Office of Federal Contract Compliance Programs (OFCCP)
Frequently Asked Questions
Sexual Orientation and Gender Identity
Sexual Orientation and Gender Identity
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) enforces regulations that prohibit discrimination based on sexual orientation and gender identity, under Executive Order 11246, as amended.
Overview of the Regulations
Equal Opportunity Contract Clause Incorporation
- Do federal contracting agencies have to alter the Equal Opportunity Clause as a result of the changes to Executive Order 11246?
- May contractors incorporate the equal opportunity clause into contracts and subcontracts “by reference?”
Job Advertisement Tag Line
- How should “sexual orientation” and “gender identity” be included in contractor solicitations and advertisements for employees?
- If I include all of the bases instead of the phrase “equal opportunity employer,” can I abbreviate “sexual orientation” and “gender identity” in job solicitations and advertisements?
AAP and Policy Statement
Outreach and Recruitment
Religious Employers and Religious Exemption
- How does Executive Order 11246 apply to religious organizations?
- Do OFCCP’s regulations prohibiting discrimination based on sexual orientation and gender identity alter the religious exemption in EO 11246 in any way?
- What kinds of organizations are covered by the religious exemption of Executive Order 11246?
- How can contractors invoke the religious exemption under 41 CFR 60–1.5(a)(5)?
- How does EO 11246’s exemption for religious organizations operate in light of the addition of the new protected categories?
- How does the “ministerial exception” interact with Executive Order 11246?
Technical Assistance and Public Education
- What steps has OFCCP taken to educate the public on the sexual orientation and gender identity protections in Executive Order 11246 (e.g., workshops, webinars, and the issuance of other guidance materials)?
- How can I sign up to participate in educational events and opportunities?
- What should I do if I have a question that is not answered by OFCCP’s regulations or other materials?
Implementation Questions
In General
Covered Contractors
- How do I know whether an employer is a federal contractor subject to sexual orientation and gender identity requirements enforced by OFCCP?
- If I am only a federal grant recipient, and not a contractor, am I subject to Executive Order 11246 as amended to include sexual orientation and gender identity?
Definitions
Data Collection, Self–Identification, and Supporting Documentation
- May a contractor ask a transgender applicant or employee for documentation to prove his or her gender identity?
- What kinds of documents may an employer require a transitioning applicant or employee to provide about the employee’s transition?
- If a contractor voluntarily collects data on the sexual orientation and gender identity of employees and applicants, will OFCCP request the data during a complaint investigation or compliance evaluation?
EEO Poster
Restrooms
Types of Discrimination
Intersection of State and Local Nondiscrimination Laws
Relation to Title IX
Employee Benefits
- Is a contractor required to provide fringe benefits to an employee’’ same–sex spouse? What about employees in civil unions or domestic partnerships?
- How do OFCCP’s EO 11246 regulations address transition–related health benefits?
Visa Denials and Related Issues
Overview of the Regulations
Equal Opportunity Contract Clause Incorporation
- Do federal contracting agencies have to alter the Equal Opportunity Clause as a result of the changes to Executive Order 11246?
Yes. Under Executive Order 11246 and its implementing regulations, federal contracting agencies must include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in federal contracts. - May contractors incorporate the equal opportunity clause into contracts and subcontracts “by reference?”
Yes. Contractors may continue citing to “41 CFR 60–1.4,” the equal opportunity clause provision of the regulations, to incorporate by reference the Executive Order 11246 equal opportunity clause into their contracts and subcontracts.
Job Advertisement Tag Line
- How should “sexual orientation” and “gender identity” be included in contractor solicitations and advertisements for employees?
Under OFCCP’s regulations, contractors may either state that they do not discriminate on any of the protected bases under Executive Order 11246, and list them all, or they may simply use the phrase “equal opportunity employer.” If electing the first option, contractors are required to add “sexual orientation” and “gender identity” to the list of bases on which discrimination is prohibited. As a reminder, contractors will also be required to display an updated “EEO is the Law” poster reflecting the new protected bases once that poster is finalized by the EEOC and OFCCP. Until that poster is finalized, contractors must post the “EEO is the Law Poster Supplement,” published by OFCCP here. - If I include all of the bases instead of the phrase “equal opportunity employer,” can I abbreviate “sexual orientation” and “gender identity” in job solicitations and advertisements?
No. Contractors cannot abbreviate “sexual orientation” and “gender identity” if opting to list all of the bases on which discrimination is prohibited under Executive Order 11246, as amended. For example, one acceptable tagline might be “Equal Opportunity Employer–minorities/females/veterans/individuals with disabilities/sexual orientation/gender identity.” The intent is to provide as much notice as possible about the protected groups while allowing contractors some flexibility for constructing their taglines.
AAP and Policy Statement
- Must a federal contractor indicate that it does not discriminate based on sexual orientation or gender identity in its Affirmative Action Program (AAP) or any of its policy statements or handbooks?
No. There is no requirement that contractors indicate in their AAPs, policy statements, and handbooks that they do not discriminate based on sexual orientation and gender identity, but contractors may choose to do so.
Outreach and Recruitment
- Do the regulations require outreach activities directed toward LGBT applicants and employees?
OFCCP’s regulations do not require contractors to engage in outreach activities directed toward LGBT applicants and employees, but contractors may engage in such activities to attract a spectrum of qualified candidates.
Religious Employers and Religious Exemption
- How does Executive Order 11246 apply to religious organizations?
Executive Order 11246, as amended, only applies to employers that are federal contractors or federally–assisted construction contractors. Religious organizations that are not contractors, but recipients of grant funds, for example, the Senior Farmers’ Market Nutrition Program, the Office of Refugee Resettlement Voluntary Agencies Matching Grant Program, and the Community Development Block Grant (CDBG) program, are not subject to Executive Order 11246. On the other hand, if a religious organization does hold a covered contract, it is prohibited from discriminating on any of the protected bases listed in Executive Order 11246, as amended, including sexual orientation and gender identity. The Executive Order and OFCCP regulations do provide an exception that permits religious organizations to prefer to employ only members of a particular religion. The so–called “ministerial exception,” also discussed below, may apply as well. - Do OFCCP’s regulations prohibiting discrimination based on sexual orientation and gender identity alter the religious exemption in EO 11246 in any way?
No. The regulations do not change the existing religious exemption, which allows religiously affiliated contractors (religious corporations, associations, educational institutions, or societies) to favor individuals of a particular religion when making employment decisions. The regulation implementing that exemption is located at 41 CFR 60–1.5(a)(5).
The religious exemption regulations state that the nondiscrimination obligations of Executive Order 11246 “shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
In addition, the Supreme Court has recognized that the First Amendment to the Constitution requires a “ministerial exception” from employment discrimination laws, which prohibits the Government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy. - What kinds of organizations are covered by the religious exemption of Executive Order 11246?
Under section 204(c) of Executive Order 11246 and 41 CFR 60–1.5(a)(5), the Executive Order does not apply to a government contractor or subcontractor that is a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of the organization’s activities. This language mirrors the religious exemption of Title VII of the Civil Rights Act of 1964, and OFCCP will follow EEOC and courts’ interpretations of Title VII when determining which organizations can claim the exemption and how it applies. Under established case law, this exemption applies only to those institutions whose purpose and character are primarily religious. In determining whether a contractor qualifies for this exemption, OFCCP will consider all significant religious and secular characteristics of the organization, with each case turning on its own facts. Although no one factor is dispositive, significant factors that courts have considered to determine whether an employer is a religious organization for purposes of Title VII include: whether the contractor is not for profit, whether its day–to–day operations are religious (e.g., are the services the contractor performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether the contractor’s articles of incorporation or other pertinent documents state a religious purpose; whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or other religious organization; whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; whether the contractor holds itself out to the public as secular or sectarian; whether the contractor regularly includes prayer or other forms of worship in its activities; whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and whether its membership is made up of coreligionists. - How can contractors invoke the religious exemption under 41 CFR 60–1.5(a)(5)?
Executive Order 11246 and 41 CFR 60–1.5(a)(5) do not require contractors to obtain pre–approval from OFCCP to take advantage of the religious exemption. In the past, though, some contractors have submitted written requests for exemptions to OFCCP’s Division of Program Operations, explaining why they qualify for the exemption. Contractors can also invoke the exemption in connection with an OFCCP compliance evaluation, or when they enter into a covered contract or subcontract. OFCCP carefully considers each of these requests in coordination with the Solicitor of Labor. - How does EO 11246’s exemption for religious organizations operate in light of the addition of the new protected categories?
In general, this exemption allows religious organizations to prefer to employ only members of a particular faith, but it does not allow religious organizations to discriminate in employment on the basis of race, color, sex, sexual orientation, gender identity, or national origin. - How does the “ministerial exception” interact with Executive Order 11246?
The Supreme Court has recognized that the First Amendment requires a “ministerial exception” from employment discrimination laws, which prohibits the government from interfering with the ability of a religious organization to make employment decisions about its “ministers,” a category that includes, but is not limited to, clergy. In determining whether the ministerial exception applies to an employer’s decision in a particular case under Executive Order 11246, OFCCP, as guided by Supreme Court precedent, makes an assessment of all of the facts and circumstances of employment, including the functions performed by the employee, the job title given to and used by the employee, and the amount of time the employee spends on particular activities.
Technical Assistance and Public Education
- What steps has OFCCP taken to educate the public on the sexual orientation and gender identity protections in Executive Order 11246 (e.g., workshops, webinars, and the issuance of other guidance materials)?
OFCCP has published compliance assistance materials such as fact sheets and “Frequently Asked Questions” and hosted webinars on the requirements. OFCCP also conducted workshops and forums to listen to any questions and concerns contractors and other stakeholders had about the regulations. As with the implementation of its other regulations, OFCCP is committed to engaging its stakeholders with the goals of providing access to information, identifying and addressing issues that might hinder a successful implementation, and providing compliance assistance to contractors. OFCCP will publish additional technical assistance materials, as appropriate. - How can I sign up to participate in educational events and opportunities?
OFCCP will provide advance notice of any upcoming educational opportunities on its Web site, along with information as to how to participate. To view scheduled technical assistance webinars and stakeholder events visit the DOL Events Calendar at https://webapps.dol.gov/calendar/. To view recordings and transcripts of previously conducted technical assistance webinars visit the OFCCP Public Webinars page at https://www.dol.gov/ofccp/regs/compliance/final_rules_webinars.htm. - What should I do if I have a question that is not answered by OFCCP’s regulations or other materials?
Contractors and other stakeholders may always reach out to OFCCP’s Customer Service Desk with questions by calling 1–800–397–6251, or by going to the “Contact” tab on the OFCCP Web site at https://www.dol.gov/ofccp/ to email us.
Implementation Questions
In General
Covered Contractors
- How do I know whether an employer is a federal contractor subject to sexual orientation and gender identity requirements enforced by OFCCP?
If a business or organization has a Federal contract, subcontract, or federally assisted construction contract it may be subject to the requirements of Executive Order 11246. Generally speaking, any business or organization that (1) holds a single Federal contract, subcontract, or federally–assisted construction contract in excess of $10,000; (2) has a Federal contract or subcontracts with a 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 will be subject to the requirements of Executive Order 11246. Federal contractors who enter into a covered federal contract or subcontract, or modify an existing covered federal contract or subcontract, on or after April 8, 2015, are subject to the sexual orientation and gender identity requirements of Executive Order 11246. - If I am only a federal grant recipient, and not a contractor, am I subject to Executive Order 11246 as amended to include sexual orientation and gender identity?
Executive Order 11246 and its implementing regulations generally apply to employers who are contractors or subcontractors with the Federal government, as well as construction contractors working on federally–assisted construction projects, with covered contracts in excess of $10,000. They do not apply to grant recipients or non–construction recipients of federal financial assistance.
Definitions
- What does “gender identity” mean?
The term “gender identity” refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others. - What does “sexual orientation” mean?
“Sexual orientation” refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or different gender. Examples of sexual orientations include straight (or heterosexual), lesbian, gay, and bisexual.
Data Collection, Self–Identification, and Supporting Documentation
- May a contractor ask a transgender applicant or employee for documentation to prove his or her gender identity?
No. A contractor may not ask any applicants or employees to prove their gender identity or transgender status. - What kinds of documents may an employer require a transitioning applicant or employee to provide about the employee’s transition?
Employers may not ask transgender applicants or employees for any documentation they do not request from other employees under similar circumstances. For example, if a transgender employee is requesting to make a name change, an employer may require the same documentation it requires from other employees seeking to effectuate a name change. If a transgender employee is requesting medical leave in connection with his or her transition, an employer may request the same documentation it requires from other employees seeking medical leave. It is a best practice to establish policies and procedures that address human resources and cultural sensitivity issues for employees who are transitioning. Once an employee has voluntarily made a disclosure to HR or the appropriate office within the company, the most successful policies provide for ongoing communication between the employee and the employer. - If a contractor voluntarily collects data on the sexual orientation and gender identity of employees and applicants, will OFCCP request the data during a complaint investigation or compliance evaluation?
While OFCCP does not require the collection of this data, contractors are encouraged to collect data that they find useful to their diversity and inclusion efforts, consistent with any state or local laws. If a contractor possesses data that is relevant to the compliance evaluation or a specific matter under investigation, OFCCP may request that data. The fact that OFCCP may request this information should not deter contractors from voluntarily collecting it.
EEO Poster
- Will the “EEO is the Law” poster be revised to include sexual orientation and gender identity?
OFCCP is discussing changes to the “EEO is the Law” poster with the Equal Employment Opportunity Commission (EEOC). The poster will be revised in light of changes in several regulations. While OFCCP is working with EEOC to revise the poster, contractors should continue using the existing poster as well as the “EEO is the Law” poster supplement created by OFCCP, available here. OFCCP will post a notice on its Web site to let contractors know when the updated “EEO is the Law” poster is available for use.
Restrooms
- How is restroom access affected by Executive Order 11246?
Contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.
Types of Discrimination
- Will OFCCP accept complaints of “disparate impact” discrimination on the basis of sexual orientation and gender identity?
Yes. OFCCP will accept complaints of sexual orientation and gender identity discrimination that allege facially neutral policies or practices that have the effect of discriminating on the basis of sexual orientation and/or gender identity.
Intersection of State and Local Nondiscrimination Laws
- How does Executive Order 11246 affect employers in jurisdictions that already prohibit discrimination on the basis of sexual orientation and/or gender identity?
As with state and local laws prohibiting employment discrimination on other bases, Executive Order 11246 and its implementing regulations do not generally preempt state and local prohibitions on discrimination on the basis of sexual orientation and gender identity. The Executive Order sets a “floor” in terms of protection against discrimination on the basis of sexual orientation or gender identity. If state or local law provides greater protections to applicants or employees, the Executive Order does not generally relieve a contractor from its obligations under that law.
Relation to Title IX
- There are many colleges and universities that are federal contractors. How does the Executive Order apply to those educational institutions that are federal contractors?
Because Executive Order 11246 and its implementing regulations prohibit discrimination in employment, the prohibition on sexual orientation and gender identity discrimination will apply to the employment practices of covered educational institutions. Executive Order 11246 also applies to certain students who are employed by educational institutions. OFCCP follows Title VII principles in determining whether an allegation of discrimination under Executive Order 11246 relates to a student’s status as an employee.
However, OFCCP regulations do not address discrimination against current or prospective students in education programs or activities. To the extent schools, colleges, and universities have questions about their obligations under Title IX, please contact the Department of Education’s Office for Civil Rights (http://www2.ed.gov/about/offices/list/ocr/index.html).
Employee Benefits
- Is a contractor required to provide fringe benefits to an employee’s same–sex spouse? What about employees in civil unions or domestic partnerships?
Contractors may choose to offer benefits to a range of beneficiaries, including, but not limited to, an employee’s spouse. Contractors that choose to provide benefits to spouses are required to provide the same benefits to employees married to same–sex spouses as provided to employees with different–sex spouses. Additionally, contractors cannot deny same–sex partners in civil unions or domestic partnerships the same benefits they provide to different-sex partners in such relationships. - How do OFCCP’s EO 11246 regulations address transition–related health benefits?
Discrimination based on gender identity in the provision of fringe benefits falls within the scope of EO 11246 and its implementing regulations. EO 11246 and its regulations have long banned discrimination in rates of pay and other forms of compensation, which include all manner of employee benefits, such as health benefits.
As amended, the nondiscrimination requirements of EO 11246 obligate contractors to ensure that coverage for healthcare services be made available on the same terms for all individuals for whom the services are medically appropriate, regardless of sex assigned at birth, gender identity, or recorded gender. For example, where a transgender man needs medical treatment for ovarian cancer, a contractor may not deny coverage based on the individual’s identification as male. In addition, an explicit, categorical exclusion of coverage for all care related to gender dysphoria or gender transition is facially discriminatory because such an exclusion singles out services and treatments for individuals on the basis of their gender identity or transgender status, which violates EO 11246’s prohibitions on both sex and gender identity discrimination.
In evaluating whether the denial of coverage of a particular service, where an individual is seeking the service as part of a gender transition, is discriminatory treatment, OFCCP applies the same basic principles of antidiscrimination law as it does with other terms and benefits of employment. This means that OFCCP asks whether there is a legitimate, nondiscriminatory reason for such denial or limitation that is not a pretext for discrimination, for example.
Visa Denials and Related Issues
- OFCCP’s regulations require, in part, that contractors inform both OFCCP and the U.S. State Department when a country in which it does business denies a visa of entry to an employee or potential employee, and the contractor believes that that denial is based on sexual orientation or gender identity. If my company receives such a visa denial, who should we contact at OFCCP, and how do we contact the State Department?
OFCCP’s Visa Denials by Foreign Governments Web page explains who to contact at OFCCP, and how to contact the State Department should your company’s request for a visa be denied on the basis of sexual orientation or gender identity. This page also provides information about a country’s visa requirements, information regarding how to obtain assistance if your company is having difficulty obtaining a visa, and links to State Department Web pages providing information and travel tips for LGBT travelers.