Feds Impose LGBT Affirmative Action on Federal Contractors

By Jon Hyman

Dec. 18, 2014

If you are a federal contractor of subcontractor, in four months you will have new affirmative action obligations relating to sexual orientation and gender identity.

According to a Final Rule issued last week by the Office of Federal Contract Compliance Programs, beginning  April 5, 2015, federal contractors and subcontractors must include sexual orientation and gender identity in their affirmative action plans.

According to the Rule, which implements Executive Order 13762, federal contractors and subcontractors must:

  • Take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
  • Include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
  • Update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
  • Post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Notably, and different than affirmative action for other protected traits, the Rule does not require contractors to set placement goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze any data on these bases (although the OFCCP will consider statistical and non-statistical data in determining whether contractors have met their nondiscrimination obligations).

While Congress continues to drag it feet  on Employment Non-Discrimination Act, the Obama Administration continues to do what it can to extend equal employment opportunity for all.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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