Jun 24, 2015

By David Warner

Federal contractors are required to solicit demographic information from their applicants and employees for purposes of complying with evolving obligations imposed by an ever increasing number of Executive Orders.

On December 3, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a new rule prohibiting federal contractors from discriminating on the basis of gender identity or sexual orientation. Per the OFCCP, “gender identity” refers to one’s internal sense of gender, may or may not correspond to the sex assigned at birth, and may or may not be visible to others. “Sexual orientation” is defined to refer to an individual’s physical, romantic or emotional attraction to people of the same and/or opposite gender. So the OFCCP’s rule and guidance would appear to define Caitlyn as a self-confessed, female heterosexual, albeit one with a preference for other women. (http://www.usmagazine.com/celebrity-news/news/bruce-jenner-on-gender-identity-vs-sexuality-its-apples-and-orange-2015244). But fear not, the OFCCP rule does not require contractors to ask applicants and employees to self-identify sexual orientation or gender identity, although the rule permits contractors to do so. (http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html#Q6). Who’s first?!?

And what of reporting for purposes of your EEO-1 or written affirmative action plan? There is, in fact, a clear answer to that question as far as the OFCCP is concerned. Specifically, it is the policy of the agency that deference should be given to an individual’s self-identification and that self-identification should not be questioned or overridden by an employer based on the employer’s visual observation. (http://www.dol.gov/ofccp/regs/compliance/faqs/emprfaqs.htm#Q26). Thus, for OFCCP purposes, should they self-identify as such, Caitlyn would indeed be female and Rachel would indeed be Black or African American (Not Hispanic or Latino).

The national conversation around gender identity is just beginning; and, if the conversation around racial identity is any indication, do not expect a quick resolution. Recall that in 1892 Homer Plessy of “separate but equal” fame was only one eighth African American and was specifically selected by his legal team to challenge Louisiana’s Separate Car Act because of his fair skin and to underscore what some scholars have called the “uniquely American ‘one drop rule.’” (http://www.pbs.org/wnet/african-americans-many-rivers-to-cross/history/plessy-v-ferguson-who-was-plessy/).

Times have certainly changed, given that for OFCCP compliance reporting purposes not even “one drop” is required today.

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