. 

79Price Waterhouse, 490 U.S. at 235. 

80See also Centola v. Potter, 183 F. Supp. 2d 403 

(D. Mass. 2002) (‘‘Sexual orientation harassment is 

often, if not always, motivated by a desire to enforce 

heterosexually defined gender norms. In fact, 

stereotypes about homosexuality are directly related 

to our stereotype about the proper roles of men and 

women.’’); Heller v. Columbia Edgewater Country 

Club, 195 F. Supp. 2d 1212 (D. Or. 2002) (‘‘[A] jury 

could find that Cagle repeatedly harassed (and 

ultimately discharged) Heller because Heller did 

not conform to Cagle’s stereotype of how a woman 

ought to behave. Heller is attracted to and dates 

other women, whereas Cagle believes that a woman 

should be attracted to and date only men.’’). The 

EEOC has recognized in a long line of federal sector 

decisions that adverse actions taken on the basis of 

sex stereotypes related to sexual orientation violate 

Title VII. Castello v. U.S. Postal Service, EEOC 

Request No. 0520110649, 2011 WL 6960810 (Dec. 

20, 2011) (sex-stereotyping evidence entailed 

offensive comment by manager about female 

subordinate’s relationships with women); Veretto v. 

U.S. Postal Service, EEOC Appeal No. 0120110873, 

2011 WL 2663401 (July 1, 2011) (complainant 

stated plausible sex-stereotyping claim alleging 

harassment because he married a man); Culp v. 

Dep’t of Homeland Security, EEOC Appeal 

0720130012, 2013 WL 2146756 (May 7, 2013) (Title 

VII covers discrimination based on associating with 

lesbian colleague); Couch v. Dep’t of Energy, EEOC 

Appeal No. 0120131136, 2013 WL 4499198, at *8 

(Aug. 13, 2013) (complainant’s claim of harassment 

based on his ‘‘perceived sexual orientation’’); 

Complainant v. Department of Homeland Security, 

EEOC Appeal No. 0120110576, 2014 WL 4407422 

(Aug. 20, 2014) (‘‘While Title VII’s prohibition of 

discrimination does not explicitly include sexual 

orientation as a basis, Title VII prohibits sex 

discrimination, including sex-stereotyping 

discrimination and gender discrimination’’ and 

‘‘sex discrimination claims may intersect with 

claims of sexual orientation discrimination.’’). 

81The U.S. Court of Appeals for the Seventh 

Circuit articulated this principle as early as 1971. 

Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 

1198 (7th Cir. 1971) (‘‘In forbidding employers to 

discriminate against individuals because of their 

sex, Congress intended to strike at the entire 

spectrum of disparate treatment of men and women 

resulting from sex stereotypes.’’) (emphasis added). 

consistent with the PDA, [current] 41 CFR 

60–1.4(a), and the EEOC Guidelines on 

Discrimination Because of Sex, . . . 

implement[ed] the following policies: 

i. . . . 

ii. If the contractor’s leave policy, or lack 

thereof, has an adverse impact on employees 

of one sex and is not justified by business 

necessity, it violates the Executive Order.77

Similarly, the current FCCM requires 

Compliance Officers to ‘‘examine 

whether the contractor’s leave policy, or 

lack thereof, has an adverse impact on 

employees of one sex and is not justified 

by business necessity.’’ Section 2H01(b). 

Thus, proposed paragraph (c)(3) is 

consistent both with OFCCP’s current 

and long-standing practice. 

OFCCP welcomes comments from 

stakeholders about current practices and 

policies regarding workplace 

accommodations and leave for 

pregnancy, childbirth, or related 

medical conditions; for care for 

newborn or newly adopted or foster 

children; and for an employee’s serious 

health conditions (other than those 

related to pregnancy and childbirth). 

Section 60–20.6 Other Fringe Benefits 

Current § 60–20.6 entitled 

‘‘Affirmative action’’ has been removed 

because the requirements related to 

affirmative action programs are set forth 

in parts 60–2 and 60–4 of this title. 

This proposed section is new and is 

divided into three paragraphs. Proposed 

paragraph (a) states the general 

principle that contractors may not 

discriminate on the basis of sex in the 

provision of fringe benefits. Proposed 

paragraph (b) defines ‘‘fringe benefits’’ 

broadly to encompass a variety of such 

benefits that are now provided by 

contractors. In proposed paragraph (c), 

OFCCP replaces the inaccurate 

statement found at current § 60–20.3(c) 

that a contractor will not be considered 

to have violated the Executive Order if 

its contributions for fringe benefits are 

the same for men and women or if the 

resulting benefits are equal. In 1978, the 

Supreme Court held that under title VII, 

an employer must provide equal 

benefits to men and women, even if 

doing so costs more for one sex than the 

other. City of Los Angeles v. Manhart, 

435 U.S. 702 (1978); see also Ariz. 

Governing Comm. v. Norris, 463 U.S. 

1073 (1983).78

Section 60–20.7 Employment 

Decisions Made on the Basis of SexBased Stereotypes 

This proposed section is new. It states 

the well-recognized principle that 

employment decisions made on the 

basis of stereotypes about how males 

and/or females are expected to look, 

speak, or act are a form of sex-based 

employment discrimination. As the 

Supreme Court stated in Price 

Waterhouse v. Hopkins, 490 U.S. at 251, 

‘‘we are beyond the day when an 

employer can evaluate employees by 

assuming or insisting that they match 

the stereotype associated with their . . . 

[sex].’’ In Price Waterhouse, the Court 

held that an employer’s failure to 

promote a female senior manager to 

partner because of the sex-stereotyped 

perceptions that she was too aggressive 

and did not ‘‘walk more femininely, talk 

more femininely, dress more 

femininely, wear make-up, have her hair 

styled, and wear jewelry’’ was unlawful 

sex-based employment 

discrimination.79 The principle that sexbased stereotyping is a form of sex 

discrimination has been applied 

consistently in Supreme Court and 

lower-court decisions. See, e.g., Nevada 

Dep’t of Human Res. v. Hibbs, 538 U.S. 

721 (2003) (stereotype-based beliefs 

about the allocation of family duties on 

which state employers relied in 

establishing discriminatory leave 

policies held to be sex discrimination 

under the Constitution); Chadwick v. 

Wellpoint, Inc., 561 F.3d 38 (1st Cir. 

2009) (making employment decision 

based on the belief that women with 

young children neglect their job 

responsibilities is unlawful sex 

discrimination); Prowel v. Wise Bus. 

Forms, Inc., 579 F.3d 285 (3d Cir. 2009) 

(harassment based on a man’s 

effeminacy); Terveer v. Billington, 2014 

WL 1280301 (D. DC March 31, 2014) 

(hostile work environment based on 

stereotyped beliefs about the 

appropriateness of same-sex 

relationships).80 Cf. U.S. v. Virginia, 518 

U.S. 515, 533 (1996) (in making 

classifications based on sex, state 

governments ‘‘must not rely on 

overbroad generalizations about the 

different talents, capacities, or 

preferences of males and females’’).81

Specific examples of such stereotyping 

follow in proposed paragraphs (a) 

through (c). 

Proposed paragraphs 60–20.7(a), (b), 

and (c) address stereotyping based on an 

employee’s nonconformity with norms 

about how people with the employee’s 

assigned sex at birth should look, speak, 

and act. Paragraph (a) sets forth three 

examples of such stereotyping: in 

proposed paragraph 60–20.7(a)(1), 

failure to promote female employee 

because she did not wear jewelry, makeup, or high heels (see Price Waterhouse, 

supra); in proposed paragraph 60– 

20.7(a)(2), harassment of a man because 

he is too effeminate, (see Prowel v. Wise 

Bus. Forms, Inc., supra); and in 

proposed paragraph 60–20.7(a)(3), 

adverse treatment of an employee 

because he or she does not conform to 

sex-role expectations by being in a 


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82See also Statement of Interest of the United 

States at 4, Apr. 4, 2014, in Burnett v. City of 

Philadelphia, No. 09–4348 (E.D. Pa.) (‘‘Since Price 

Waterhouse, in cases where the defendant’s action 

had been motivated by the plaintiff’s failure to 

conform with sex-based stereotypes, every Federal 

circuit court of appeals that has addressed the 

question has recognized that disparate treatment 

against a transgender plaintiff can be discrimination 

‘because . . . of sex.’ ’’). 

83 42 U.S.C. 13981. 

84 15 U.S.C. 1691. 

85EEOC, Enforcement Guidance: Unlawful 

Disparate Treatment of Workers with Caregiving 

Responsibilities II.A.3 (last modified Feb. 8, 2011), 

http://www.eeoc.gov/policy/docs/caregiving.html 

(last accessed Oct. 2, 2014). 

86U.S. Equal Employment Opportunity 

Commission Guidelines on Discrimination Because 

of Sex, 41 CFR 1604.11 (1980) (provision on 

harassment); Harris v. Forklift Sys., 510 U.S. 17 

(1993); Meritor Savings Bank v. Vinson, 477 U.S. 57 

(1986); Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 

1977). 

87 In FY 2013, the EEOC received 7,256 sexual 

harassment charges (out of 93,727). U.S. Equal 

Employment Opportunity Commission, 

Enforcement & Litigation Statistics, Sexual 

Harassment Charges FY 2010—2013, available at 

http://www.eeoc.gov/eeoc/statistics/enforcement/

sexual_harassment_new.cfm (last accessed Nov. 2, 

2014); U.S. Equal Employment Opportunity 

Commission, Enforcement and Litigation Statistics, 

Charge Statistics: FY 1997 Through FY 2013, 

available at http://eeoc.gov/eeoc/statistics/

enforcement/charges.cfm (last accessed Nov. 2, 

2014). In FY 2011 (the last year for which combined 

data is available), the EEOC and state and local fair 

employment practices agencies together received 

just over 11,300 charges of sexual harassment. The 

average number of such claims filed per year from 

FY 2000 through FY 2011 was 13,446. OFCCP 

calculations from data in U.S. Equal Employment 

Opportunity Commission, Enforcement & Litigation 

Statistics, Sexual Harassment Charges: EEOC & 

FEPAs Combined: FY 1997—FY 2011, available at 

http://www.eeoc.gov/eeoc/statistics/enforcement/

sexual_harassment.cfm (last accessed Nov. 2, 2014). 

88The one reference to harassment in OFCCP’s 

current body of regulations implementing Executive 

Order 11246 is that construction contractors are 

required to ‘‘[e]nsure and maintain a working 

environment free of harassment, intimidation, and 

coercion at all sites.’’ 41 CFR 60–4.3(a) (subsections 

7(a) and (n) of the required Equal Opportunity 

Clause for construction contracts). 

In addition, in chapter 3, § 2H01(d), the FCCM 

recognizes that ‘‘[a]lthough not specifically 

mentioned in the Guidelines, sexual harassment (as 

well as harassment on the basis of race, national 

origin or religion) is a violation of the 

nondiscrimination provisions of the Executive 

Order’’ and directs OFCCP compliance officers to 

‘‘be alert for any indications of such harassment.’’ 

It goes on to state that ‘‘OFCCP follows Title VII 

principles when determining whether sexual 

harassment has occurred.’’ 

relationship with a person of the same 

sex (see Veretto v. U.S. Postal Service 

and Castello v. U.S. Postal Service, 

supra note 80). 

Paragraph (b) addresses disparate 

treatment based on gender identity. As 

noted above, disparate treatment of a 

transgender employee may constitute 

discrimination because of the 

individual’s non-conformity to sexbased stereotypes. Barnes v. City of 

Cincinnati, 401 F.3d 729 (6th Cir. 2005) 

(holding that transgender woman was a 

member of a protected class based on 

her failure to conform to sex-based 

stereotypes and thus her title VII claim 

was actionable); Smith v. City of Salem, 

378 F.3d 566, 574 (6th Cir. 2004) 

(‘‘discrimination against a plaintiff who 

is a transsexual [sic]—and therefore fails 

to act and/or identify with his or her 

gender—is no different from the 

discrimination directed against [the 

plaintiff] in Price Waterhouse who, in 

sex-stereotypical terms, did not act like 

a woman’’); Schroer v. Billington, supra, 

at 305–06 (D.D.C. 2008) (withdrawal of 

a job offer from a transgender applicant 

constituted sex-stereotyping 

discrimination in violation of title VII). 

In addition to these appellate cases, 

‘‘[t]here has likewise been a steady 

stream of district court decisions 

recognizing that discrimination against 

transsexuals [sic] on the basis of sexbased stereotyping constitutes 

discrimination because of sex.’’ Macy v. 

Holder, supra. See also Glenn v. 

Brumby, 663 F.3d 1312 (11th Cir. 2011) 

(termination of a transgender employee 

constituted discrimination on the basis 

of gender non-conformity and sexstereotyping discrimination under Equal 

Protection Clause). Cf. Oncale v. 

Sundowner Offshore Servs., 523 U.S. 75, 

78 (1998) (same-sex harassment may be 

sex discrimination); Prowel v. Wise Bus. 

Forms, 579 F.3d 285 (3d Cir. 2009) 

(harassment of an ‘‘effeminate’’ man 

may be sex discrimination).82 This 

principle—that discrimination against a 

transgender individual is discrimination 

based on non-conformity to sex-based 

stereotypes, and thus sex 

discrimination—has also been adopted 

under the Gender-Motivated Violence 

Act,83 Schwenk v. Hartford, 204 F.3d 

1187, 1201–02 (9th Cir. 2000), and the 

Equal Credit Opportunity Act,84 Rosa v. 

Park W. Bank & Trust Co., 214 F.3d 213, 

215–16 (1st Cir. 2000). 

Paragraph 60–20.7(c) addresses 

stereotyping based on specific 

expectations about the proper roles of 

women and men regarding caregiving. 

As noted above, the EEOC recognizes 

that adverse treatment of women 

stemming from sex-based assumptions 

about ‘‘childcare responsibilities that 

will make female employees less 

dependable than male employees’’ 

violates title VII.85 Even an employer’s 

perceptions of a caregiver’s work 

performance can, consciously or 

unconsciously, be affected by sex-based 

stereotypes that female caregivers are 

‘‘less capable and skilled than their 

childless female counterparts or their 

male counterparts’’ (Caregiving 

Guidance, II.A.4). Moreover— 

Gender-based stereotypes may also 

influence how male workers are perceived: 

‘‘Stereotypes about women’s domestic roles 

are reinforced by parallel stereotypes 

presuming a lack of domestic responsibilities 

for men. These mutually reinforcing 

stereotypes created a self-fulfilling cycle of 

discrimination.’’ Stereotypes of men as 

‘‘bread winners’’ can further lead to the 

perception that a man who works part time 

is not a good father, even if he does so to care 

for his children. Thus, while working women 

have generally borne the brunt of genderbased stereotyping, unlawful assumptions 

about working fathers and other male 

caregivers have sometimes led employers to 

deny male employees opportunities that have 

been provided to working women or to 

subject men who are primary caregivers to 

harassment or other disparate treatment. For 

example, some employers have denied male 

employees’ requests for leave for childcare 

purposes even while granting female 

employees’ requests. 

Caregiving Guidance II.C [footnotes 

omitted]. 

In its introduction, the Caregiving 

Guidance also notes that discrimination 

against caregivers may also fall under 

the ADA, which prohibits 

discrimination based on an employee’s 

association with an individual with a 

disability. The same is true of section 

503. 

Section 60–20.8 Harassment and 

Hostile Work Environments 

This proposed section is new. It has 

been well-recognized for many years 

that harassment on the basis of sex, 

including the existence of a work 

environment that is hostile to members 

of one sex, may give rise to a violation 

of title VII.86 Moreover, sexual 

harassment continues to be a serious 

problem for women in the workplace 87

and a significant barrier to women’s 

entry into and advancement in many 

nontraditional occupations, including 

the construction trades and the 

computer and information technology 

industries. Yet, current part 60–20 does 

not include any references to sexual 

harassment or hostile work 

environments. Proposed § 20.8 remedies 

this omission.88

Proposed paragraph 60–20.8(a) 

incorporates the provision of EEOC’s 

Guidelines relating to sexual harassment 

virtually verbatim. See 29 CFR 

1604.11(a). Inclusion of the EEOC 

language is intended to align the 

prohibitions of sexually harassing 

conduct under the Executive Order with 

the prohibitions under title VII. 

Proposed paragraph 60–20.8(b) 

defines harassment because of sex under 

the Executive Order broadly to include 

sexual harassment (including sexual 


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89The Supreme Court established this affirmative 

defense in Burlington Industries, Inc. v. Ellerth, 524 

U.S. 742 (1998), and Faragher v. City of Boca Raton, 

524 U.S. 775 (1998). See also U.S. Equal 

Employment Opportunity Commission, 

Enforcement Guidance on Vicarious Employer 

Liability for Unlawful Harassment by Supervisors 

(July 18, 1999), available at http://www.eeoc.gov/

policy/docs/harassment.html (last accessed Oct. 7, 

2014) [hereinafter EEOC Guidance on Vicarious 

Liability for Unlawful Harassment]. 

90EEOC Guidance on Vicarious Liability for 

Unlawful Harassment, supra note 89, § V(C). 

91Press Release, Bureau of Labor Statistics, U.S. 

Department of Labor, Employer Costs for Employee 

Compensation—December 2013, at 4, available at 

http://www.bls.gov/news.release/pdf/ecec.pdf (last 

accessed Oct. 6, 2014). 

92U.S. General Services Administration, System 

for Award Management, Legacy CCR Extracts Public 

(‘‘FOIA’’) Data Package, May 2014, available at 

https://www.sam.gov/portal/public/SAM/(last 

accessed June 14, 2014). 

93 In addition to these reasons to believe that the 

SAM data yield an overestimate of the number of 

entities affected by this rule, there is at least one 

reason to believe the data yield an underestimate: 

SAM does not necessarily include all 

subcontractors. But this data limitation 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 in fact be included in the SAM data. 

harassment based on gender identity), 

harassment based on pregnancy, 

childbirth, or related medical 

conditions, and harassment that is not 

sexual in nature but is because of sex 

(including harassment based on gender 

identity). This aligns the meaning of 

‘‘because of sex’’ for purposes of sexual 

harassment with its meaning under 

current title VII and Executive Order 

law. See proposed § 60–20.2, which 

includes discrimination on the bases of 

pregnancy, childbirth, or related 

medical conditions and gender identity 

discrimination as types of sex 

discrimination. 

Proposed paragraph 60–20.8(c) 

suggests as best practices procedures 

that contractors may develop and 

implement ‘‘to ensure an environment 

in which all employees feel safe, 

welcomed, and treated fairly . . . [and] 

are not harassed because of sex.’’ The 

suggested procedures are: Broad 

dissemination of the message ‘‘that 

harassing conduct will not be tolerated’’ 

(paragraph 60–20.8(c)(1)); antiharassment training (paragraph 60– 

20.8(c)(2)); and procedures for handling 

and resolving complaints ‘‘about 

harassment and intimidation based on 

sex’’ (paragraph 60–20.8(c)(3)). 

Contractors are not required to use such 

procedures and will not be found in 

violation of this part for not using such 

procedures. We note, however, that 

using such procedures may assist 

contractors in meeting their obligations 

with respect to harassment and hostile 

work environments. Procedures such as 

these are key to preventing harassment 

before it occurs. 

In addition, a contractor can avoid or 

reduce liability for certain sexually 

harassing acts committed by its 

supervisors if it can show that it has 

taken reasonable care to prevent and 

correct harassment.89 The activities 

listed in paragraph 60–20.8(c) are the 

kinds of activities that would help a 

contractor in making that showing. For 

example, taking reasonable care 

‘‘generally requires establish[ing], 

disseminat[ing], and enforcing an antiharassment policy and complaint 

procedure.’’ 90 The law does not require 

such activities, but it does encourage 

employers to engage in them. 

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). 

Executive Order 13563 directs 

agencies to propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; tailor the regulation to impose the 

least burden on society, consistent with 

obtaining the regulatory objectives; and 

in choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits. 

Executive Order 13563 recognizes that 

some benefits are difficult to quantify 

and provides that, where appropriate 

and permitted by law, agencies may 

consider and discuss qualitatively 

values that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. 

This proposed rule has been 

designated a ‘‘significant regulatory 

action’’ although not economically 

significant, under § 3(f) of Executive 

Order 12866. The NPRM is not 

economically significant, as it will not 

have an annual effect on the economy 

of $100 million or more. The Office of 

Management and Budget has reviewed 

the NPRM. 

The Need for the Regulation 

OFCCP’s longstanding policy is to 

follow title VII principles when 

conducting analyses of potential sex 

discrimination under Executive Order 

11246. See Notice of Final Rescission, 

78 FR 13508, February 28, 2013. 

However, the existing Sex 

Discrimination Guidelines, unchanged 

since their initial promulgation in 1970 

and re-issuance in 1978, are no longer 

an accurate depiction of current title VII 

principles. Title VII has been 

significantly amended four times since 

that time, and the Supreme Court has 

issued several decisions clarifying that 

practices such as sexual harassment can 

be unlawful discrimination. In light of 

these changes, this proposed rule 

revises the current Guidelines, and 

replaces them with new sex 

discrimination regulations that 

accurately set forth a contractor’s 

obligation not to discriminate on the 

basis of sex in accordance with current 

title VII principles. (A more detailed 

discussion of the need for the regulation 

is contained in Reasons for Amending 

the Current Sex Discrimination 

Guidelines, supra.) 

Discussion of Impacts 

In this section, OFCCP presents a 

summary of the costs associated with 

the new requirements in part 60–20. 

Comments are welcome on every aspect 

of the cost and burden calculations 

including but not limited to the amount 

of time contractors would spend on 

complying with the proposals in this 

NPRM, including those related to 

accommodations for light duty. 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 compensation for 

Management, Professionals, and Related 

Occupations as $51.58 per hour.91

There are approximately 500,000 

contractor firms, employing 

approximately 65 million employees, 

registered in the SAM. Therefore, 

OFCCP estimates that 500,000 

contractor companies or firms may be 

affected by the proposed new 

provisions.92 The SAM number results 

in an overestimation for several reasons: 

the system captures firms that do not 

meet the $10,000 jurisdictional dollar 

threshold for this proposed rule; it 

captures inactive contracts, although 

OFCCP’s jurisdiction covers only active 

contracts; and it captures thousands of 

recipients of Federal grants and Federal 

financial assistance, which are not 

contractors.93


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94See supra note 91 and accompanying text. 

95The existing § 60–20.5 addressed 

discriminatory wages. The proposed § 60–20.4 

incorporates that existing requirement and updates 

it to be consistent with current title VII law. 

Cost of Regulatory Familiarization 

Agencies are required to include in 

the burden analysis the estimated time 

it takes for contractors to review and 

understand the instructions for 

compliance. See 5 CFR 1320.3(b)(1)(i). 

In order to minimize this burden, 

OFCCP will publish compliance 

assistance materials including, but not 

limited to, fact sheets and ‘‘Frequently 

Asked Questions.’’ OFCCP will also host 

webinars for the contractor community 

that will describe the new requirements 

and conduct listening sessions to 

identify any specific challenges 

contractors believe they face, or may 

face, when complying with the 

requirements. 

Based on its experience with Federal 

contractors’ compliance with the laws 

OFCCP enforces, OFCCP believes that 

human resources or personnel managers 

at each contractor establishment or firm 

will become responsible for 

understanding or becoming familiar 

with the new 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 

new requirements. Consequently, the 

estimated burden for rule 

familiarization is 500,000 hours 

(500,000 contractor companies × 1 hour 

= 500,000 hours). Based on data from 

the Bureau of Labor Statistics, which 

lists total compensation for the 

Management, Professional, and Related 

Occupations group at $51.58,94 we 

calculate the total estimated cost as 

$25,790,000 (500,000 hours × $51.58/

hour = $25,790,000) or $52 per 

contractor company. 

Cost of Proposed Provisions 

The NPRM proposes revising the 

current Sex Discrimination Guidelines 

to replace them with regulations that set 

forth requirements that Federal 

contractors and subcontractors and 

federally assisted construction 

contractors and subcontractors must 

meet in fulfilling their obligations under 

Executive Order 11246, as amended, to 

ensure nondiscrimination in 

employment on the basis of sex. In order 

to reduce the burden and increase 

understanding, the NPRM includes 

examples of prohibited employment 

practices with each of the provisions. 

The NPRM proposes changing the 

title of the regulation to provide clarity 

that the provisions in part 60–20 are 

regulations implementing Executive 

Order 11246. The title change does not 

incur burden. 

The NPRM proposes minor edits to 

§ 60–20.1, including deleting a sentence 

explaining the reason for promulgating 

this part of the regulation, and 

modifying the sentence notifying the 

public that part 60–20 is to be read in 

connection with existing regulations. 

These minor edits update the 

regulations and provide clarity. Because 

the edits do not cause additional action 

on the part of contractors, no additional 

burden is associated with this section. 

Section 60–20.2, General Prohibitions, 

of the NPRM proposes removing the 

current section ‘‘Recruitment and 

advertisement’’ section and replacing it 

with a section that articulates the 

general prohibition against sex 

discrimination in employment. The 

general prohibition against sex 

discrimination in employment is not a 

new provision and as such does not 

require any additional action on the part 

of Federal contractors, subcontractors, 

or federally assisted construction 

contractors or subcontractors. Thus no 

burden is assessed for this provision. 

The NPRM proposes replacing the 

current § 60–20.3 (Job policies and 

practices) with ‘‘Sex as a bona fide 

occupational qualification.’’ In this 

section, the NPRM proposes to 

consolidate in one provision the current 

references to the BFOQ defense 

available to employers and update the 

language set forth in title VII. This 

reorganization is intended to make it 

easier for Federal contractors, 

subcontractors, and federally assisted 

construction contractors and 

subcontractors to locate and understand 

the BFOQ defense. This section 

reorganizes existing information and 

does not incur additional burden. Thus 

no burden is assessed for this provision. 

Section 60–20.4 proposes to replace 

the current provision addressing 

seniority systems with a section 

addressing discrimination in 

compensation practices. The proposed 

section provides clear guidance to 

covered contractors on their obligation 

to provide equal opportunity with 

respect to compensation. It provides 

guidance on determining similarly 

situated employees and confirms that 

OFCCP follows title VII principles in 

investigating compensation 

discrimination. The provisions do not 

create new requirements; rather, they 

clarify existing provisions regarding 

compensation discrimination, thus 

reducing confusion that may have 

resulted in the analysis of compensation 

discrimination.95 Therefore no new 

burden or new benefit (beyond 

confusion reduction) is created by this 

provision. 

The NPRM proposes to address 

discrimination on the basis of 

pregnancy, childbirth, or related 

medical conditions in Section 60–20.5. 

Subsection 60–20.5(a) prohibits 

discrimination on the basis of 

pregnancy, childbirth, or related 

medical conditions, including 

childbearing capacity. This clarifies 

current law that discrimination based 

on any of these factors is prohibited 

under Executive Order 11246 and as 

such does not generate new burden or 

new benefits (with the exception of 

reduced confusion). 

Subsection 60–20.5(b) provides a nonexhaustive list of examples of unlawful 

pregnancy discrimination, including 

refusing to hire pregnant applicants; 

firing an employee or requiring an 

employee to go on leave because the 

employee becomes pregnant; limiting a 

pregnant employee’s job duties based on 

pregnancy or requiring a doctor’s note 

in order for a pregnant employee to 

continue employment; providing 

employees with health insurance that 

does not cover hospitalization and other 

medical costs related to pregnancy, 

childbirth, or related medical conditions 

when hospitalization is provided for 

other medical conditions; and denying 

an alternative job assignment, modified 

duties or other accommodations to a 

pregnant employee when such 

accommodations are provided or are 

required to be provided by a contractor’s 

policy or by other relevant laws to other 

employees whose abilities or inabilities 

to work are similar. The clarification, 

including the examples provided in 

subsection 60–20.5(b), reduces 

contractors’ confusion by harmonizing 

OFCCP’s outdated regulations with 

current title VII jurisprudence. Although 

OFCCP believes that Federal contractors 

are already required to provide 

accommodations and light duty under 

title VII, because some courts disagree 

with this interpretation, see supra note 

76 and accompanying text, it estimates 

that there will be some burden 

associated with this provision for 

contractors that did not provide 

accommodations or light duty in the 

past. 

To determine the burden of this 

accommodations provision, OFCCP first 

estimated the number of workers who 

may need an accommodation or light 


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96Women in the Labor Force, supra note 12, at 

2. 

97Centers for Disease Control and Prevention, 

National Center for Health Statistics, NCHS Data 

Brief No. 136: Pregnancy Rates for U.S. Women 

Continue to Drop 2 (2013) available at http://

www.cdc.gov/nchs/data/databriefs/db136.pdf (last 

accessed Oct. 6, 2014). 

98This may be an overestimation of the number 

of pregnant workers because there is limited data 

available regarding the age of employees of federal 

contractors. 

99U.S. Census Bureau, American Fact Finder, 

Women 16 to 50 Years Who Had a Birth in the Past 

12 Months by Marital Status and Labor Force 

Status, 2009 to 2011 American Community Survey 

3-Year Estimates, available at http://

factfinder2.census.gov/faces/tableservices/jsf/

pages/productview.xhtml?pid=ACS_11_3YR_

B13012&prodType=table (last accessed Aug. 1, 

2014). The data table reports birth rates for women 

in labor force at 5.1 percent, compared to women 

not in the labor force at 8.4 percent. Comparing the 

two rates (5.1 percent to 8.1 percent), the birth rate 

of women in the labor force was 61 percent that of 

women not in the labor force. Therefore, 

multiplying the pregnancy rate among women of 

working age, 10.9 percent, by 61 percent results in 

a 6.7 percent pregnancy rate. 

100 Id. 

101S. Malmqvist et.al., Prevalence of low back 

and pelvic pain during pregnancy (Abstract), J. 

Manipulative Physiological Therapy, National 

Center for Biotechnology Information (2012), 

available at http://www.ncbi.nlm.nih.gov/pubmed/

22632586, (last accessed Oct. 6, 2014). 

102Unlawful Discrimination Against Pregnant 

Workers and Workers with Caregiving 

Responsibilities: Meeting of the U.S. Equal Emp. 

Opportunity Comm’n 8 (Feb. 15, 2012) (statement 

of Dr. Stephen Benard, Professor of Sociology, 

Indiana University), available at http://

www.eeoc.gov/eeoc/meetings/2-15-12/

transcript.cfm (last accessed Oct. 6, 2014). 

103Heavy Lift, supra note 51, at 12. 

104Eugene Declerq et al., W.K. Kellogg 

Foundation, Listening to Mothers III: New Mothers 

Speak Out, 36, (2013). 

105Beth Loy, Job Accommodation Network, 

Workplace Accommodations: Low Cost, High 

Impact, available at http://askjan.org/media/

lowcosthighimpact.html (last updated Sept. 1, 2014) 

(last accessed Oct. 6, 2014). 

duty during pregnancy. No specific data 

sets detail the characteristics of Federal 

contractor and subcontractor workers 

relating to pregnancy. Thus OFCCP 

relied on the data sets available for the 

general population and general labor 

force. OFCCP believes that the 

characteristics of the general labor force 

are similar to the Federal contractor 

workforce. 

In estimating the burden associated 

with the accommodations provision, 

OFCCP determined that there are 

approximately 65 million employees 

who work for the Federal contractors 

and other recipients of Federal monies 

that are included in the SAM database. 

Because the data does not indicate 

gender demographics, OFCCP used data 

from the Bureau of Labor Statistics that 

indicates that 47 percent of the 

workforce is female.96 According to 

National Center for Health Statistics 

(NCHS) data, there were 6,127,000 

pregnancies among women ages 18 to 44 

in the United States in 2009 among the 

general population.97 When compared 

to data from the U.S. Census for the 

same time period, that number of 

pregnancies reflects a pregnancy rate of 

approximately 10.9 percent.98

OFCCP further refined this rate to 

reflect pregnancies of working women. 

NCHS’s pregnancy rate did not 

distinguish between working and nonworking women. Thus OFCCP turned to 

data from the U.S. Census. U.S. Census 

American Fact Finder does not report 

on pregnancy, but does report on births. 

Census data also shows whether the 

mother was in the labor force. As this 

is the best data available, OFCCP used 

the ratio of births among working and 

non-working mothers to determine the 

pregnancy rate of women in the 

workforce. Thus, OFCCP determined 

that the pregnancy rate for women in 

the workforce is approximately 61 

percent of the rate for women in the 

general population, translating to a 

pregnancy rate of 6.7 percent of women 

in the Federal contractor workforce.99

Based on the above, OFCCP estimates 

approximately 2,046,850 women (four 

women per SAM contractor firm) in the 

Federal contractor workforce would be 

pregnant in a year.100

Not every pregnant employee in the 

Federal contractor workforce will 

require an accommodation that might 

involve more than a de minimis cost. 

Many will have no medical condition 

associated with their pregnancies that 

require such accommodation. Even for 

those who do have such conditions, the 

positions that require such 

accommodation generally involve 

physical exertion or standing; such 

positions are likely to be found in the 

job categories of craft workers, 

operatives, laborers, and service 

workers. Based on data from the 

Employer Information Report EEO–1, 

OFCCP estimates that 21 percent of 

women in the Federal contractor 

workforce are in such job categories. 

Thus, of the 2,046,850 women who may 

be pregnant, 429,839 are in positions in 

the job categories likely to require 

accommodations that might involve 

more than a de minimis cost. 

Reports from NIH show that the 

incidence of medical conditions during 

pregnancy that require accommodations 

ranges from 0.5 percent (placenta 

previa) to 50 percent (back issues).101

Thus, OFCCP estimates that of the 

approximately 429,839 women in 

positions that require physical exertion 

or standing, half or 214,920 may require 

some type of an accommodation or light 

duty. 

The types of accommodations needed 

during pregnancy also vary. They range 

from time off for medical appointments 

and more frequent breaks to stools for 

sitting and assistance with heavy 

lifting.102 Reports from the W.K. Kellogg 

Foundation on women’s child bearing 

experiences and the National Women’s 

Law Center on accommodating pregnant 

workers show that the costs associated 

with accommodating pregnant workers 

are minimal and generally involve 

schedule adjustments or modified work 

duties.103 One study found that when 

faced with a pregnancy-related need for 

accommodation, between 62 percent 

and 74 percent of pregnant women 

asked their employer to address their 

needs. The study further found that 

between 87 percent and 95 percent of 

the pregnant women who requested an 

adjustment to their work schedule or job 

duties worked for employers that 

attempted to address those requests. The 

study specifically found that 63 percent 

of pregnant women who needed a 

change in duties such as less lifting or 

more sitting asked their employers to 

address that need, and 91 percent of 

those women worked for employers that 

attempted to address their needs.104

Based on this study, OFCCP believes 

that most employers do provide some 

form of accommodation when 

requested. 

To determine the cost of 

accommodation or light duty imposed 

by the proposed rule, OFCCP 

considered the types of light duty or 

accommodations needed. Generally, 

providing light duty or accommodation 

for pregnancy involves adjusting work 

schedules or allowing more frequent 

breaks. OFCCP believes that these 

accommodations would incur little to 

no additional cost. 

Additional accommodations may 

involve either modifications to work 

environments (providing a stool for 

sitting rather than standing) or to job 

duties—for example, lifting restrictions. 

In making such an accommodation, 

Federal contractors have discretion 

regarding how they would make such 

modifications. For example, a contractor 

may provide an employee with an 

existing stool, or a contractor may have 

other employees assist when heavy 

lifting is required. To determine the cost 

of such accommodations, OFCCP 

referred to the Job Accommodation 

Network (JAN). JAN reports that the 

average cost of accommodation is 

$500.105

As stated above, 63 percent of 

pregnant women who needed a change 

in duties related to less lifting or more 


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106OFCCP arrived at 79,250 by multiplying the 

214,920 women by 37 percent. 

107State laws covering employers with one 

employee: Alaska, Colorado, Hawaii, Maine, 

Michigan, Minnesota, Montana, New Jersey, North 

Dakota, Oklahoma, Oregon, South Dakota, Vermont, 

and Wisconsin; state laws covering employers with 

two employees: Wyoming; state laws covering 

employers with three employees: Connecticut; state 

laws covering employers with four employees: 

Delaware, Iowa, Kansas, New Mexico, New York, 

Ohio, Pennsylvania, and Rhode Island; state laws 

covering employers with five employees: California 

and Idaho; state laws covering employers with six 

employees: Indiana, Massachusetts, Missouri, New 

Hampshire, and Virginia; state laws covering 

employers with eight or more employees: Kentucky, 

Tennessee, and Washington; state laws covering 

employers with nine or more employees: Arkansas; 

state laws covering employers with 12 or more 

employees: West Virginia. In addition, the District 

of Columbia and Puerto Rico’s laws cover 

employers with one employee. 

108See note 99, supra. 

109See note 99, supra. 

110Another section of the FCCM also covers sexbased stereotyping: 

Sex-Based Stereotyping and Caregiver 

Discrimination. Differential treatment for an 

employment-related purpose based on sex-based 

stereotypes, including those related to actual or 

perceived caregiving responsibilities, is a violation 

of Title VII of the Civil Rights Act of 1964. For 

example, it is prohibited to deny advancement 

opportunities to similarly situated mothers that are 

provided to fathers or women without children, 

based on stereotypes about mothers in the 

workplace; it is also prohibited to deny to fathers 

access to family-friendly policies like workplace 

flexibility that employers provide to mothers, based 

on stereotypes about fathers’ roles in care giving. 

FCCM, ch. 2, section 2H01(e). 

sitting requested such an 

accommodation from their employers. 

Thus, OFCCP estimates that 135,400 

women (214,920 × 0.63) would have 

made such a request, and 91 percent, or 

123,214 of those requests (135,400 × 

0.91) would have been addressed. In 

addition, OFCCP assumes that of the 37 

percent (79,520 women) who did not 

make such a request, had they made the 

request, the needs of 91 percent of them 

(72,364 women) would also have been 

addressed.106 Thus, this proposed rule 

would require covered contractors to 

accommodate the nine percent of 

women whose needs were not 

addressed. Therefore, OFCCP estimates 

that the cost, accounting for those 

pregnant women who made requests 

and those additional women who could 

make requests, would be $9,671,000 

((135,400 ¥ 123,214) + (79,520 ¥ 

72,364) × $500). Accounting for 

women’s requests that could be made 

but may not be made is likely an 

overestimation of the cost of this 

accommodation. In addition, OFCCP 

believes that this cost estimate may also 

be an overestimate because contractors 

with 15 or more employees are covered 

by a similar requirement found in title 

VII and 36 states have requirements that 

apply to employers with fewer than 15 

employees.107 Although OFCCP seeks 

comments on all aspects of its 

calculation of burden and costs, the 

agency specifically seeks comments on 

the burden associated with providing 

accommodations to pregnant workers. 

The NPRM proposes replacing the 

current § 60–20.6 (Affirmative action) 

with a new section titled ‘‘Other fringe 

benefits.’’ The current section on 

affirmative action is unnecessary 

because the requirements related to 

affirmative action programs are set forth 

in parts 60–2 and 60–4. In the new § 60– 

20.6, the NPRM proposes to clarify the 

existing requirement of 

nondiscrimination in fringe benefits, 

specifically with regard to application of 

that principle to contributions to and 

distributions from pension and 

retirement funds. The proposed section 

reflects the current state of title VII law 

with regard to pension funds, imposing 

no additional burden on contractors 

covered both by Executive Order 11246, 

as amended, and by title VII (which, 

generally, covers employers of 15 or 

more employees) or by state or local 

laws that similarly prohibit sex 

discrimination (many of which have 

lower coverage thresholds 108). As to the 

remaining contractors—those that have 

fewer than 15 employees as defined by 

title VII, are not covered by state or local 

laws, and have at least $10,000 in 

Federal contracts or subcontracts—as 

noted in the discussion of this 

requirement elsewhere in the preamble, 

OFCCP’s publicly available FCCM has 

put them on notice that OFCCP follows 

current law with regard to providing 

equal benefits and making equal 

contributions to pensions funds for men 

and women. Thus, as an existing 

requirement, this does not generate any 

new benefits (beyond reduced 

confusion) or additional burden. 

The NPRM proposes a new section, 

§ 60–20.7, titled ‘‘Employment decisions 

made on the basis of sex-based 

stereotypes.’’ This section explains the 

prohibition against making employment 

decisions on the basis of sex-based 

stereotypes, which the Supreme Court 

recognized in 1989 as a form of sex 

discrimination under title VII. This 

section clarifies that such 

discrimination includes disparate 

treatment based on nonconformity to 

stereotypical expectations about gender 

identity, gender expression, and sexual 

orientation and stereotyping based on 

specific expectations about the proper 

roles of women and men regarding 

caregiving. The proposed section 

reflects the current state of title VII law 

with regard to sex-based stereotyping, 

imposing no additional burden on 

contractors covered both by Executive 

Order 11246, as amended, and by title 

VII or by state or local laws that 

similarly prohibit sex discrimination, 

many of which have lower coverage 

thresholds.109 As to the remaining 

contractors—those that have fewer than 

15 employees as defined by title VII, are 

not covered by state or local laws, and 

have at least $10,000 in Federal 

contracts or subcontracts—as noted in 

the discussion of this requirement 

elsewhere in the preamble, OFCCP’s 

publicly available FCCM has put them 

on notice that OFCCP follows current 

law with regard to sex-based 

stereotyping. The FCCM provides that: 

COs must examine whether contractor 

policies make prohibited distinctions in 

conditions of employment based on sex, 

including the basis of pregnancy, childbirth 

or related medical conditions, or on the basis 

of sex-based stereotypes, including those 

related to actual or perceived caregiver 

responsibilities. Contractors must not make 

employment decisions based on stereotypes 

about how males and females are ‘‘supposed’’ 

to look or act. Such employment decisions 

are a form of sex discrimination prohibited 

by Executive Order 11246, as amended. 

FCCM, ch. 2, section 2H00(a).110

Thus, for these contractors as well, the 

proposed section imposes no additional 

burden and generates no new benefits 

for their employees. 

The NPRM proposes a new section, 

§ 60–20.8, titled ‘‘Harassment and 

hostile work environments.’’ This 

section explains the circumstances 

under which sex-based harassment and 

hostile work environments violate the 

Executive Order, reflecting principles 

established in Supreme Court title VII 

decisions beginning in 1986. This 

section clarifies that such 

discrimination includes ‘‘sexual 

harassment (including harassment based 

on gender identity or expression), 

harassment based on pregnancy, 

childbirth, or related medical 

conditions,’’ and sex-based harassment 

that is not sexual in nature but that is 

because of sex or where one sex is 

targeted for the harassment. The 

proposed section describes best 

practices that contractors may follow to 

reduce and eliminate harassment and 

hostile work environments but 

explicitly states that such practices are 

‘‘not required by this part.’’ 

The proposed section reflects the 

current state of title VII law with regard 

to sex-based harassment and hostile 

work environments, imposing no 

additional burden on contractors 

covered both by Executive Order 11246, 

as amended, and by title VII or by state 

or local laws that similarly prohibit sex 


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111See note 99, supra. 

discrimination (many of which have 

lower coverage thresholds 111). As to the 

remaining contractors—those that have 

fewer than 15 employees as defined by 

title VII, are not covered by state or local 

laws, and have at least $10,000 in 

Federal contracts or subcontracts—as 

noted in the discussion of this 

requirement elsewhere in the preamble, 

OFCCP’s publicly available FCCM has 

put them on notice that OFCCP follows 

current law with regard to sex-based 

harassment and hostile work 

environments. The FCCM provides that: 

Although not specifically mentioned in the 

Guidelines, sexual harassment, as well as 

harassment based on race, color, national 

origin or religion is a violation of the 

nondiscrimination provisions of EO 11246. 

During the onsite review, COs must be alert 

for any indications of such harassment. 

OFCCP follows Title VII principles when 

determining whether sexual harassment has 

occurred. 

FCCM, Chapter 2, Section 2H01(d). 

Thus, for these contractors as well, the 

proposed section imposes no additional 

burden and generates no new benefits 

for their employees. 

The total first year cost of the 

regulation is estimated at $35,461,000 or 

$71 per contractor company. Below, in 

Table 1, is a summary of the hours and 

costs: 

TABLE 1—CONTRACTOR PROPOSED NEW REQUIREMENTS

Section Burden hours Costs 

Estimated One-Time Burden: 

Regulatory Familiarization ................................................................................................................................ 500,000 $25,790,000 

Total One-Time Burden .................................................................................................................................... 500,000 25,790,000 

Estimated Recurring Burden: 

41 CFR 60–20.5: Light duty or accommodation .............................................................................................. 0 9,671,000 

Total Annual Recurring Burden ........................................................................................................................ 0 9,671,000 

Total Burden .............................................................................................................................................. 500,000 35,461,000 

Summary of Transfer and Benefits 

If the proposed rule decreases sexbased compensation discrimination, 

that effect may generate a transfer of 

value to employees from employers (if 

additional wages are paid out of profits) 

or taxpayers (if contractor fees increase 

to pay higher wages to employees). 

Contractors may also transfer any costs 

of providing pregnancy 

accommodations to employees, by not 

increasing wages or reducing other 

benefits (to the extent not prohibited by 

the Davis-Bacon and Service Contract 

Acts). However, OFCCP does not 

currently have sufficient information to 

reliably estimate the potential transfer 

payments resulting from this proposed 

rule, and it requests public comment on 

data and methods to do so. 

Analysis of Rulemaking Alternatives 

OFCCP considered a range of 

regulatory alternatives that would 

enable the agency to encourage 

voluntary compliance and effectively 

enforce the prohibition against sex 

discrimination. In addition to the 

approach proposed in the NPRM, 

OFCCP considered two alternative 

approaches. First, OFCCP considered 

maintaining the current guidelines with 

no changes. Second, OFCCP considered 

rescinding the existing guidelines 

without proposing new regulations. 

Each of these alternatives is discussed 

in further detail below. OFCCP seeks 

comments from stakeholders on the 

proposal in the NPRM, as well as each 

alternative, including OFCCP’s 

assessment of the costs and benefits. 

Alternative 1: Maintaining the Current 

Guidelines 

OFCCP considered maintaining the 

Sex Discrimination Guidelines with no 

changes. This alternative would impose 

no new costs and achieve no new 

benefits. However, as discussed above, 

the existing guidelines are extremely 

outdated and therefore do not provide 

sufficient or even accurate guidance to 

contractors regarding their 

nondiscrimination obligations. Thus, 

retaining the existing guidelines would 

have the negative effect of continuing to 

impose compliance costs on compliant 

contractors. It is true that, as discussed 

elsewhere in this preamble, the FCCM 

provides updated guidance in the areas 

of maternity leave, sex-based 

stereotyping, sexual harassment, and 

pensions. But even in these areas, the 

provisions of the Guidelines conflict 

with the FCCM and thus potentially sow 

confusion among the contractor 

community. 

As mentioned above, current § 60– 

20.3(c) provides that a contractor will 

not be considered to have violated the 

Executive Order if its contributions for 

fringe benefits are the same for men and 

women or if the resulting benefits are 

equal. But in 1978, the Supreme Court 

held that under title VII, an employer 

must provide equal retirement benefits 

to men and women even if the 

contributions necessary to do so cost 

more for one sex than the other. While 

the FCCM recognizes this Supreme 

Court development, it is possible that 

contractors, especially new contractors 

confronted for the first time with the 

conflict between the outdated 

provisions in the Guidelines, on the one 

hand, and current title VII principles 

and the FCCM, on the other, may still 

be incurring legal fees or the cost of 

human resource professionals’ time to 

reconcile this conflict. Moreover, 

maintaining the Sex Discrimination 

Guidelines with no changes would be 

inconsistent with Section 6 of Executive 

Order 13563, which requires agencies to 

engage in retrospective analyses of 

‘‘rules that may be outmoded, 

ineffective, insufficient, or excessively 

burdensome, and to modify, streamline, 

expand, or repeal them in accordance 

with what has been learned.’’ 

Alternative 2: Rescinding but Not 

Replacing the Current Guidelines 

OFCCP considered rescinding the Sex 

Discrimination Guidelines but not 

proposing regulations to replace them. 

This alternative would have the benefit 

of removing from the Code of Federal 

Regulations provisions that are 

inconsistent with current title VII 

principles, such as the fringe benefit 

provision discussed above. Contractors 

would no longer need to expend 

resources to reconcile conflicts between 

the Sex Discrimination Guidelines and 

the current requirements of title VII law. 

However, this alternative would create a 

vacuum of guidance for contractors, 

requiring them to expend resources for 

a different reason—for example, to pay 

for lawyers’ or human resource 


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112See 5 U.S.C. 603. 

113 Id. 

114U.S. Small Business Administration, Firm Size 

Data, Statistics of U.S. Businesses, available at 

http://www.sba.gov/advocacy/849/12162#susb (last 

visited June 9, 2014). 

115U.S. Census Bureau, Statistics of U.S. 

Businesses: Latest SUSB Annual Data, available at 

http://www.census.gov/econ/susb/ (last accessed 

June 9, 2014). 

116Agriculture, Forestry, Fishing, and Hunting 

Industry (North American Industry Classification 

System (NAICS) 11, Mining NAICS 21, Utilities 

NAICS 22, Construction NAICS 23, Manufacturing, 

NAICS 31–33, Wholesale Trade NAICS 42, Retail 

Trade NAICS 44–45, Transportation and 

Warehousing NAICS 48–49, Information NAICS 51, 

Finance and Insurance NAICS 52, Real Estate and 

Rental and Leasing NAICS 53, Professional, 

Scientific, and Technical Services NAICS 54, 

Management of Companies and Enterprises NAICS 

55, Administrative and Support and Waste 

Management and Remediation Services NAICS 56, 

Educational Services NAICS 61, Healthcare and 

Social Assistance NAICS 62, Arts, Entertainment, 

and Recreation NAICS 71, Accommodation and 

Food Services NAICS 72, Other Services NAICS 81. 

professionals’ time to provide guidance 

regarding their nondiscrimination 

obligations. That ad hoc approach 

would reduce consistency across 

contractors’ practices and could 

increase the incidence of unintended 

noncompliance, potentially harming job 

applicants and employees. 

Regulatory Flexibility Act and Executive 

Order 13272 (Consideration of Small 

Entities) 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 et seq., establishes 

‘‘as a principle of regulatory issuance 

that agencies shall endeavor, consistent 

with the objectives of the rule and 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the business organizations and 

governmental jurisdictions subject to 

regulation.’’ Public Law 96–354. To 

achieve that principle, the Act requires 

agencies promulgating proposed rules to 

prepare an initial regulatory flexibility 

analysis (IRFA) and to develop 

alternatives whenever possible, when 

drafting regulations that will have a 

significant impact on a substantial 

number of small entities. The Act 

requires the consideration for the 

impact of a proposed regulation on a 

wide-range of small entities including 

small businesses, not-for-profit 

organizations, and small governmental 

jurisdictions. 

Agencies must perform a review to 

determine whether a proposal or final 

rule would have a significant economic 

impact on a substantial number of small 

entities.112 If the determination is that it 

would, then the agency must prepare a 

regulatory flexibility analysis as 

described in the RFA.113

However, if an agency determines that 

a proposed or final rule is not expected 

to have a significant economic impact 

on a substantial number of small 

entities, section 605(b) of the RFA 

provides that the head of the agency 

may so certify and a regulatory 

flexibility analysis is not required. See 

5 U.S.C. 605. The certification must 

include a statement providing the 

factual basis for this determination and 

the reasoning should be clear. 

OFCCP is publishing this initial 

regulatory flexibility analysis to aid 

stakeholders in understanding the small 

entity impacts of the proposed rule and 

to obtain additional information on the 

small entity impacts. OFCCP invites 

interested persons to submit comments 

on the following estimates, including 

the number of small entities affected by 

the NPRM, the compliance cost 

estimates, and whether alternatives exist 

that will reduce burden on small 

entities while still remaining consistent 

with the objective of the proposed rule. 

Why OFCCP is Considering Action: 

OFCCP is publishing this proposed rule 

in order to align its existing regulations 

related to sex discrimination with 

current law and address their 

application to current workplace 

practices and issues. 

Objectives of and Legal Basis for Rule: 

This proposed rule will provide 

guidance on how to comply with the 

nondiscrimination requirements of 

Executive Order 11246, as amended. 

Compliance Requirements of the 

Proposed Rule, Including Reporting and 

Recordkeeping: As explained in this 

proposed rule, the Sex Discrimination 

Guidelines at 41 CFR part 60–20 set 

forth interpretations and guidelines for 

implementing Executive Order 11246’s 

nondiscrimination and affirmative 

action requirements related to sex. The 

guidelines have not been updated in 

more than 40 years. This NPRM is 

intended to update the requirements to 

reflect current statutory and case law. 

The requirements in Executive Order 

11246 generally apply to any business 

or organization that (1) holds a single 

Federal contract, subcontract, or 

federally assisted construction contract 

in excess of $10,000; (2) has Federal 

contracts or subcontracts that, 

combined, total in excess of $10,000 in 

any 12-month period; or (3) holds 

Government bills of lading, serves as a 

depository of Federal funds, or is an 

issuing and paying agency for U.S. 

savings bonds and notes in any amount. 

This NPRM contains several 

provisions that could be considered to 

impose compliance requirements on 

contractors. Generally, contractors are 

prohibited from making employment 

decisions based upon gender, including 

decisions regarding compensation and 

fringe benefits. The NPRM updates the 

existing regulations to address, inter 

alia, discrimination on the basis of 

pregnancy, harassment, and 

employment decisions made on the 

basis of sex-based stereotypes. These 

revisions and updates are intended to 

bring OFCCP’s regulations at part 60–20 

in line with the current standards of 

title VII and thus reduce potential 

confusion among contractors, applicants 

and employees regarding which 

requirement applies to a particular 

situation. 

All small entities subject to Executive 

Order 11246 would be required to 

comply with all of the provisions of the 

NPRM. Such compliance requirements 

are more fully described above in other 

portions of this preamble. The following 

section analyzes the cost of complying 

with proposed requirements in the 

NPRM. 

Calculating Impact of the Proposed 

Rule on Small Business Firms: OFCCP 

must determine the compliance cost of 

this proposed rule on small contractor 

firms, and whether these costs will be 

significant for a substantial number of 

small contractor firms (i.e., small 

business firms that enter into contracts 

with the Federal Government). If the 

estimated compliance costs for affected 

small contractor firms are less than 

three percent of small contractor firms’ 

revenues, OFCCP considers it 

appropriate to conclude that this 

proposed rule will not have a significant 

economic impact on the small 

contractor firms covered by Executive 

Order 11246. While OFCCP has chosen 

three percent as our significance 

criterion, using this benchmark as an 

indicator of significant impact may 

overstate the significance of such an 

impact, since the costs associated with 

prohibiting sex discrimination against 

employees and job applicants are 

expected to be mitigated to some degree 

by the benefits of the proposed rule. The 

benefits are discussed more fully in the 

preamble of this NPRM. 

The data sources used in the analysis 

of small business impact are the Small 

Business Administration’s (SBA) Table 

of Small Business Size Standards,114 the 

Current Population Survey (CPS), and 

the U.S. Census Bureau’s Statistics of 

U.S. Businesses (SUSB).115 Since 

Federal contractors are not limited to 

specific industries, OFCCP assessed the 

impact of this NPRM across the 19 

industrial classifications.116 Because 

data limitations do not allow OFCCP to 

determine which of the small firms 

within these industries are Federal 

contractors, OFCCP assumes that these 


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5266 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 

117Unlike title VII, Executive Order 11246 

contains the additional requirement that Federal 

contractors engage in affirmative action to ensure 

that applicants are employed, and that employees 

are treated during employment, without regard to 

their sex, as well as their race, color, religion, 

sexual orientation, gender identity, or national 

origin. 

small firms are not significantly 

different from the small Federal 

contractors that will be directly affected 

by the proposed rule. 

OFCCP used the following steps to 

estimate the cost of the proposed rule 

per small contractor firm as measured 

by a percentage of the total annual 

receipts. First, OFCCP used Census 

SUSB data that disaggregates industry 

information by firm size in order to 

perform a robust analysis of the impact 

on small contractor firms. OFCCP 

applied the SBA small business size 

standards to the SUSB data to determine 

the number of small firms in the 

affected industries. Then OFCCP used 

receipts data from the SUSB to calculate 

the cost per firm as a percent of total 

receipts by dividing the estimated 

annual cost per firm by the average 

annual receipts per firm. This 

methodology was applied to each of the 

industries, and the results by industry 

are presented in the summary tables 

below (see Tables 2–20). 

In sum, the increased cost of 

compliance resulting from the proposed 

rule is de minimis relative to revenue at 

small contractor firms, no matter their 

size. All of the industries had an annual 

cost per firm as a percent of receipts of 

far less than three percent. For instance, 

the manufacturing industry cost is 

estimated to range from 0.00 percent for 

firms that have average annual receipts 

of approximately $985 million to 0.02 

percent for firms that have average 

annual receipts of under $500,000. 

Management of companies and 

enterprises is the industry with the 

highest relative costs, with a range of 

0.00 percent for firms that have average 

annual receipts of approximately $2 

million to 0.30 percent for firms that 

have average annual receipts of under 

$24,000. Therefore, in no instance is the 

effect of the NPRM greater than three 

percent of total receipts, and in fact does 

not exceed 0.3 percent. 

Although OFCCP estimates the 

compliance costs are less than three 

percent of the average revenue per small 

contractor firm for each of the 19 

industries, OFCCP seeks data and 

feedback from small firms on the factors 

and assumptions used in this analysis, 

such as the data sources, small business 

industries, NAICS codes and size 

standards, and the annual costs per firm 

as a percent of receipts. OFCCP seeks 

information about which data sources 

should be used to estimate the number 

of Federal small subcontractors. OFCCP 

also seeks information about the 

potential compliance cost estimates, 

such as any differences in compliance 

costs for small businesses as compared 

to larger businesses and any compliance 

costs that may not have been included 

in this analysis. 

Estimating the Number of Small 

Businesses Affected by the Rulemaking: 

OFCCP now sets forth its estimate of the 

number of small contractor firms 

actually affected by the proposed rule. 

This information is not readily 

available. The best source for the 

number of small contractor firms that 

are affected by this proposed rule is 

GSA’s SAM. OFCCP used SAM data to 

estimate the number of affected small 

contractor firms since SAM data allow 

us to directly estimate the number of 

small contractor firms. Federal 

contractor status cannot be discerned 

from the SBA firm size data. It can only 

be used to estimate the number of small 

firms, not the number of small 

contractor firms. OFCCP used the SBA 

data to estimate the impact of the 

proposed regulation on a ‘‘typical’’ or 

‘‘average’’ small firm in each of the 19 

industries. OFCCP then assumed that a 

typical small firm is similar to a small 

contractor firm. OFCCP believes that 

this NPRM will not have a significant 

economic effect on a substantial number 

of small businesses. 

Based on the most current SAM data 

available, if OFCCP defined ‘‘small’’ as 

fewer than 500 employees, then there 

are 328,552 small contractor firms. If 

OFCCP defined ‘‘small’’ as firms with 

less than $35.5 million in revenues, 

then there are 315,902 small contractor 

firms. Thus, OFCCP established a range 

of 315,902 to 328,552 as the total 

number of small contractor firms. Of 

course, not all of these contractor firms 

will be impacted by the proposed rule; 

only those contractor firms that have 

active contracts of more than $10,000 

and are not otherwise covered by title 

VII or similar state or local antidiscrimination laws will be impacted. 

Thus this range is an overestimate of the 

number of firms affected by the 

proposed rule. As the proposed 

regulation applies to contractors 

covered by Executive Order 11246, 

OFCCP estimates that the range of small 

firms impacted is from 315,902 to 

328,552. 

Relevant Federal Rules Duplicating, 

Overlapping, or Conflicting with the 

Rule: As discussed in the preamble 

above, OFCCP recognizes that title VII, 

like the Executive Order, prohibits 

employers from discriminating against 

employees and job applicants on the 

basis of sex. Thus some overlap exists 

between the two laws.117 In fact, OFCCP 

is proposing in this NPRM to eliminate 

conflict with title VII and current case 

law. 

Alternatives to the Proposed Rule: As 

described above, OFCCP considered two 

alternatives. These alternatives would 

not be an effective or efficient way to 

enforce Executive Order 11246, as 

amended. 

Differing Compliance and Reporting 

Requirements for Small Entities: This 

NPRM provides for no differing 

compliance requirements for small 

entities. In its implementation of 

Executive Order 11246, as amended, 

OFCCP does provide different reporting 

requirements for small entities—for 

example, contractor companies with 

fewer than 50 employees are not 

required to submit an EEO–1 Report or 

develop affirmative action programs. 

See 41 CFR 1.7, 1.40, and 2.1. In 

addition, the record retention period for 

smaller contractors is reduced. See 41 

CFR 60–1.12. 

Clarification, Consolidation, and 

Simplification of Compliance and 

Reporting Requirements for Small 

Entities: This NPRM was drafted to state 

clearly the compliance requirements for 

all contractors subject to Executive 

Order 11246, as amended. The proposed 

rule does not contain any new reporting 

or recordkeeping requirements. The 

compliance provisions apply generally 

to all businesses covered by Executive 

Order 11246, as amended; no rational 

basis exists for creating an exemption 

from compliance requirements for small 

businesses. OFCCP makes available a 

variety of resources to employers for 

understanding their obligations and 

achieving compliance. 

Use of Performance Rather Than 

Design Standards: This NPRM was 

written to provide clear guidelines to 

ensure compliance with the Executive 

Order requirements. Under the 

proposed rule, contractors may achieve 

compliance through a variety of means. 

OFCCP makes available a variety of 

resources to contractors for 

understanding their obligations and 

achieving compliance. 

Exemption from Coverage of the Rule 

for Small Entities: Executive Order 

11246, as amended, establishes its own 

exemption requirements; therefore, 

OFCCP has no authority to exempt 

small businesses from the requirements 

of the Executive Order. 


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Regulatory Flexibility Act and Executive 

Order 13272 (Consideration of Small 

Entities) 

BILLING CODE 4510–CM–P 


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Table 2: Cost per small firm in the agriculture, forestry, fishing, and hunting industry. 

Agriculture, Forestry, Fishing, and Hunting Tndust 

Fitms with sales 'n.:cciphkrcvcnuc bdo,.-v 

$100,000 

Firn1s with sall:!sd·e~eipts/revljnUt;; 

SHlO.OOO to $499.999 

Small Business Size Standard: million ~ $275 million 

Number of Total Numbt'l' 

Firms 

5,1186 

8.939 

Average 

Number of Annual Cost 

per Finn 

$71 

$71 

$71 

$71 

Annual Rer<'ipts 

$247.056,()(Kl 

$2,231 ,355,00{) 

$2620,344,000 

S4.975.U7KOOO 

derived by 

of $!(J(l,OOO to $499,999, the annml oost per lim> as a percent of receipts ((Ul:l percent) 

ts )i:,'f fum ($249.620). 

Table 3: Cost per small firm in the mining industry. 

Mining Industry SmaH Bm:iness Size Stmdard: 500 ~mployecs 

A·,,.erage .. \vera~'t:' Annual Cost 

Numher of Total Numb€'r ~umlwr of Annual Cu~t Firm as 

Finns of Employees E:mplnyt'<$ per pet Firm Annual Receipts Receipts per of 

Firm1 Firm 2 

Re.,.,in!s 3 

Finns \V1th 0··4 employees 11.223 !7.874 1.6 $71 $6.809.517.000 $6!16,747 O.Ol~h 

Finns \Vith 5~9 employees 3.186 21.314 6.7 $71 S6.30UHUlOO SL\178.911 \U)(l% 

2,451 33344 13.6 $71 ~'9.092,457,000 '' 7!N r,<n 0.00"·<> 

2.775 !117.447 38.7 S71 $;12.035.288,000 $11,544,248 0.00"" 

690 102,299 148.3 $71 $38,463.691.1000 $55,744.478 o.tlO"o 

1 In the case of mining tlrms with 0-4 emp!oy..:s. the av<rago number of employees per tirm (!.6) was derived by di:viding the total numbor of employees (17.874) by 

the number of lirms (11.223 ). 

01n the with \l-4 employees. the avemge receipts per tinn {S606.747) was dorived hy dit·iding the tntalannru•l rocei]>ts (S<i.809.517,001l) by the 

nnmbt.-r of tirms 

"'In the case of mining firm;, \Vith '"'"l '"cT t>nn a percent of receipt' (0.01 percent) was derived by dividing the annnal cost per tirm {$7!) 

by the awrnge receipts per fim1 ($606, 7~7). 
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Table 4: Cost per small Firm in the utilities industry. 

Utilities Industry 

Small Business Size Standard: 250 · LOOO employe<s 

_Ave!·ag:r J\verage Annual Cost 

Number of Total Numlwr Annual Cost ~'inn as 

Firms of EmployCt,"S I Em p~~ye<:s per per Firm Annual Ret:"eipt:s per of 

Firm Ret't'ipts 

Fi11:ns with ().4 ~'mployees :1,212 6.181 L9 $71 $7,238.51.9.000 $2.253,5&6 

Firms 'with 5*9 G-mployees Ul20 6.546 6A $71 $4.373.888.000 $4,288,!25 0. 

Firms with 10·19cmployocs 513 6.722 BJ $7] $5.65725 !.000 $1 Ul27.7SO O.Oil"· 

Firms with 20~99 em-ployees 870 3K602 44A $71 s::nsl3.924,0M $31,625,200 0.00° 

Films·with 100-499 employees 309 52,294 169,2 $71 $53.091,123,000 $!11.&15.932 O.OO~ol 

Fitms \Vith -e:mp1oye-t.--s 1 199 512,412 2,574.9 $71 $475.894,489.000 $2.391.429.593 0.00" 

1 'flte small husines~> size standard fOr !'levera1 suhsccton; within t11:e utilities industry is 750 or ] ,000 en1:ployoos: bov-vev.er. data are not disaggregated for ilrms \Vith 

more than 500 etnnlove"", 

Table 5: Cost per small firm in the construction industry. 

Constmction Industry Small Business Size Standard: $15 millkm $36.5 million 

Average Average AnnuaiCnsl 

!'\umb<!rof Total Numbe~' Number of Annual Cost per Firm as 

F'irms of Employees : Emp:??'«'S per per Firm Annual Receipts Re<-,ipts pet Percent of 

Firm Firm .Rereiots 

Firms \Vith salt.'S"'rcccipts/rwcnue helm.Y 151,986 N·i\ N/A S71 $7.636. 718.0()() $50.246 (), 14"<> $1()(1,(1(10 

Firms \\ilth ,.,,. .. ..,,~,, ;of 316,475 776,8116 2. S7l $8L 1 W,428.0!Xl $256,293 lHH"•i: SlOlUlOO to $499.999. 

Finn~ with :of 124,214 64282~ 

m~ $708,687 

~ S500Jl<l0 lo $999,999 

Finns with "Y s1revenue of 110546 1,049.670 S7l $173,054.6 $!.565.454 S!.OOO.OOO lo S2.49'J.999 

Firms \Vitb sales/J'tcdptslrevenue of 47,962 864,70! $71 $3.497,740 

~ S2,500,000 to $4, <)'19,999 

Finns \Vith salc.:n·cceipt'll-ir~"vcnue nf 16.992 492,370 29. $71 $!02.502.053,00\) $6,032.371 (). $5.000,000 to $7.499.999 

Finns \Vith saii!BiNt--cipts/re\'l;;nue of 7.801 308.512 39.5 $71 $66.977,650,000 $8.585,777 0,00% $7,500,0()0,$9,999, 999 

Firm.s \VIth salcs··ft."Cdpts/rt,"\'Cnuc of 8,259 427.159 ;t· S71 $99,174,146,000 $!2.008,009 (l,()(l"t SlO,OOO,OOO!o ~· 1 ooo ooo 

1:mns witl1 salc:s/reccipts.irevenuc of 4,354 289A4l 66.5 $71 t7:URUlR9. 000 $16.%8.555 lUlO"<> $15,000.000 to~'" ooo noo 

F'inns \Yith salcs1rccciptsircvcnuc of 209.081 80.1 S71 :,754.00{) S2L803A29 tHlO"b $20,()(10,00\J to "~·1 000 oclO 

Fim1s \V.ith sale:si'rcccipt_"','rcvermc of 

~~~·: nru1 rmn io <'1D rmo 0110 1,621 150.754 93.{ $71 $43,l!St720,00() ~~~ mn ~o O,OO?o 

Finns with salcsncccipts<"rm'cnuc of 1,171 121,928 104, $71 $36.84s,snooo $31,467,837 0.00% $30,000,\lOO to $34.999.999 

F-inns with salt:s/n.::ceipts,'rcvenue of 83! 94,903 114.2 $71 $30.307,198,000 1.756 O.IJll% $35,000.0001<1 $39.999,999 

IN/A.~ not available, not disclosed 
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Table 6: Cost per small firm in the manufacturing industry. 

Firms with 0-4 omployx:es 

Finns. \Vith 5-9 employ-ees 

Finns wi!h 1 0·19 employees 

Finns with 2D~99 ~mployce:s 

Firms witl1 500+ employcos1 

~urn bet· of 

Firms 

44,939 

55,603 

Annual Receipts 

Averag~~ 

Receipts por 

:Firm 

Annual Cost 

per Firm as 

Porcentof 

Ri.'c<'i ts 

TIH;: small business size standard fhr many suhscctors '''ithin the manufacturing industry i-; 750, 1 ,000, or L500 employees~ hmvevet\ data ate not {tisaggregated tOr 

firms with more than 500 em 

Table 7: Cost per small firm in the wholesale trade industry. 

Firms with 5-9 empln)X:OS 

Firms with JO. !9 emj>loyees 

Finns with 

Number of 

Firms 

!90,153 

~9354 

Wholesale Trade Industry 

Small Business Size Standard: 100 cmplovccs 

Total Number ~~:~;;:~:,. of Employ<*" FJnployees l"'t 

Firm 

325Al2 L7 

377,841 6.6 

525,2!6 D.3 

1.365,914 37.1 

.t\unual Cost 

per Firm 

$71 

$7! 

$71 

$71 

~JQ7 '){;7 'II? WI 

't'MQ ~A') ')()ry ili\1 

$325,24.1,478.001 

$8Q9A4H43,00! 

Average 

Rect>ipts per 

Firtn 

SL56B07 

$4,355,233 

$8,264.560 

S24A52,705 

,\nnnal Cost 

Firm as 

0.00% 

O.Otl0·o 

o.oo~. 
5270 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 


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Table 8: Cost per small firm in the retail trade industry. 

Retail Trade Industry Small Busin~ss Size Standard: $7,5 million~ $)8,5 million 

Avcraae 

a! Hecoipts l R=~:~:g;er Number of Total :"orumber Number of Annual Co,,t 

li'irnts ofEmployet'S Employet•s per per Firm Annu 

Finn 

$100,000 91!,659 

~ N/A S7l $5.008,702Jl0t) $50.768 

Firms ,,-ith sales/i:cceipt.s:'rev\::mre of 25!,71)5 727585 2,S $7! $67,380.242.(){~) 7.(i95 $100.000 to $499.999 

I Firms with sales,-· receipts/revenue of 

~lo$'99').999 122.575 634.006 5.2 $71 $87.491. 736.()(){) $7!3.781 

Firms with "'''"'" '"" of 120.985 }.()!9.672 R4 $71 SEXJ,373,34UlOO $1.573,528 $!.000,00(! to $2,499.\l<:J<) 

Firms -\,'lih ;:..u~;;~" oof 55)634 774,581 13.9 $71 $193,186,239.000 $3,472A49 1!>2.500.000 to $4,999,999 

Firn1s. with sales/receipts/revenue of !9.594 418.263 21.3 $7l Sll7.22.'t823.UOO $5,982.639 $5.001JJlOO to $7,+99.999 

~;~~~;:;~,_, """ ~ oof 9.5S2 272, 28.5 $71 $80. 790,l4l.ll00 $8,431.449 

Flrms with sa.lc:sin,..'x.:.eipts. 'revenue of 9,824 366, :17.3 $71 $115.236.3 B.OOO $1!. 73().[181 $10,000,000 to $!4.999,999 

Fim1s with salcsireccipts.irevcnuc of 5.3!0 256. 48.4 $71 $86.999,536,(100 $16.384.093 Sl5.000.00tl to ~19909.999 

Finns. \Vlth salesvrecelpts.lrevenue of 3.498 ~ 57.5 $71 ~no&t6SuJoo $20,858,971 l1:1n non non to n• o<m ooo 

Finns with ''"v' oof 2.43& 167.5961 68.7 $71 LOOO S25A25.566 

Finns \Vith s.alcs/recdpts-/revenuc nf 1,835 !44.987 79.0 $71 $55.162.317.00{) $30.\161.208 $30.000.0()0 to $34,999,999 

Finns \Vith sales' receipts/revenue of 1.491 :.lg! 82,( $71 $50.711.404,000 $34,011.673 S35,0l~l.OOO to $39.909,999 

!t-:rA nnt a-vailable, not Uisclo_,,eJ 

Table 9: Cost per small firm in the transportation and warehousing industry. 

of 

of 

not available~ not di14doscd 

Trans ortation and Warehousin Industry Small Business Size Standard: S7.5 million- $3R5 million 

Number of Total :>lumbc1· 

Finns 

Ave-rage 

Numb~r of i\rmmdCost 

pa· Firm Annual Rt•reipts Rt>Ct.>iph pt.•r 

Firm 

40.510 $71 $1,939.749.()( $47.883 

67.987 181.924 $71 s 16.284.066. $239.517 

22.377 151.019 $7! $15.756,895. $704.156 

91.408 

123.966 

988 85.367 

621 68.836 110.8 

429 51.989 12!.2 

3ll 45.274 1·15.6 

235 32~922 !40.1 $25,117396 

Annual Cost 

per Firm ns 

Prreenl of 

Reccjpts 

(l,l4% 

O,O.'l.% 

0.01°'(} 

0Al0°"o 

(J.OO% 

O.OO'?o 

o.oo•. 

0.00110 

(l.()(l"<> 

0Jl06·o 

0.00°\ 

0.00% 

IJ.(lil"o 

Annual Cost 

pt>r Hrm ns 

P{'\rcent of 

Rccei ts 

tl15o 

tlOl~o 

().()()" 

0.00% 
Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5271 


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Table 10: Cost per small firm in the information industry. 

Information Industry Srnall Busin~ss Siz0 Standard; $7.5 minion $38.5 million 

AY<:"rage 

Number of Total Number Number of Annual Cost Annual Rcc~ipts f1'irms of Employee'S Em ploy'"" per pt•r Firm . Firm 

Fifmg \Vith i\lalcsitcoolpt;;/rcvenuc be1o\v 15.960 };fi\ ,,,, $71 $767.642.000 Slllil,tXlO 

Firms with ;of 7,67! ao,336 2.9 $71 $6.876,130.000 SHXl,OOO to S499.'J99 

Firms \Vith ;of 10,3!1 67.954 6.6 S71 $7.260. 927Jl00 S500,000 to $999.999 

Firms with sales/receipts/revenue of 9JW8 !20,49$ n3 S7l $15248.992,000 $1.000.000 to $2,499.999 

Firms with .,1...,\<~Hu.:of 

4.508 Hl0.331 22.3 $71 $15.4723BJl00 S2.500Jli.lll to $4.999,999 

Finns \Yitb :of 1.837 65,61)! 3U $71 $l0,856,89:i.ll(li.l $5,0tll),OOO to $7.49'),999 

F'inns with s-alcs;reccipts,'rc·venuc of !Jll8 46,846 46.0 $71 $8,447,070,000 $7,500,000-$9,999,999 

Firms with sale~Jreccip~/n;venue -of 1,09; 68,()58 62,2 $71 $ 12.3ili.l,328J)(I(! $Hl,lli.lil,OOO to $14,999,999 

IFirn'ls \vith sales/receipts/revenue of 61ll 49,Sl2 82.9 $71 $9,293,544.000 $15,000,000 to $19.999.999 

Fimts '.Vith -salesin;~ro:-ipl•J:irevenut: of 

''"'" """ tw> to ,.,., ""o ooo 389 37,522 %,5 $71 $7,616,666.0ili.l 

Finns \~J'itb sales/rcceipt'i/revenue of 270 3052"3 113.0 $71 $6.512265,000 $25,000.000 tD $29,999.999 

Firms with sah;:s/ret.:;e\pt'Frcvcnue uf 175 25.649 146.6 $71 $4,971.718.000 $.10,\)(~l.OOO to $34,999.999 

Films with ~ales/n;.-ccipt~rrevt:nue of 1'16 21.553 15K5 $71 $4,082.897,{)()0 $.15,000.\XlO to ~3<l <l9'l 900 

IN/A not available, not disclosed 

Table 11: Cost per small firm in the finance and insurance industry. 

Finns with srue~ireceipts/rcvc:nuc hek~VV' 

$100,1)00 

Firms \\·.itll sales,'reccipts!revenue of 

$15.000,000 to $!9,999.999 

Finance and Insurance Industi 

Number of 

Firms 

61.54 

I. 

!, 

685 

515 

41 

Annual \nsf 

222.8:22 

185.783 

ll&,HlO 

90,442 

14K252 $7! 

106.8% $71 

87,611 $71 

65.621 $71 

58,481 $7! 

5!,263 j;7[ 

$25.663.651),000 

$2!.843,640.000 

$!7,478.694.000 

Sl5,619Jl23.000 

Sl4.150.222,0UO 

Av~rag< Annual Cost 

Reeei pts pc1· l''irm us 

llirm of 

Rm•ipts 

S48Jl98 0.15°'() 

$243.433 ().()3'\ 

$704.192 (t01('{1 

1,75( ().(]()"(, 

.19( O.OO~i 

$5.91!1.121 0.00°{) 

$8,297,711 OJI0°b 

$!1.264.037 O.tXl0< 

$15,463.468 0.00?' 

$19.580,118 o.oo• 

$24.119.500 

~ $28,409.817 

$30Jl2Uil1 . 
5272 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 


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Table 12: Cost per small firm in the real estate and rental and leasing industry. 

l,'irms \Vlth salcstrcceipts/n:r•t-"Cnue bctmv 

SlOO,OOO 

Firms \vith sales/receipts/revenue of 

$100.000 to $499,999 

Firms: with salcs/rcccipts."rcvcnut:: of 

$5011.000 to $999.999 

Fim1s ·with of 

SI.OOOJl\lll to $2.499,999 

Finns with ,.,f' 

S2.500.0(X) to $4,999.999 

Firms vvlth salcs::'rcceipts"rt,''Vttme uf 

IS7,'>M O!X\-~1) <)()() <)()() 

Firms \Vith sales:reccipt::;.ire·v't.'1lU.;;: nf 

$10,000,000 to~'" <>tlllOOQ 

Firms w_ith salcs/rccdpt;;/rcvc-nuc of 

S15Jl(){JJ100 to $19.999.999 

Firms w-Ith salcs/rcc-eiptsirc\'cnue of 

$20lHl0,000 to $24.999,999 

:Fim1s with salc~ireccipts/rcvenue of 

$25.000,()0() to ~~() OGO "'"' 

Real Estate and Rental and Leasing Industry Small Business Size Standard; $7.5 million $38.5 million 

Awrage 

"umber of Total Number Number of Annual Cost 

}'inns of F:mployet'S Em p.lo~yt'i!S pc1· pt.•rFinn Annual Receipts 

Firm 

86.219 /;\ N.·;\ $71 $4,165.673.000 

!24.9.1() 290.0-ll 2A $71 ,166,()()() 

39.747 !91.958 4.8 $71 $27.836.936.0()0 

29,7!7 269.366 9. S11 $45,164_417.000 

10,013 !8L600 18.! $7! $33.652."43,00" 

3,288 95.418 29.C S71 $Ill. 

!.553 6~4S:2 40.2 $71 $12, 

1.518 81.675 53.8 $71 $16.329,83(),()()() 

771 48.442 62.8 $71 $li.037,708,0lXl 

464 3!~318 78.3 $71 $1!,012.159,0()0 

365 32555 h'9.2 $71 ,190,000 

Av'i::'ragc 

Receipts per 

Fkm 

$48..<15 

$2HJ46 

$'10().353 

$1,519,818 

<;;; ;(,()()()'i 

$5.714,21!4 

$7,869.442 

$11!.757..164 

$!4.3l6JJ9:l 

$17,267584 

$20.879,97:1 

228 25.638 112.4 

m~ "'"''·"' 

17.743 110.2 $71 l 

l::inns \Y:i1h salesirc.;_ciptslrcYcnue of 

$30~rnl.rnmu>S:;4.~1.999;;~~-J~------~J!----~~;j------~~~-------;~--:;~ 

[N/A, not avai1able~ not disdos(;{d 

Annual Cost 

Firm as 

of 

Re..'<'ints 

0.15% 

().()3~', 

ll"< 

O.OO"o 

().(){)<\ 

0.00"• 

(1.00?-o 

1Hl0°o 

0.00% 

0,()0% 

0.00% 

~ Table 13: Cost per small firm in the professional, scientific, and technical services 

industry. 

Professional, Scientific and Technical Services Industry Small Business Size Standard: $7.5 million-~ $38.5 million 

Avcr.agt:o Average J\unual Cost 

2\\untbcr or Total Number Nmuber of Annual Cost per Firm a.~ 

.Firms of l\mployec>s Emp~~yces per rmr Firm Annual Receipts Receipts per Perc<mt nf 

Firm Firm Recoipts 

Finns with below 207,%7 /A !A $71 $9,%8.674.000 $47,934 0.15~i $IOO,Otl0 

Finns with salesln:c~ipl~J,./t\:,•vcnuc of :139,834 814,116 2.4 $71 $82.241 ,004JJOO $242.003 o.m~. 

SlOIJJl()O to $499.999 

Firms \Vith sales/recciptsJn,"Venue of 102,144 584,47:' $71 !,790,000 $700\,426 ll.tl1" $500,000 to $999.999 

Firms \Yith salcs:/rcccipt~:'rcvcnuc: of 78,52() 870,369 lLl S7l $!20.44~007Jl00 $1.533,902 0.{)()% $!,000,00() to 52,499,9'~) 

Finns \Vith sales/rec-eipt•(re·v'-'nue, of 28,337 63U82 22.3 $71 7.000 $3.435.064 >.00"<>, $2,5(~).000 t<J $4,999,9')9 

FimJSwith .... '"r 9,714 355,2!0 36.6 $7! $57.721.674.000 $5,942.112 

~ $5.000,000 lo 57.499,999 

Finns with salcs/receipt.;;/revenue of 4,863 245.206 50.4 S7l :.7:!8.000 $8,347.263 $7,500.0()().$9.999,999 

Firms \Yith saics-'rc-<::eipt>i/rev~nut:. of 4,658 H3.530 1.5 $7! S53.578Jl44.000 $11.502.37! $10,000,000 lo $!4,99'1,999 

Firms with sak~/reccipl~/n:.-•vcnue of 2,338 211.940 90.7 $71 '1>36. 728. 134,()\}(l $!.5,709.210 (!,()()"'' Sl5.rnlo.ooo to ~1o ooo o<1<> 

Firms ':vith sales,'receipt-<;.''revenuc of 

I~~" '""' non to $24.999,999 !.381 +7.737 Hl7.0 $71 ~?7 ld~ 1011ilill $19,875,59! 0.00°h 

Finns \vith sal~s,'reveipts,'revenue of 954 122.039 127.9 $71 :.723,()01) $23,713,546 $25,000,000 to ~·Jo ooo ()()() 

Firms \Vith :salesiret.'Ciptsirevenuc of 603 91,258 151.3 S71 $15.961.4 !3.00() $26.470.(105 o.oo•, $30.000.000 to $34.999,999 

Finns '\Nith salcsire-ceipt~ireYt:mue nf 51! 83.414 163.2 S7l $.15,94!,27~000 $31. 0.00% $35,000.000 to ~N QQQ Q'lll 

IN'i\_,, nnt available) not disdosed 
Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5273 


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Table 14: Cost per small firm in the management of companies and enterprises industry. 

Firms 1,1,:ith sale>&irccciptsirevcnue of 

$!5.()00,000 to $!9.999.999 

Firms with sales/rcceiptsin::\'cnuc of 

$20,000,0i~llo 

Management of Companies and Enterprises Industry Small Busino" Siz<' Standard: $20.5 million 

Average 

Number of Total Nt.unbt"'f ~mnber of Annual Cost 

li'irms of Employees Employees pt>r 

Firm 

4,529 

5,082 

rs.s29 

26.723 $71 SL69K014,0\IO 

28,312 16.5 $71 St855, 703,0\Xl 

22,469 17.9 $1.711,4M,(l(Kl 

21.4 1>3, 120.558.11()0 

24,1 

28.4 

Table 15: Cost per small firm in the administrative and support and waste management 

and remediation services industry. 

Firms \Vith satcs:rcc.eiptsirevenue beto\v 

$Hl0Jl00 

Firms \vith sales/receipts, 'n;..-'\tcnuc of 

$l00,00(lto 

Firms \Vi1h sales.·rccx.:ipts/rcve,nuc Df 

$500,(1()0 to $999,999 

Finns with sates.'reooipts ,revenue nf 

$25,000,000 to S29,999,999 

724 

528 

402 

267 

424,912 184. 

292,501 2~1.0 

208,9:19 288.6 

174,359 

173,953 

122,013 

Annu:\1 Cost 

per Firm Annual Ret<'ip!s 

$71 $4500.981,000 

$7! ~31,66L&03,000 

$71 $24,4 I2659Jl(l(l 

$71 $17,408,483,000 

$71 $12542,3 75,0lXl 

OJJO•: 

$!0,572, ll.OO~ 

$0,750, o.no• 

$17,323, (1.00? 
5274 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 


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Table 16: Cost per small firm in the educational services industry. 

Fim1H \vitb t-Htle,~~ 

$HXUJOO 

Firms with sates,'recdpts 

$lOOJlCIO to $499,999 

Finns \Villi sales:'rcccip-tsirevunuc of 

$50(),0(10 to $999.999 

Finns with of 

$1,000,000 to $2.499,999 

Finns \Yith salcsin:~cciptr.;/reYt.-'1me of 

$2,500,000 to $4,999,999 

Firms \Vith salcs/re~-cipt<)/1\.,'Vcnuc of 

$5JJ!Xl,OOO to $7,490,99') 

}'irms vdth s.ales,t•ect.'.ipt·'i1fCVcnue of 

$7,500,000·$9,999,999 

Finns w·ith salcs.-·recciptsircvcmtc of 

$llHl00,()(Xl to $14.999,999 

Films wit11 salcs/reccipts:rcvenut:: of 

$15.000.000 to $19,999.999 

Finns with sales "rccc-ip"ffi/re.vt."'nu~: of 

$20,000,0(10 to $24,999.999 

Firms with. sales ·rccciptsh·cvenuc of 

S30,iXJO,OOO to $:'14,999,999 

Firms \Vith salcs/reccipts/tevl!nue- of 

$:l5JlOOJJOO to $39,999.999 

Educational Services Industry Small Businc" Size Standard: $7.5 million S38.5 million 

Average 

Number of Tutal Number of 

Finus of FAltploy('es Emp!oyt'<'li pet· 

Firm 

Annual Cos! 

!l"f Firm Annual Receipts 

AYerage 

per 

Annual Cost 

Firm as 

of 

Receipts 

2LS:ll 50.9% 2,? 

= 

27,938 158,913 5.1 

3,504 112,142 13.2 

8A65 2LU86 25.: 

$7~$].(10:1,9 (lJ5 

$71 

----~-----+------r-----$71 $5,984,604. $7tl3,740 () 

4,302 209,778 41!.8 $71 $14.792.101,000 $3,438.424 

I.SSS 117.648 74.1 $71 $'9.314,307,000 $5,865,433 

888 83.741 94.3 $71 $7,129. $8.029.244 

1.(103 127,781 127.4 $71 $! 1,306, Sl 1.272,191 (),()()" 

461 79Jl59 l7L5 $71 $6,98~.007,000 $!5. 147521 

355 73JI45 205.8 $7! $6,992Jl60,01JO $19,695,944 0,()( 

268 7tU9l 261.9 $71 $6,343.422.000 $2.',669.485 (),01 

172 60,202 350.( $71 S5.ll\U82.000 S29, 762.686 (),()! 

138 55.75.'\ 41:14.0 OJlt 

Table 17: Cost per small firm in the health care and social assistance industry. 

Health Care and Social Assistance Indust:ry_ 

Small f3tL,ineos Size Standard: $7.5 million ~ $38.5 millioo 

. Averag:r Avera~ Annual Cost 

Number of Total Number Annual Cost per }'inn as 

of F:mployces I Employees per per .Firm Annual Receipts pet· Firms Percent of" 

I , Flnn Receinls 

Finns \Vith salcs/rcc.eipts/:t'evcnuc below· 

lswo.ooo 107.112 162265 L5 $71 $5,064,756.000 $47,285 tU5" 

~~~~~O~~tl:0 s~:~;~qJ!sirmenue of ~560 1,027.234 4.; $71 $60, 168,5'\LOllO ~78< 0,03~·< 

sales/recciptsirevenue of 12.5.095 1,(154.'185 SA $71 $88.227.442.000 $7()5,284 0.0!% $999,999 

~~~111:s \Vith sa1esJ~·e.ceiptt;.ireYenue of 

,000.0011 to $2.499,99'1 84,361 1.466.391 17.4 $71 $!26,989.626.000 $!.505,312 O.OOQ,b 

Firms with .sotles 'rec:e1)Jts/revenue of 26,466 U07,445 4L8 $71 $91.034,690,000 'i:'\ A'\<>1;8, O.OO"·i $2.500Jl00 to $4,999.999 

Firm~ with '"f 9,453 712,840 75.4 $71 $56,54!,818,000 $5,98!,362 QJlO?' I~<""" lllll)to $7,499,991) 

Finns ·with salcs.,'receipts/n.."\/CfiUC of 

ie7 <f\11 I)<WU<Hl<>OOOQ 4,867 501.258 103.0 $71 S·l Ul63,9'66,000 $8.437,223 0Jl0°iJ 

Fitms \vith salcs/rccciptsircv-enuc of i,198 760,60: 1463 $71 $6L !!6,459,000 l L757,681 o.oo•. 

~~'""'"'"' th sah;:s/r-ec~::ipl-.::/rev:.:;nuc of 2,4<)8 497.184 20L5 $71 $40,851.963,000 $16,552,659 O.(J()oo 000 to $19.990,999 

th satcsi1'CCeij)f:sircvenue of l,'\74 3.47.358 252.8 $71 $29, 140.498,(!0() $2L208,5!4 o.oo• lXJO to 0 ' """ """ 

~·~.-=~~·· 978 284,827 291.2 $7! $25Jl26, 728.0011 $25,589,701 O.tl!l% , <'JOOOOQOO 

rcccipb;J"fC\'Cnuc of 665 23036C 34{),4 $71 &7,268,(l(K s:o.n6,7!9 ()JlO"\ 34,999,999 

rcccipt.<l/revcnuc -of 485 185.982 38J.5 $71 $16. 744.18UJ()(l $34.52.t,085 (),(){)•;, , <><Hllioooo 
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Table 18: Cost per small firm in the arts, entertainment, and recreation industry. 

Arts, Entertainment, and Recreation Industry Small Business Size Standard: $7.5 million· S3K5 million 

Average Average Annual Cost 

;'\lumber of Total Number Ntunber of Annual Cost pt>r Firm as 

Firm.s or Enlplnyees t:mployees j>et per Pirm Annual Receipts Receipts per Percent of 

Firm Firm Roeeltlts 

Fim1:s with salesireceiptsireve:nue 33,186 5"'99+ L6 $71 SU69,733,000 $47,30! 0.!5"··· below $Hl!l.OOO 

Finns \\-itll salcsirccciptsit·evenue of 46,210 199,647 43 $71 $1 L295.277,ll00 $244.43-1 0.03% S!OO,OOO to $499,999 

Firms vdth sa1esireceipts/r~venue of 15,493 162.._642 !05 $71 $10,894,947,000 !7 (tO!% $50(),000 to $999,999 

Firn:xs '\vilh sal-e-srrccdptR-it'e·vcnue of 12,148 259A80 2!.4 $71 $18.53Ll41,000 $LS25A48 OJJO"o ISI,(l()(l,OOO to $2,499,999 

Firms '"ith saks/receiptsit'eVt"1lUe nf 4,67~ 209.762 44.9 $71 $!6,040,448,000 S3A3U46 0.0~" S2500.000 to $4,999,999 

Firms \'l:ith sales/receipts/revenue of 1,718 12ll,58(i 70.2 $71 S9,983,571,000 $5,8!1,159 O.O(l"<> 1~"1 ll<lCUlot) !o $7,499,999 

FirnL~ v1ritl1 sal~sireceipts/rcvenue of 806 74.628 92.6 $71 $6.466,7 56.000 $8.(123.270 0,00"<. $7,500,0!)0-$9,999,999 

Hrms \Vith saJ.cs:/re.;eipt~./rt:-v<:nuc of 660 77.131 !16.9 $71 S7,102,42J,OOtJ $ ](),761,247 O,O(Y'n $!0,000,000to $J.!,999,999 

Firms \Yith sales.1

rcceipts/revenue of 344 49.061 142.6 $71 $4,965,644,000 $14,435,012 0.00% $!5,000,000 lo $19,999.999 

~24,999.99'1 224 40,,:109 1&0.0 $71 t '(, 007 !)()~ $!8,464,295 o.oo~. 

Firms \Vith saks<"recdpts/rcvl;.';nuc of 155 33,220 214.3 $71 $3,428,904,00() $22.12!,961 ().()0% 

$25,000,000 to <~<> ''"" '""' 

Fittns \\lith sales/rcceipts/rcl.:enue of ll5 281855 250.9 $71 $2,873,044,0()[) $24,982,991 tUlO% $30,000,000 to $34,~199,999 

Finns with s:'ih:s/receipts_ireverme of 84 25,163 29'1.6 $71 $2,569,574,000 $30,590,167 !1.00'% $35,000,000 t<) $39,999,999 

Table 19: Cost per small firm in the accommodation and food services industry. 

Accommodation and Food Services Industry Small Business Size Standard: $7.5 million·~ $38.5 million 

Average An~ rage Annual Cost 

Number nf Total.Numb<>r N11mberof Annual Cost Annual Hecelpls Receipts per per Firm as 

J•~irrns of Employees Employees per twr- finn l"t>rcent or "Firm Firm R.reints 

Firms vvith sales/rccdptsircvcnuc 99,592 207,093 2.1 $71 $4,845.922,000 $48,658 0,15% bdow $100,000 

Firms with saJ~s!r~ceipts"r~v~nue of 216,446 1,349,187 6.2 $71 $55,536,558,00() $256,584 ().03% SlOG.Ol)(l to 5499.999 

Firms \Vith &.'lles./reccipts·reve:nue of 79,875 !,260,097 15.8 $11 $55.913.962.000 

~ (t.01'\} $500,000 to $999,999 

Firms 1vit!1 s.ales/re-e-t~ipts,'revenuc of 56,476 1,777.649 3L5 $71 $84,117,236.000 O.IJO~o SUJOO.lliJO to $2.499,999 

Firms \\'iti:t salcsJroccipts/rcvcnuc of 14Jl95 896.373 63.6 $71 $46,231,:100,000 $3,279,979 O.OO~·o k1 '""' '""l to $4,999,999 

Firms \'Vith sal~sJr¢eeipts/revcnuc of •.no 4tLl,866 108.6 $71 $21.249,810.000 $5,712,315 O,OO"i> $5,\lO(l,OOO to $7,499.999 

Firm~ \Vith salcs·'receipts/revenue of 1,621 244,77:? 15LO $71 $12,&35,230,000 $7,91&,094 0.00°0 l$7, ~nn 000-~9 999 999 

Finns \\ith sah."tS,'rcceiptsfrcvcnuc of 

1,628 j,I(J,74l 209.3 $71 $17,98U34,000 $1!,047,195 (H)(l"·o $10,000,000 to $14,999,999 

Firms vvith s.alcs/r~cipts/rcvenue of 859 252,279 293.7 $71 SB.!l54,878,000 $l5,l\17,76.l (}J_)Q~~'o 

Sl5.000,000 to S19,999,999 

Firms with "''V' •""' <>f 446 !70,201 38L6 $71 $8.420,579,000 :!:18,880,222 0.\~l"'o SZO.OOOJl()(l !o $24,999,999 

Firms \Yith salesireccipts_!t·cvenuc of 363 153,594 423.1 $71 $7,987,1!0,0()0 $2Ul03,ll58 0.00~·0 $25.000,000 !o $29.999,999 

Finns \\-iJh sa1es-'receipts/revenue of 241 115.452 479.1 $7] $6,405,()41,000 $26. 0.00% $30,\l!l!J,OO(J to $34,999,999 

Finns with satt~sit\~t~eipts/revt:nue nf 170 90,301 531.2 $71 $4,832,335,0()[) $28,425,5001 O.OO~·o $35,\)(10,000 to~'""''" ooo 
5276 Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 

BILLING CODE 4510–CM–C 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that OFCCP 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. According to the 

1995 amendments to the Paperwork 

Reduction Act (5 CFR 1320.8(b)(2)(vi), 

an agency may not collect or sponsor 

the collection of information, nor may it 

impose an information collection 

requirement, unless it displays a 

currently valid OMB control number. 

OFCCP has determined that there is 

no new requirement for information 

collection associated with this proposed 

rule. This proposed rule clarifies and 

updates current part 60–20 and removes 

outdated provisions so that the 

requirements conform to current sex 

discrimination law. The information 

collection requirements contained in the 

existing Executive Order 11246 

regulations are currently approved 

under OMB Control No. 1250–0001 

(Construction Recordkeeping and 

Reporting Requirements) and OMB 

Control No. 1250–0003 (Recordkeeping 

and Reporting Requirements—Supply 

and Service). Consequently, this 

proposed rule does not require review 

by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501 et seq. 

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 foreignbased 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 NPRM 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 proposed 

rule in accordance with Executive Order 

13132 regarding federalism, and has 

determined that it does not have 

‘‘federalism implications.’’ This 

proposed rule will not ‘‘have substantial 

direct effects 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 proposed rule does not have 

tribal implications under Executive 

Order 13175 that would require a tribal 

summary impact statement. The 

proposed rule would 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 NPRM would not adversely affect 

the well-being of families, as discussed 

under section 654 of the Treasury and 

General Government Appropriations 

Act, 1999. To the contrary, by better 

ensuring that working mothers do not 

suffer sex discrimination in 

compensation, benefits, or other terms 

and conditions of employment, and that 

working fathers do not suffer 


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Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5277 

1This part also applies to entities that are 

‘‘applicants’’ for Federal assistance involving a 

construction contract as defined in part 60–1 of this 

title. 

discrimination on the basis of sex-based 

stereotypes about caregiver 

responsibilities, the NPRM would have 

a positive effect on the economic wellbeing of families, especially of families 

headed by single mothers. 

Executive Order 13045 (Protection of 

Children) 

This NPRM would have no 

environmental health risk or safety risk 

that may disproportionately affect 

children. 

Environmental Impact Assessment 

A review of this NPRM 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, 41 

CFR part 11, indicates the NPRM 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 NPRM 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 NPRM 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 NPRM was drafted and reviewed 

in accordance with Executive Order 

12988 and will not unduly burden the 

Federal court system. The NPRM 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 in 41 CFR Part 60–20 

Civil rights, Discrimination in 

employment, Employment, Equal 

employment opportunity, Government 

procurement, Labor, Sex, Women. 

Patricia A. Shiu, 

Director, Office of Federal Contract 

Compliance Programs. 

For the reasons set forth in the 

preamble, OFCCP proposes to revise 41 

CFR part 60–20 to read as follows: 

PART 60–20—DISCRIMINATION ON 

THE BASIS OF SEX 

Sec. 

60–20.1 Purpose. 

60–20.2 General prohibitions. 

60–20.3 Sex as a bona fide occupational 

qualification. 

60–20.4 Discriminatory compensation. 

60–20.5 Discrimination on the basis of 

pregnancy, childbirth, or related medical 

conditions. 

60–20.6 Other fringe benefits. 

60–20.7 Employment decisions made on 

the basis of sex-based stereotypes. 

60–20.8 Harassment and hostile work 

environments. 

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. 

§ 60–20.1 Purpose. 

The purpose of this part is to set forth 

specific requirements that covered 

Federal Government contractors and 

subcontractors, including those 

performing work under federallyassisted construction contracts 

(‘‘contractors’’),1 must meet in fulfilling 

their obligations under Executive Order 

11246, as amended, to ensure 

nondiscrimination on the basis of sex in 

employment. These regulations are to be 

read in conjunction with the other 

regulations implementing Executive 

Order 11246, as amended, set forth in 

parts 60–1, 60–2, 60–3, 60–4, and 60–30 

of this chapter. 

§ 60–20.2 General prohibitions. 

(a) In general. It is unlawful for a 

contractor to discriminate against any 

employee or applicant for employment 

because of sex. The term sex includes, 

but is not limited to pregnancy, 

childbirth, or related medical 

conditions; gender identity; and 

transgender status. 

(b) Disparate treatment. Unless sex is 

a bona fide occupational qualification 

reasonably necessary to the normal 

operation of a contractor’s particular 

business or enterprise, the contractor 

may not make any distinction based on 

sex in recruitment, hiring, firing, 

promotion, compensation, hours, job 

assignments, training, benefits, or other 

terms, conditions, or privileges of 

employment. Such unlawful sex-based 

discriminatory practices include, but are 

not limited to, the following: 

(1) Making a distinction between 

married and unmarried persons that is 

not applied equally to both sexes; 

(2) Denying women with children an 

employment opportunity that is 

available to men with children; 

(3) Firing, or otherwise treating 

adversely, unmarried women, but not 

unmarried men, who become parents; 

(4) Imposing any differences in 

retirement age or other terms, 

conditions, or privileges of retirement 

on the basis of sex; 

(5) Restricting job classifications on 

the basis of sex; 

(6) Maintaining seniority lines and 

lists based upon sex; 

(7) Recruiting or advertising for 

individuals for certain jobs on the basis 

of sex, including through use of genderspecific terms for jobs (such as 

‘‘lineman’’); 

(8) Distinguishing on the basis of sex 

in apprenticeship or other formal or 

informal training programs; in other 

opportunities such as networking, 

mentoring, sponsorship, individual 

development plans, rotational 

assignments, and succession planning 

programs; or in performance appraisals 

that may provide the basis of 

subsequent opportunities; 

(9) Making any facilities and 

employment-related activities available 

only to members of one sex, except that 

if the contractor provides restrooms or 

changing facilities, the contractor must 

provide separate or single-user 

restrooms or changing facilities to 

assure privacy between the sexes; 

(10) Denying transgender employees 

access to the bathrooms used by the 

gender with which they identify; and 

(11) Treating an employee or 

applicant for employment adversely 

because he or she has undergone, is 

undergoing, or is planning to undergo 

sex-reassignment surgery or other 

processes or procedures designed to 

facilitate the adoption of a sex or gender 

other than the individual’s designated 

sex at birth. 

(c) Disparate impact. Employment 

policies or practices that have an 

adverse impact on the basis of sex, and 

are not job related and consistent with 

business necessity, violate Executive 

Order 11246, as amended, and this part. 

Examples of policies or practices that 

may violate Executive Order 11246 in 

terms of their disparate impact on the 

basis of sex include, but are not limited 

to: 

(1) Minimum height and/or weight 

qualifications that are not necessary to 

the performance of the job and that 

negatively impact women substantially 

more than men; 


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(2) Strength requirements that exceed 

the strength necessary to perform the job 

in question and that negatively impact 

women substantially more than men; 

(3) A policy prohibiting large 

equipment operators from using a 

restroom while on the job, which 

adversely impacts women, who may 

require the use of restrooms more than 

men; and 

(4) Conditioning entry into an 

apprenticeship program on passing a 

scored written test that has an adverse 

impact on women where the contractor 

cannot establish the validity of the test 

consistent with the Uniform Guidelines 

on Employee Selection Procedures, 41 

CFR part 60–3. 

§ 60–20.3 Sex as a bona fide occupational 

qualification. 

Contractors may not hire and employ 

employees on the basis of sex unless sex 

is a bona fide occupational qualification 

(BFOQ) reasonably necessary to the 

normal operation of the contractor’s 

particular business or enterprise. 

§ 60–20.4 Discriminatory compensation. 

Compensation may not be based on 

sex. Contractors may not engage in any 

employment practice that denies equal 

wages, benefits, or any other forms of 

compensation, or equal access to 

earnings opportunities, on the basis of 

sex, on either an individual or systemic 

basis, including but not limited to the 

following: 

(a) Contractors may not pay different 

compensation to similarly situated 

employees on the basis of sex. For 

purposes of evaluating compensation 

differences, the determination of 

similarly situated employees is case 

specific. Relevant factors in determining 

similarity may include tasks performed, 

skills, effort, levels of responsibility, 

working conditions, job difficulty, 

minimum qualifications, and other 

objective factors. In some cases, 

employees are similarly situated where 

they are comparable on some of these 

factors, even if they are not similar on 

others. 

(b) Contractors may not grant or deny 

higher paying wage rates, salaries, 

positions, job classifications, work 

assignments, shifts, or development 

opportunities, or other opportunities on 

the basis of sex. Contractors may not 

grant or deny training, work 

assignments, or other opportunities that 

may lead to advancement in higher 

paying positions on the basis of sex. 

(c) Contractors may not provide or 

deny earnings opportunities because of 

sex, for example, by denying women 

equal opportunity to obtain regular and/ 

or overtime hours, commissions, pay 

increases, incentive compensation, or 

any other additions to regular earnings. 

(d) Contractors may not implement 

compensation practices, including 

performance review systems, that have 

an adverse impact on the basis of sex 

and are not shown to be job related and 

consistent with business necessity. 

(e) A contractor will be in violation of 

Executive Order 11246 and this part any 

time it pays wages, benefits, or other 

compensation that is the result in whole 

or in part of the application of any 

discriminatory compensation decision 

or other practice described in this 

section. 

§ 60–20.5 Discrimination on the basis of 

pregnancy, childbirth, or related medical 

conditions. 

(a) Discrimination on the basis of 

pregnancy, childbirth, or related 

medical condition, including 

childbearing capacity, is a form of 

unlawful sex discrimination. 

Contractors must treat people of 

childbearing capacity and those affected 

by pregnancy, childbirth, or related 

medical conditions the same for all 

employment-related purposes, 

including receipt of benefits under 

fringe-benefit programs, as other 

persons not so affected, but similar in 

their ability or inability to work. Related 

medical conditions include, but are not 

limited to, lactation; disorders directly 

related to pregnancy, such as 

preeclampsia (pregnancy-induced high 

blood pressure), placenta previa, and 

gestational diabetes; symptoms such as 

back pain; complications requiring bed 

rest; and the after-effects of a delivery. 

A contractor is not required to pay for 

health insurance benefits for abortion, 

except where the life of the mother 

would be endangered if the fetus were 

carried to term or except where medical 

complications have arisen from an 

abortion, provided that nothing herein 

precludes a contractor from providing 

abortion benefits or otherwise affects 

bargaining agreements in regard to 

abortion. 

(b) Examples of unlawful pregnancy 

discrimination include, but are not 

limited to: 

(1) Refusing to hire pregnant people 

or people of childbearing capacity, or 

otherwise subjecting such applicants or 

employees to adverse employment 

treatment, because of their pregnancy or 

childbearing capacity; 

(2) Firing a female employee or 

requiring her to go on leave because the 

employee becomes pregnant or has a 

child; 

(3) Limiting a pregnant employee’s job 

duties based solely on the fact that she 

is pregnant, or requiring a doctor’s note 

in order for a pregnant woman to 

continue employment while pregnant 

when doctors’ notes are not required for 

employees who are similarly situated; 

(4) Providing employees with health 

insurance that does not cover 

hospitalization and other medical costs 

for pregnancy, childbirth, or related 

medical conditions, including 

contraceptive coverage, to the same 

extent that hospitalization and other 

medical costs are covered for other 

medical conditions; and 

(5) Denying an alternative job 

assignment, modified duties, or other 

accommodations to a pregnant 

employee who is temporarily unable to 

perform some of her job duties because 

of pregnancy, childbirth, or related 

medical conditions when such 

assignments, modifications, or other 

accommodations are provided, or are 

required to be provided by a contractor’s 

policy or by other relevant laws, to other 

employees whose abilities or inabilities 

to perform their job duties are similarly 

affected. 

(c) Leave—(1) In general. To the 

extent that a contractor provides family, 

medical, or other leave, such leave must 

not be denied or provided differently on 

the basis of sex. 

(2) Disparate treatment. (i) A 

contractor must provide job-guaranteed 

medical leave, including paid sick 

leave, for employees’ pregnancy, 

childbirth, or related medical conditions 

on the same terms that medical or sick 

leave is provided for medical conditions 

that are similar in their effect on 

employees’ ability to work. 

(ii) A contractor must provide jobguaranteed family leave, including any 

paid leave, for male employees on the 

same terms that family leave is provided 

for female employees. 

(3) Disparate impact. Contractors that 

have employment policies or practices 

under which insufficient or no medical 

or family leave is available must ensure 

that such policies or practices do not 

have an adverse impact on the basis of 

sex unless they are shown to be job 

related and consistent with business 

necessity. 

§ 60–20.6 Other fringe benefits. 

(a) It shall be an unlawful 

employment practice for a contractor to 

discriminate on the basis of sex with 

regard to fringe benefits. 

(b) As used herein, ‘‘fringe benefits’’ 

includes, but is not limited to, medical, 

hospital, accident, life insurance and 

retirement benefits; profit-sharing and 

bonus plans; leave; dependent care 

assistance; educational assistance; 

employee discounts; stock options; 

lodging; meals; moving expense 


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Federal Register / Vol. 80, No. 20 / Friday, January 30, 2015 / Proposed Rules 5279 

reimbursements; retirement planning 

services; and transportation benefits. 

(c) The greater cost of providing a 

fringe benefit to members of one sex is 

not a defense to a contractor’s failure to 

provide benefits equally to members of 

both sexes. 

§ 60–20.7 Employment decisions made on 

the basis of sex-based stereotypes. 

Contractors must not make 

employment decisions on the basis of 

sex-based stereotypes, such as 

stereotypes about how males and/or 

females are expected to look, speak, or 

act. Such employment decisions are a 

form of sex discrimination prohibited by 

Executive Order 11246, as amended. 

Examples of discrimination based on 

sex-based stereotyping include, but are 

not limited to: 

(a) Adverse treatment of an employee 

or applicant for employment because of 

that individual’s failure to comply with 

gender norms and expectations for 

dress, appearance and/or behavior, such 

as: 

(1) Failure to promote a woman, or 

otherwise subjecting her to adverse 

employment treatment, based on sex 

stereotypes about dress, including 

wearing jewelry, make-up, or high heels; 

(2) Harassment of a man because he 

is considered insufficiently masculine, 

or effeminate; and 

(3) Adverse treatment of an employee 

because he or she does not conform to 

sex-role expectations by being in a 

relationship with a person of the same 

sex. 

(b) Adverse treatment of an employee 

or applicant for employment because of 

his or her actual or perceived gender 

identity or transgender status. 

(c) Adverse treatment of an employee 

or applicant for employment based on 

sex-based stereotypes about caregiver 

responsibilities. For example, adverse 

treatment of a female employee because 

of a sex-based assumption that she has 

(or will have) family caretaking 

responsibilities, and that those 

responsibilities will interfere with her 

work performance, is discrimination 

based on sex. Other examples of such 

discriminatory treatment include, but 

are not limited to: 

(1) Adverse treatment of a male 

employee because he has taken or is 

planning to take leave to care for his 

newborn or recently adopted or foster 

child based on the sex-stereotyped 

belief that women and not men should 

care for children; 

(2) Denying opportunities to mothers 

of children based on the sex-stereotyped 

belief that women with children should 

not or will not work long hours, 

regardless of whether the contractor is 

acting out of hostility or belief that it is 

acting in the employee’s or her 

children’s best interest. 

(3) Evaluating the performance of 

female employees who have family 

caregiving responsibilities adversely, 

based on the sex-based stereotype that 

women are less capable or skilled than 

their male counterparts who do not have 

such responsibilities. 

§ 60–20.8 Harassment and hostile work 

environments. 

(a) Harassment on the basis of sex is 

a violation of Executive Order 11246, as 

amended. Unwelcome sexual advances, 

requests for sexual favors, offensive 

remarks about a person’s sex, and other 

verbal or physical conduct of a sexual 

nature constitute sexual harassment 

when: 

(1) Submission to such conduct is 

made either explicitly or implicitly a 

term or condition of an individual’s 

employment; 

(2) Submission to or rejection of such 

conduct by an individual is used as the 

basis for employment decisions 

affecting such individual; or 

(3) Such conduct has the purpose or 

effect of unreasonably interfering with 

an individual’s work performance or 

creating an intimidating, hostile, or 

offensive working environment. 

(b) Harassment because of sex 

includes sexual harassment (including 

sexual harassment based on gender 

identity); harassment based on 

pregnancy, childbirth, or related 

medical conditions; and harassment that 

is not sexual in nature but that is 

because of sex (including harassment 

based on gender identity). 

(c) Though not required by this part, 

to ensure an environment in which all 

employees feel safe, welcome, and 

treated fairly, it is a best practice for a 

contractor to develop and implement 

procedures to ensure its employees are 

not harassed because of sex. Examples 

of such procedures include: 

(1) Communicating to all personnel 

that harassing conduct will not be 

tolerated; 

(2) Providing anti-harassment training 

to all personnel; 

(3) Establishing and implementing 

procedures for handling and resolving 

complaints about harassment and 

intimidation based on sex. 

[FR Doc. 2015–01422 Filed 1–28–15; 11:15 am] 

BILLING CODE 4510–CM–P 


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