On
April 14, SHRM submitted
comments to the Office of Federal Contract Compliance Programs’
(OFCCP) proposal to revise its sex discrimination guidelines under Executive
Order 11246. SHRM supports updating the guidelines, which are more than 40
years old, to reflect statutory amendments to Title VII and binding judicial
interpretations of the law. Unfortunately, the proposal exceeds this objective
by including unsupported theories of discrimination and categorically labeling
some conduct as per se unlawful without any legal basis or authority.
In
addition to pointing out that OFCCP does not have the authority to promulgate
interpretive regulations that have the full force and effect of law, as they
attempt to do with this proposal, the comment also makes several
recommendations to the agency:
· In light of the March 25 Supreme Court ruling in Young v.
United Parcel Service, OFCCP should refrain from incorporating EEOC’s
recently-released pregnancy guidance which was invalidated by the Court in
Young;
· Revise the NPRM to make clear that the examples used represent
conduct that might be discriminatory under certain circumstances, rather than
presenting them as per se unlawful;
· Clarify that not all sex-referent job titles, such as “foreman,”
constitute discrimination;
· Remove the section on discriminatory compensation because
compensation discrimination is already identified as a prohibited activity. As
currently written, the NPRM implies that Executive Order 11246 and Title VII
mandate across-the-board pay equity even when legitimate, nondiscriminatory
reasons justify pay differentials;
· Issue separate guidance on gender identity and sexual
orientation, which were included in Executive Order 11246 as separate bases for
discrimination, rather than including them as a subset of sex discrimination.
At an
April 15 meeting titled “EEOC at 50: Confronting Racial and Ethnic
Discrimination in the 21st Century Workplace” held at Miami Dade
College, SHRM member Iliana Castillo-Frick (who serves as Vice-Provost of HR at
the college and is pictured above at left with EEOC chair Jenny Yang),
testified on SHRM’s behalf. The meeting marked the first public meeting held by
the Commission outside of Washington, D.C. in more than a decade. The meeting
focused on identifying the obstacles that remain to combating racial and ethnic
discrimination 50 years after the passage of Title VII of the Civil Rights Act.
SHRM’s testimony
focused on how modern concepts of diversity have evolved beyond
affirmative action and how diversity and inclusion programs help organizations
build a skill-based workforce.
- See more at: http://www.shrm.org/advocacy/governmentaffairsnews/hrissuesupdatee-newsletter/pages/042015_2.aspx?
Source: SHRM Government Issues Monthly Newsletter
This information is intended to be
educational and should not be considered legal advice on any specific matter.
