DOL Moves Forward With Final LGBT Rule Without Input From Employers

Employee Relations, Inclusion and Diversity

HR Policy Association sent a letter this week to the Office of Management and Budget expressing serious concerns over the Department of Labor's truncated rulemaking process for its final rule implementing the President's LGBT Executive Order 13672, including the Department's failure to seek input from employers on the important enforcement issues and affirmative action requirements that may be included in the final rule.  Last week, OFCCP submitted a final rule to OMB without first proposing a rule or asking for comments.  The letter to OMB notes that although the Executive Order instructs the Department to "prepare regulations" within 90 days, it does not require OFCCP to start the regulatory process with a final rule.  Most of the uncertainty raised by the executive order concerns its requirement that employers engage in affirmative action regarding LGBT employees and what data federal contractors are supposed to use to set placement goals as required by existing affirmative action regulations.  The letter also notes that the Senate-passed version of ENDA (S. 815) precludes the establishment of quotas or collection of data.  The Association's letter requests a meeting with OMB to discuss:

• How will federal contractors determine the availability of the new protected class?
• Whether and how the OFCCP will enforce the rule by requiring contractors to collect data on the sexual orientation and gender identity of employees and applicants?
• If the final rule implicitly includes hiring goals, will contractors determine the goals for themselves, or will OFCCP set a hiring goal as the agency did for its recently updated disability rule?
• Whether and how contractors would be required to evaluate their compensation systems to determine if there are sexual orientation or gender identity-based disparities?