OFCCP Rules Out Data Collection Requirement Under LGBT Executive Order

Employment Law, Inclusion and Diversity

This week, the Office of Federal Contract Compliance Programs issued a final rule implementing President Obama's LGBT Executive Order (EO 13672), addressing major concerns that federal contractors had regarding affirmative action based on sexual orientation and gender identity.  President Obama signed EO 13672 because Congress had refused to enact the Employment Non-Discrimination Act (ENDA).  However, the executive order goes farther than ENDA, which is limited to a ban on discrimination and specifically excludes affirmative action requirements.  As expressed in an HR Policy letter to OMB, the major concern with the affirmative action requirement was that it would require federal contractors to determine the sexual orientation and gender identity of employees and applicants and collect data accordingly.  In a positive development, the preamble to the final rule specifically states that neither of these actions is required.  In addition, the rule:

• Does not require contractors to set placement goals on the basis of sexual orientation or gender identity;
• Makes no changes to the written affirmative action program (AAP) requirements; thus AAPs will continue to be limited to gender, race, and ethnicity; and
• Does not define "sexual orientation" or "gender identity;" as a general matter, OFCCP will utilize the definitions used by the EEOC and developed under Title VII case law.

Although the final rule addresses many of the concerns we expressed in our letter, it indicates OFCCP will use both statistical and non-statistical data in determining whether contractors have complied with their nondiscrimination obligations.  How this will be accomplished if contractors are not required to collect any statistical data remains to be seen.