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OFCCP Final Rules

Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity byContractors and Subcontractors   [12/9/2014]
[PDF]
Federal Register, Volume 79 Issue 236 (Tuesday, December 9, 2014)
[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Rules and Regulations]
[Pages 72985-72995]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28902]


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DEPARTMENT OF LABOR

Office of Federal Contract Compliance Programs

41 CFR Parts 60-1, 60-2, 60-4, and 60-50

RIN 1250-AA07


Implementation of Executive Order 13672 Prohibiting 
Discrimination Based on Sexual Orientation and Gender Identity by 
Contractors and Subcontractors

AGENCY: Office of Federal Contract Compliance Programs, Labor.

ACTION: Final rule.

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SUMMARY: The Office of Federal Contract Compliance Programs (OFCCP) is 
revising the regulations implementing Executive Order (EO) 11246, as 
amended, in accordance with Executive Order (EO) 13672, ``Further 
Amendments to Executive Order 11478, Equal Employment Opportunity in 
the Federal Government, and Executive Order 11246, Equal Employment 
Opportunity,'' which was signed by President Barack Obama on July 21, 
2014. EO 13672 amended EO 11246, which previously only prohibited 
discrimination by Federal contractors and subcontractors on the bases 
of race, color, religion, sex, and national origin and required them to 
take affirmative measures to prevent discrimination on those bases from 
occurring. More specifically, EO 13672 amended section 202 and section 
203 of EO 11246, by substituting the phrase ``sex, sexual orientation, 
gender identity, or national origin'' for ``sex or national origin.'' 
This final rule implements EO 13672 by making the same substitution 
wherever the phrase ``sex or national origin'' appears in the 
regulations implementing EO 11246.

DATES: Effective date: These regulations are effective April 8, 2015.
    Applicability date: These regulations will apply to Federal 
contractors who hold contracts entered into or modified on or after 
April 8, 2015.

FOR FURTHER INFORMATION CONTACT: Debra A. Carr, Director, Division of 
Policy and Program Development, Office of Federal Contract Compliance 
Programs, at 200 Constitution Avenue, NW., Room C-3325, Washington, DC 
20210, or by calling (202) 693-0103 (voice) or (202) 693-1337(TTY). The 
alternative formats available for copies of this rule are large print 
and electronic file on computer disk. The rule also is available on the 
Internet on the Regulations.gov Web site at http://www.regulations.gov 
or on the OFCCP Web site at http://www.dol.gov/ofccp.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The Office of Federal Contract Compliance Programs (OFCCP) is a 
civil rights and worker protection agency that enforces Executive Order 
11246, as amended, which, prior to the issuance of Executive Order 
13672, prohibited employment discrimination by companies doing business 
with the Federal Government on the bases of race, color, religion, sex, 
and national origin and required those companies to take affirmative 
steps to ensure nondiscrimination on those grounds.\1\
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    \1\ OFCCP also enforces the Vietnam Era Veterans' Readjustment 
Assistance Act of 1974, as amended, 38 U.S.C. 4212, which requires 
affirmative action and prohibits employment discrimination against 
certain protected veterans and section 503 of the Rehabilitation Act 
of 1973, as amended, which prohibits discrimination on the basis of 
disability and requires affirmative action on behalf of qualified 
individuals with disabilities.
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    On July 21, 2014, President Barack Obama issued EO 13672, ``Further 
Amendments to Executive Order 11478, Equal Employment Opportunity in 
the Federal Government, and Executive Order 11246, Equal Employment

[[Page 72986]]

Opportunity.'' The new EO added sexual orientation and gender identity 
to the prohibited bases of discrimination in EO 11246 (``the protected 
bases'').\2\
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    \2\ The White House, FACT SHEET: Taking Action to Support LGBT 
Workplace Equality is Good For Business, (July 21, 2014), http://www.whitehouse.gov/the-press-office/2014/07/21/fact-sheet-taking-action-support-lgbt-workplace-equality-good-business-0 (last 
accessed Nov. 28, 2014).
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    In pertinent part, Section 2 of EO 13672 amended numbered 
paragraphs 1 and 2 of section 202 and paragraph (d) of section 203 of 
EO 11246. Section 202 sets forth language that Government agencies must 
insert into all covered contracts and prime contractors must insert 
into covered subcontracts (``the Equal Opportunity Clause''). Prior to 
the issuance of EO 13672, numbered paragraph 1 of the Equal Opportunity 
Clause prohibited discrimination and required that contractors take 
affirmative action to ensure that job applicants and employees are 
treated without regard to their race, color, religion, sex, or national 
origin.
    EO 13672 amended section 202, numbered paragraph 1, by adding 
``sexual orientation'' and ``gender identity'' to the bases upon which 
Federal contractors \3\ are prohibited from discriminating against job 
applicants and employees. It further amended the paragraph by requiring 
that contractors take affirmative action to ensure that applicants are 
employed, and that employees are treated, without regard to their 
sexual orientation or gender identity during their employment. EO 13672 
states, specifically, that section 202, numbered paragraph 1, of EO 
11246 is ``revised by substituting `sex, sexual orientation, gender 
identity or national origin' for `sex, or national origin.'''
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    \3\ Unless otherwise stated, the term ``contractor'' includes 
both ``contractors'' and ``subcontractors,'' and the term 
``contract'' also includes ``subcontracts.''
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    Section 202, numbered paragraph 2, is also part of the Equal 
Opportunity Clause. This paragraph requires that solicitations or 
advertisements for employees state that the contractor considers all 
applicants for employment without regard to any of the protected bases. 
Executive Order 13672 specifically amended this paragraph by 
substituting ``sex, sexual orientation, gender identity, or national 
origin'' for ``sex or national origin.''
    Section 203(d) of EO 11246 provides that prospective contractors 
may be required by the Secretary of Labor to provide a statement from 
any labor union or any agency referring workers or providing or 
supervising apprenticeships or other training with which the 
prospective contractor deals stating that their practices and policies 
do not discriminate in employment on any of the protected bases, as 
part of their Compliance Report. Executive Order 13672 amended the text 
of 203(d) by substituting ``sex, sexual orientation, gender identity, 
or national origin'' for ``sex or national origin.''
    Section 3 of EO 13672 directs the Secretary of Labor to ``prepare 
regulations to implement the requirements of section 2'' within 90 days 
of the date of the order. Section 5 of EO 13672 provides that section 2 
applies to Federal contracts ``entered into on or after the effective 
date of the rules'' promulgated by the Department of Labor in 
accordance with section 3 of the order. The existing OFCCP regulation, 
modeled on language from EO 11246 itself, defines a ``Government 
contract'' as ``any agreement or modification thereof between any 
contracting agency and any person * * *'', and thus this rule also 
applies to contracts modified on or after the effective date of these 
regulations. See 41 CFR 60-1.3 (emphasis added). Accordingly, revisions 
have been made to 41 CFR part 60-1--Obligations of Contractors and 
Subcontractors, 41 CFR part 60-2--Affirmative Action Programs, 41 CFR 
part 60-4--Construction Contractors--Affirmative Action Requirements, 
and 41 CFR part 60-50--Guidelines on Discrimination because of Religion 
or National Origin.
    The regulatory changes made by this final rule directly implement 
the changes to EO 11246 made by EO 13672; specifically, the replacement 
of the words ``sex, or national origin'' with the words ``sex, sexual 
orientation, gender identity, or national origin'' throughout the EO 
11246 implementing regulations.\4\ No other regulatory changes are 
being made.
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    \4\ While the text of 41 CFR 60-1.11 contains the full list of 
protected characteristics, that section has been indefinitely 
suspended as per Notice of Further Deferral of Effective Dates of 
Regulations, 46 FR 18951 (Mar. 27, 1981) and Payment of Membership 
Fees and Other Expenses to Private Organizations; Proposed Rule 
Withdrawal, 46 FR 19004 (Mar. 27, 1981), and thus cannot be amended.
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    The only affirmative action requirements affected by this final 
rule are those contained in 41 CFR part 60-1. Contractors satisfy this 
obligation by including the updated Equal Opportunity Clause in new or 
modified subcontracts and purchase orders, ensuring that applicants and 
employees are treated without regard to their sexual orientation and 
gender identity, and by updating the equal opportunity language used in 
job solicitations and posting updated notices. See 41 CFR 60-1.4(a) 
paragraphs 1, 2, and 7 of the Equal Opportunity Clause, and 60-
1.4(b)(1) paragraphs 1, 2, and 7 of the Equal Opportunity Clause. This 
final rule makes no changes to the provisions governing reporting and 
information collection set forth at 41 CFR 60-1.7 and 60-1.12(c). The 
obligations updated by this final rule are separate from the additional 
affirmative action requirements set forth in 41 CFR parts 60-2 and 60-4 
that comprise the contents of contractors' written affirmative action 
programs. No changes are being made to the written affirmative action 
program requirements of 41 CFR part 60-2, or the affirmative action 
requirements contained in Sec.  60-4.3(a)(7) of 41 CFR part 60-4, and 
thus those programs will continue to be limited to gender, race, and 
ethnicity. While the terms ``sexual orientation'' and ``gender 
identity'' will now appear in two sections within part 60-2 that 
include the full list of protected bases (in Sec. Sec.  60-2.16(e)(2) 
and 60-2.35), the final 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. Section 60-2.16(e)(2) simply states that placement goals 
for women and minorities under the existing regulations may not be used 
as a basis for discrimination on one of the bases protected by EO 
11246, including sexual orientation and gender identity. The affected 
provision of Sec.  60-2.35 indicates that both statistical and non-
statistical data will be considered in determining whether contractors 
have complied with their nondiscrimination obligations; it does not 
require contractors to collect any statistical data.\5\
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    \5\ In accordance with its long-standing practice, OFCCP will 
continue to utilize the analytical framework of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., to determine 
whether discrimination has occurred under Executive Order 11246. See 
OFCCP, FCCM Sec.  2H01 (July 2013), available at http://www.dol.gov/ofccp/regs/compliance/fccm/FCCM_FINAL_508c.pdf (last accessed 
November 28, 2014); see also OFCCP v. Honeywell, 77-OFC-3, Sec'y of 
Labor Dec. and Order on Mediation, June 2, 1993, at 14 and 16 & 
Sec'y of Labor Dec. and Remand Order, March 2, 1994; OFCCP v. 
Illinois Institute of Technology, 80-OFC-11, Sec'y Final Order, 
December 23, 1982; OFCCP v. Firestone, 80-OFC-15, Sec'y Dec., July 
13, 1980, rev'd on other grounds, Firestone v. Marshall, 507 F. 
Supp. 1330 (E.D. Tex. 1981).
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    In addition, as section 204(c) of EO 11246, which provides an 
exemption for religious organizations, was not amended by EO 13672, 
this rule does not make changes to the corresponding regulation at 41 
CFR 60-1.5(a)(5), which

[[Page 72987]]

tracks the language of the Executive Order.\6\
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    \6\ This regulation states: ``Section 202 of Executive Order 
11246, as amended, 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.''
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    Lastly, although EO 13672 adds ``gender identity'' as an 
independent basis upon which discrimination is prohibited under EO 
11246, nothing in EO 13672 or this final rule diminishes the pre-
existing coverage of discrimination on the basis of gender identity or 
discrimination on the basis of transgender status as a form of sex 
discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); 
Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012); OFCCP 
Directive 2014-02, ``Gender Identity and Sex Discrimination,'' 
effective August 19, 2014 (available online at http://www.dol.gov/ofccp/regs/compliance/directives/dir2014_02.html).

Publication as a Final Rule

    OFCCP is promulgating this final rule without notice or an 
opportunity for public comment (``notice and comment'') because the 
Administrative Procedure Act's (``APA'') ``good cause'' exemption 
allows the agency to dispense with notice and comment when 
``impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b)(B).\7\ Notice and comment are unnecessary when changes to 
regulations merely restate the changes in the enabling authority they 
implement. Gray Panthers Advocacy Committee v. Sullivan, 936 F.2d 1284, 
1291 (D.C. Cir. 1991), citing Komjathy v. National Transportation 
Safety Board, 832 F.2d 1294, 1296-97 (D.C. Cir. 1987). Because these 
final rules merely amend 41 CFR parts 60-1, 60-2, 60-4, and 60-50 to 
conform with the amendments made to EO 11246 by EO 13672, amendments as 
to which OFCCP lacks discretion as to whether to make, notice and 
comment are unnecessary and the ``good cause'' exemption applies to 
this final rule.
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    \7\ Although the Administrative Procedure Act's notice and 
comment requirement does not apply to matters relating to public 
contracts, 5 U.S.C. 553(a), it is the policy of the Department of 
Labor not to rely upon that exemption. See 29 CFR 2.7.
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    OFCCP has previously relied on the ``good cause'' exemption in 
amending its rules under EO 11246 without notice and comment to 
implement EO 11375, which amended Executive Order 11246 to add sex as a 
basis of prohibited discrimination and replaced the term ``creed'' with 
``religion;'' OFCCP's rule amended the regulations in the same way. 
Obligations of Contractors and Subcontractors; Miscellaneous 
Amendments; Final Rule; 34 FR 744 (Jan. 17, 1969). Similarly, when EO 
13279 added a religious exemption to EO 11246, OFCCP promulgated a rule 
without notice and comment under the good cause exemption by restating 
the religious exemption as a new provision in its regulations. 
Affirmative Action Obligations of Government Contractors, Executive 
Order 11246, as Amended; Exemption for Religious Entities; Final Rule; 
68 FR 56392 (Sept. 30, 2003).

Sections Revised

    Several sections in 41 CFR chapter 60 are being revised by this 
final rule: Sec. Sec.  60-1.1, 60-1.4(a)(1), 60-1.4(a)(2), 60-
1.4(b)(1)(1), 60-1.4(b)(1)(2), 60-1.8, 60-1.10, 60-1.20, 60-1.41(a), 
60-1.41(c), 60-1.42(a), 60-2.16(e)(2), 60-2.35, 60-4.3(a)(10), and 60-
50.5. As noted above, in each of these sections, wherever the words 
``sex, or national origin'' appear, they have been replaced with the 
words ``sex, sexual orientation, gender identity, or national origin,'' 
as required by EO 13672. No other revisions have been made. However, 
for the convenience of the reader, the entire section or paragraph 
containing the revised language is reprinted in this final rule.

Regulatory Procedures

Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives, and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity, dignity, 
and fairness concerns). Here, the specific changes being made to the 
regulations are required by the amendments to Executive Order 11246 
made by Executive Order 13672, and thus no less burdensome alternatives 
existed. Although this rule is not economically significant within the 
meaning of Executive Order 12866, it has been reviewed by the Office of 
Management and Budget (OMB).
    This rule replaces the words ``sex, or national origin'' with the 
words ``sex, sexual orientation, gender identity, or national origin'' 
wherever they appear in the current regulations. No other revisions 
have been made.
    Benefits of this rule include equity, fairness, and human dignity. 
Such benefits are difficult to quantify but nevertheless are important 
and specifically recognized by Executive Order 13563. In addition, 
employment discrimination on the basis of sexual orientation or gender 
identity, like employment discrimination on other bases prohibited by 
EO 11246, may have economic consequences. It, like other forms of 
discrimination, may lead to reduced productivity and lower profits. 
Contractor employees who face discrimination on the basis of sexual 
orientation or gender identity on the job may experience lower self-
esteem, greater anxiety and conflict, and less job satisfaction. Such 
employees may also receive less pay and have less opportunity for 
advancement. Job applicants who experience discrimination on the basis 
of sexual orientation or gender identity may not be considered for a 
job at all, even though they may be well-qualified. This rule is 
designed to address these problems to ensure a fair and inclusive work 
environment in the context of Federal contractors.
    The expected costs to employers resulting from this rule are: 
Regulatory familiarization, incorporation of the modified new language 
into the equal opportunity clauses they currently use in covered 
subcontracts and purchase orders, the reporting of any visa denials, 
and administrative costs associated with providing required notices to 
employees and modifying existing job posting templates. OFCCP expects 
that other changes made by this rule--such as the prohibition of 
segregation of facilities on the basis of sexual orientation or gender 
identity will have minimal costs to employers. This rule does not 
require contractors to set goals for employing persons on the basis of 
sexual orientation or gender identify, collect and maintain statistics 
on applicants or employees on the basis of sexual orientation or gender 
identity, or conduct statistical analysis of applicants or employees on 
the basis of sexual orientation or gender identity. Therefore, the 
costs of performing such activities are not included in this analysis.

Assumptions

    The estimated labor cost to contractors and subcontractors is based 
on U.S. Department of Labor, Bureau of Labor Statistics (BLS) data in 
the publication ``Employer Costs for Employee Compensation'' issued in 
December 2013, which lists total

[[Page 72988]]

compensation for management, professional, and related occupations as 
$51.58 per hour and for administrative support as $24.23 per hour. 
OFCCP estimates that 25 percent of the burden will fall to management, 
professional, and related occupations and 75 percent will be 
administrative support.
    For purposes of analyzing the economic effect of rules on federal 
contractors, OFCCP typically assumes 500,000 contractor companies or 
firms may be affected by these provisions because 500,000 contractor 
firms are registered in the General Service Administration's System for 
Award Management (SAM). OFCCP recognizes that using SAM likely results 
in an overestimation of the number of covered contractors and 
subcontractors. For example, the SAM data includes recipients of 
Federal grants and Federal financial assistance, none of which are 
covered by this Rule. The SAM data also includes firms that do not meet 
the jurisdictional dollar threshold of EO 11246. In addition, a large 
percentage of Federal contractors already prohibit discrimination based 
on sexual orientation and gender identity and/or operate in states or 
localities that do, and will therefore already be in compliance with 
the requirements of this Rule. This approach is consistent with the 
approach used in other recent OFCCP and WHD rulemakings.\8\ However, 
the estimate of 500,000 contractor companies or firms does not include 
new companies and firms that become contractors in the future. OFCCP 
does not currently have a reliable data source or method for estimating 
the number of new contractor companies or firms each year.
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    \8\ There is at least one reason to believe the SAM data yields 
an underestimate of the number of entities affected by this rule and 
other reasons to believe the data yields an overestimate. SAM does 
not necessarily include all subcontractors, thus potentially leading 
to an underestimate, but this limitation of the data is offset 
somewhat because of the overlap among contractors and 
subcontractors; a firm may be a subcontractor on some activities but 
have a contract on others and thus be included in the SAM data.
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Cost of Regulatory Familiarization

    OFCCP expects that human resources or personnel managers at each 
contractor establishment or firm will spend time becoming familiar with 
the amended requirements. In order to minimize the burden of these 
changes, OFCCP will publish compliance assistance materials such as, 
but not limited to, fact sheets and ``Frequently Asked Questions.'' 
OFCCP will also host webinars for the contractor community that will 
describe the amended requirements and engage in outreach to identify 
any specific challenges contractors believe they face, or may face, 
when complying with the requirements.
    Therefore, OFCCP estimates that it will take 60 minutes or 1 hour 
for a management professional at each contractor establishment to 
either read the compliance assistance materials provided by OFCCP or 
participate in an OFCCP webinar to learn more about the amended 
requirements. Consequently, the estimated burden for rule 
familiarization is 500,000 hours (500,000 contractor companies x 1 hour 
= 500,000 hours). We calculate the total estimated cost as $25,790,000 
(500,000 hours x $51.58/hour = $25,790,000).

Cost of Specific Provisions

    Sections 60-1.4(a) and (b) and 60-4.3(a) require contractors to 
incorporate this modified new language into the equal opportunity 
clauses they currently use in covered subcontracts and purchase orders. 
The amended Equal Opportunity Clause may be incorporated by reference. 
OFCCP estimates that contractors and subcontractors will spend 
approximately 15 minutes modifying existing contract templates to 
ensure the additional language is added. The estimated burden for this 
provision is 125,000 hours (500,000 contractors x 0.25 hours). The 
estimated cost for incorporating the changes into the Equal Opportunity 
Clause is $3,883,438 ((125,000 hours x 0.25 x $51.58) + (125,000 x 0.75 
x $24.23) = $3,883,438).
    Sections 1.4(a)(1) and 1.4(b)(1) require contractors to notify job 
applicants and employees of their nondiscrimination policy by posting 
specific notices, provided by contracting officers, in conspicuous 
places. OFCCP recognizes that this rule requires contractors to update 
their existing postings to comply with the revised regulations. OFCCP 
estimates that it will take 15 minutes (or 0.25 hours) for contractors 
to locate the revised notice on OFCCP's Web site and one hour to print, 
copy and replace current posters with the revised notice. Therefore, 
OFCCP estimates that the burden of this provision is 625,000 hours 
(500,000 contractor companies x 1.25 hours). OFCCP assumes that 95 
percent of the time for this activity (finding the notice online; 
printing, copying, and posting the notice) will be at the 
administrative support level and 5 percent (reviewing the notice) will 
be at the management, professional, and related occupations level. 
Thus, the cost for this provision is $15,998,438 ((625,000 hours x 0.05 
x $51.58) + (625,000 hours x 0.95 x $24.23) = $15,998,438). OFCCP 
believes that contractors will have some operations and maintenance 
costs associated with this provision and those costs are detailed in 
the Operations and Maintenance discussion, below.
    Sections 60-1.4(a), paragraph 2 of the Equal Opportunity Clause, 
and 1.4(b), paragraph 2 of the Equal Opportunity Clause, require 
contractors to expressly state in solicitations for employees that all 
qualified applicants will receive consideration for employment without 
regard to race, color, religion, sex, sexual orientation, gender 
identity, or national origin. Section 60-1.41(a) details the options 
available to contractors for complying with this requirement, which 
range from stating in employment solicitations that ``all qualified 
applicants will receive consideration for employment without regard to 
race, color, religion, sex, sexual orientation, gender identity, or 
national origin'' to simply including the phrase ``an equal opportunity 
employer.'' \9\ While some contractors include the detailed list, 
others include the phrase ``equal opportunity employer.'' OFCCP 
estimates that 50 percent of contractors will include the detailed 
list, and the remainder will use ``an equal opportunity employer.'' 
Thus, OFCCP acknowledges that 50 percent or 250,000 contractors that 
include the detailed list will thus be affected by this change. OFCCP 
believes that contractors will modify their existing solicitation or 
job advertisement templates to incorporate the revised terminology. A 
substantial number of contractors are unlikely to see an increased 
cost, though, as most costs involved with advertisements and 
solicitations are not based on the number of words or specific words 
included. Therefore, OFCCP believes that the cost of the solicitation 
or advertisement will not be greatly impacted by adding the words 
``sexual orientation'' and ``gender identity'' to the advertisement. 
OFCCP believes that contractors will spend approximately 15 minutes 
modifying existing job posting templates to ensure the additional words 
are added. The burden for this provision is 62,500 hours (250,000 
contractors x 0.25

[[Page 72989]]

hours). The cost for incorporating the changes into the Equal 
Opportunity Clause is $1,941,719 ((62,500 hours x 0.25 x $51.58) + 
(62,500 x 0.75 x $24.23) = $1,941,719).
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    \9\ The other options include using an insignia approved by the 
Director of OFCCP in job advertisements and including a single 
advertisement in a group of advertisements which includes the 
statement that ``all qualified applicants will receive consideration 
for employment without regard to race, color, religion, sex, sexual 
orientation, gender identify, or national origin.'' Based on OFCCP's 
reviews of job advertisements, contractors typically use either the 
``equal opportunity employer'' tag line or include ``all qualified 
applicants will receive consideration for employment without regard 
to race, color, religion, sex, sexual orientation, gender identify, 
or national origin.''
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    Section 60-1.8 requires contractors to ensure that facilities 
provided for employees are not segregated by any of the covered bases. 
This rule adds sexual orientation and gender identity as prohibited 
bases of segregation in the existing provision. OFCCP believes that 
this modification will not incur additional burden, as the provision 
does not require contractors to modify or construct additional 
facilities, but rather only provide equal access to any facilities that 
exist.
    Section 60-1.10 prohibits contractors from discriminating against 
employees for work to be performed in the United States or abroad. It 
provides an exemption for employees hired outside the United States. 
Further, if a contractor is unable to obtain a visa of entry for an 
employee or potential employee to a country in which or with which it 
is doing business, and it believes that refusal is due to a basis 
covered by EO 11246, as amended by EO 13672, then the contractor must 
immediately notify the OFCCP and the Department of State. Neither OFCCP 
nor the current office directors or senior officials in the Department 
of State's Bureau of Political-Military Affairs have received any visa 
denial notifications related to the existing protected categories.
    There is no precise way of calculating how many LGBT employees of 
federal contractors will travel to foreign countries for work-related 
purposes. Although there is no single, authoritative source of labor 
force population data regarding sexual orientation and gender identity, 
separate independent surveys published between 2011 and 2014 estimate 
that between 2.3 and 4.0 percent of the U.S. population identify as 
LGBT.\10\ This represents approximately 3.6 to 6.2 million LGBT 
individuals in the civilian labor force, approximately 1.5 to 2.6 
million of who are employed by federal contractors.\11\ According to 
the Department of Commerce's International Trade Administration, 
4,875,000 U.S. residents departed the country for business or 
convention purposes in 2013, representing approximately 3.1 percent of 
the civilian labor force.\12\ In the absence of data as to what percent 
of the LGBT employees in the federal contractor workforce would depart 
the country for business or convention purposes, a conservative 
estimate is that 6.1 percent (double the rate of the general national 
civilian labor force) of LGBT employees in the federal contractor 
workforce may visit foreign countries for work purposes, yielding a 
total of 91,500 to 158,600 LGBT employees each year.
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    \10\ This estimated range is derived from four separate sources: 
(1) Brian W. Ward, Ph.D. et al., Centers for Disease Control and 
Prevention, Sexual Orientation and Health Among U.S. Adults: 
National Health Interview Survey, 2013 (July 15, 2014), http://www.cdc.gov/nchs/data/nhsr/nhsr077.pdf (last accessed Nov. 28, 2014) 
(Survey of approximately 35,000 adults, age 18 and over found 2.3 
percent identified as gay/lesbian or bisexual. An additional 1.1 
percent identified as ``something else.''); (2) Gary J. Gates and 
Frank Newport, The Gallup Organization, Special Report: 3.4% of U.S. 
Adults Identify as LGBT (October 18, 2012), http://www.gallup.com/poll/158066/special-report-adults-identify-lgbt.aspx?utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines (last 
accessed Nov. 28, 2014) (Gallup poll of a representative sample of 
120,000 adults conducted in 2012 found 3.4 percent identified as 
LGBT); (3) Movement Advancement Project, Center for American 
Progress, Human Rights Campaign, A Broken Bargain: Discrimination, 
Fewer Benefits, and More Taxes for LGBT Workers at 5 (June 2013), 
http://www.americanprogress.org/issues/lgbt/report/2013/06/04/65133/a-broken-bargain/ (last accessed Nov. 28, 2014) (2011 study 
aggregating results of five separate surveys conducted between 2004 
and 2009 found 3.5 percent of those surveyed identified as lesbian, 
gay, or bisexual and 0.3 percent identified as transgender); and (4) 
Jennifer C. Pizer, Brad Sears, Christy Mallory, and Nan D. Hunter, 
Evidence of Persistent and Pervasive Workplace Discrimination 
Against LGBT People: The Need for Federal Legislation Prohibiting 
Discrimination and Providing for Equal Employment Benefits, 45 Loy. 
L.A. L. Rev. 715, 717 (2012), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Pizer-Mallory-Sears-Hunter-ENDA-LLR-2012.pdf 
(last accessed Nov. 28, 2014) (analyzing a 2002 study from the 
National Survey of Family Growth finding 4 percent of the U.S. 
workforce identified as lesbian, gay, bisexual, or transgender).
    \11\ Recent BLS data indicates that in October 2014 there were 
approximately 156 million people in the civilian labor force. U.S. 
Department of Labor Bureau of Labor Statistics, Table A-1, 
Employment Status of the Civilian Population by Sex and Age, online 
at http://www.bls.gov/news.release/empsit.t01.htm (last accessed 
Nov. 28, 2014). The estimated range of LGBT workers in the civilian 
labor force was derived by applying the 2.3 to 4.0 percent range to 
the total number of people in the civilian labor force, while the 
estimated range of LGBT federal contractor workers was derived by 
applying the 2.3 to 4.0 percent range to the contractor work force 
data from SAM (65 million).
    \12\ U.S. Department of Commerce, International Trade 
Administration, National Travel and Tourism Office, 2013 U.S. 
Resident Travel: Business and Convention Travel, available at http://travel.trade.gov/outreachpages/download_data_table/2013-US-Business.pdf (last accessed Nov. 28, 2014). This data excludes U.S. 
resident travel to Canada. OFCCP does not believe the exclusion of 
Canadian travel will have any impact on the burden incurred.
---------------------------------------------------------------------------

    The International Trade Administration tracks patterns as to what 
destinations United States residents travel to, both in general and for 
work purposes.\13\ There is very limited precedent for LGBT individuals 
being denied entry on the basis of sexual orientation or gender 
identity. There are two countries with immigration laws that prohibit 
entry of ``homosexual'' persons, but there is no indication that these 
laws are actively enforced. Statistically, therefore, the percent of 
United States resident business travel to countries where LGBT 
individuals may face denial of entry on the basis of sexual orientation 
or gender identity, due to law or custom, is less than 1 percent.\14\ 
As an overestimate, presuming all LGBT federal contractor employees who 
visit these countries for work purposes are denied a visa on the basis 
of sexual orientation or gender identity, this would lead to 915 to 
1,586 incidences (or 1 percent of total LGBT employees who travel 
abroad for business) per year. To adjust this calculation from an 
incidence count to the estimate of burden on contractors, OFCCP assumes 
a ratio of one incident per contractor, thus an estimated 1,586 
contractors could be impacted by this provision.
---------------------------------------------------------------------------

    \13\ See id.; U.S. Department of Commerce, International Trade 
Administration, National Travel and Tourism Office, 2013 United 
States Resident Travel Abroad, available at http://travel.trade.gov/outreachpages/download_data_table/2013_US_Travel_Abroad.pdf (last 
accessed Sept. 30, 2014).
    \14\ This figure is derived from tables in the two above-cited 
International Trade Administration reports.
---------------------------------------------------------------------------

    OFCCP estimates that it will take two hours for a contractor to 
identify from the Federal Acquisition Regulation (FAR) a contact at the 
Department of State, and prepare and send the notification of visa 
denial to the Department of State and OFCCP. Therefore, the burden is 
3,172 hours per year (1,586 contractors x 2 hours). Because of the 
nature of this provision, OFCCP estimates that 50 percent of the time 
addressing this provision will be management and 50 percent of the time 
will be administrative. Thus, using the high end of the estimate, the 
cost of this provision is estimated as $120,235 ((3,172 hours x 0.50 x 
$51.58) + (3,172 hours x 0.50 x $24.23) = $120,235).
    The revised regulations incorporate the terms ``sexual 
orientation'' and ``gender identity'' into Sec. Sec.  60-2.16 and 60-
4.3. As modified, these provisions state that goals and timetables or 
affirmative action standards shall not be used to discriminate against 
any person because of their race, color, religion, sex, sexual 
orientation, gender identity, or national origin. Because these 
incorporations merely clarify that affirmative action programs may not 
be used to carry out discrimination prohibited by other sections of the 
regulations, and do not require any

[[Page 72990]]

change in contractors' procedures or practices, OFCCP believes that 
there are no additional burdens associated with this modification.
    Section 60-2.35 states that each contractor's compliance status 
with EO 11246 and its implementing regulations will be determined by 
analysis of statistical data and other non-statistical information. The 
change in the regulation adds sexual orientation and gender identity to 
the prohibited bases of discrimination. However, as with religion, 
contractors are not required to collect, keep, or report data on gender 
identity or sexual orientation. As this provision merely explains 
OFCCP's processes, no additional burden is incurred.
    Section 60-50.5 clarifies that contractors may not use the 
Guidelines contained in part 60-50 to discriminate against qualified 
applicants and employees on any of the protected bases. The revision to 
Sec.  60-50.5 incorporates the terms ``sexual orientation'' and 
``gender identity'' into the list of prohibited bases of 
discrimination. This provision does not require any action by 
contractors, and thus does not incur any additional burden.

Operations and Maintenance Costs

    OFCCP estimates that contractors will have some operations and 
maintenance costs in addition to the burden calculated above. Sections 
60-1.4(a), paragraph 1 of the Equal Opportunity Clause, and 60-1.4(b), 
paragraph 1 of the Equal Opportunity Clause, require contractors to 
post a specific notice provided by the contracting officer for 
employees and applicants. Section 60-1.42 provides the text included in 
the notice. OFCCP estimates that contractors will comply with this 
provision by posting the notice on bulletin boards. The notice is 
publicly available on OFCCP's Web site and prints on 2 letter-sized 
sheets of paper. OFCCP assumes that on average these contractors will 
post it on 10 bulletin boards. Therefore, OFCCP estimates the 
operations and maintenance cost of this recurring burden to be $800,000 
(500,000 x 2 pages x 10 copies x $0.08 = $800,000).

Summary of Total and Annual Costs

    Contractors affected by this rule will have different burdens based 
on whether they are required to report to the Department of State and 
OFCCP. Thus, in summarizing the costs, Table 1 details the burden for 
those contractors that are affected by the visa denial reporting 
provision (``the visa reporting provision''). The recurring cost in 
Table 1 is limited to reporting denied visas to the Department of State 
and OFCCP. There are no recurring burdens or costs for ensuring that 
facilities are not segregated, contractor funded or reimbursed 
memberships are nondiscriminatory, placement goals do not provide a 
prohibited preference, nor are there any such burdens or costs 
associated with with the non-discrimination provisions of Part 60-50, 
or by the fact that OFCCP's determination of compliance considers both 
statistical data and non-statistical data. Table 2 details the burden 
for those contractors that are not affected by the visa reporting 
provision. There are no recurring burdens or costs for this reporting 
provision; however, there are one-time costs.

Table 1--Burden and Costs for Contractors Affected by the Visa Reporting
                                Provision
------------------------------------------------------------------------
                 Section                   Burden hours        Costs
------------------------------------------------------------------------
Estimated One-Time Burden:
    Regulatory Familiarization..........           1,586         $81,806
    Amending the Equal Opportunity                   397          12,334
     Clause.............................
    Posting the notice for employees and           1,983          50,760
     applicants.........................
    Amending the tag line for                        198           6,151
     solicitations and job
     advertisements.....................
                                         -------------------------------
        One-time Burden.................           4,164         151,051
------------------------------------------------------------------------
Estimated Recurring Burden:
    Reporting denied visas to Department           3,172         120,235
     of State and OFCCP.................
    Total Annual Recurring Burden.......           3,172         120,235
    Estimated Operations and Maintenance               0           2,538
                                         -------------------------------
        Total Burden and Cost of the               7,336         273,824
         Rule...........................
------------------------------------------------------------------------


   Table 2--Burden and Costs for Contractors Not Affected by the Visa
                           Reporting Provision
------------------------------------------------------------------------
                 Section                   Burden hours        Costs
------------------------------------------------------------------------
Estimated One-Time Burden:
    Regulatory Familiarization..........         498,414     $25,708,194
    Amending the Equal Opportunity               124,604       3,871,135
     Clause.............................
    Posting the notice for employees and         623,018      15,947,703
     applicants.........................
Amending the tag line for solicitations           62,302       1,935,567
 and job advertisements.................
                                         -------------------------------
        One-time Burden.................       1,308,338      47,462,599
        Total Annual Recurring Burden...               0               0
        Estimated Operations and                       0         797,462
         Maintenance....................
                                         -------------------------------
            Total Burden and Cost of the       1,308,338      48,260,061
             Rule.......................
------------------------------------------------------------------------

    OFCCP estimates the total cost of the rule at $273,824 or $173 per 
affected contractor for those contractors affected by the visa 
reporting provision and $48,260,061 or $97 per contractor for those 
contractors not affected by the visa reporting provision. If combined, 
the total cost of the rule would be $48,533,885. Yet, this rule applies 
to

[[Page 72991]]

contractors who enter into new and modified contracts on or after the 
effective date of the rule. Thus, some portion of the cost of the rule 
will not be realized in the first year and may be manifested over at 
least five years. There are a number of reasons why the pattern of 
impacts over time is difficult to estimate: there is limited 
information regarding the number of new Federal contractors in a year, 
the number of Federal contractors can be fluid, and the terms of 
contracts may range in duration. While it might be plausible to assume 
that approximately 20 percent of contracts are new or modified each 
year, this rule applies to contractors, rather than contracts, and thus 
its impacts are likely to be relatively high in the first year or two, 
with lesser impacts through the fifth year of implementation. After 
all, it is common for contractors to have multiple contracts, and 
compliance with this rule will be required when the first of such 
contracts is renewed or modified.
    However, there is no precise data with which to determine the 
number of new Federal contractors and subcontractors each year. Using a 
2012 Small Business Administration study, OFCCP determined that, on 
average, 17.6 percent of Federal contractors that are small businesses 
were new to Federal contracting.\15\ Recognizing that there is limited 
information regarding the number of new contractors in a year, that the 
terms of contracts may range in duration, that the rule applies to 
modifications to existing contracts, and taking into account the 
variety of industries affected by this rule, OFCCP conservatively 
assumes for the purposes of this analysis that roughly 20 percent of 
Federal contractors will be new each year. Thus, Table 3 shows the 
annual cost of this rule over the next five years for contractors 
affected by the reporting provision and Table 4 shows the annual cost 
of the rule over the next five years for those contractors not affected 
by the reporting provision.
---------------------------------------------------------------------------

    \15\ Small Business Administration, ``Characteristics of Recent 
Federal Small Business Contracting,'' May 2012, http://www.sba.gov/sites/default/files/397tot.pdf (last accessed Nov. 28, 2014).

               Table 3--Annual Cost Summary for Contractors Affected by the Reporting Provisions *
----------------------------------------------------------------------------------------------------------------
                                                    Contractors    One-time cost  Recurring cost    Total cost
----------------------------------------------------------------------------------------------------------------
Year 1..........................................             317         $30,718         $24,047         $54,765
Year 2..........................................             634          30,718          48,094          78,812
Year 3..........................................             952          30,718          72,141         102,859
Year 4..........................................           1,268          30,718          96,188         126,906
Year 5..........................................           1,586          30,718         120,235         150,953
----------------------------------------------------------------------------------------------------------------
* The annual cost summary includes the one-time burden which occurs in the first year the contractor is covered
  and the recurring burden that increases by 20 percent annually up through the fifth year when the entire
  affected universe will be covered by the rule.


    Table 4--Annual Cost Summary for Contractors Not Affected by the
                         Reporting Provisions *
------------------------------------------------------------------------
                                            Contractors        Cost
------------------------------------------------------------------------
Year 1..................................          99,683      $9,652,012
Year 2..................................          99,683       9,652,012
Year 3..................................          99,683       9,652,012
Year 4..................................          99,683       9,652,012
Year 5..................................          99,683       9,652,012
------------------------------------------------------------------------
* This reflects the one-time cost associated with the provisions of this
  rule.

Regulatory Flexibility Act and Executive Order 13272 (Consideration of 
Small Entities)

    Because no notice of proposed rulemaking is required for the rule 
under 5 U.S.C. 553(b)(B), the requirements of the Regulatory 
Flexibility Act and Executive Order 13272, pertaining to regulatory 
flexibility analysis, do not apply to this rule. See 5 U.S.C. 601(2), 
603(a). Accordingly, OFCCP has not prepared a regulatory flexibility 
analysis.

Paperwork Reduction Act

    Compliance Date: The requirements apply to contracts entered into 
or modified on or after the effective date of these rules. Affected 
parties do not have to comply with the amended information collections 
contained in this rule until the Department publishes a Notice in the 
Federal Register stating that the OMB has approved the information 
collections under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 
3501 et seq., or until this rule otherwise takes effect, whichever is 
later.
    As part of its continuing effort to reduce paperwork burdens, the 
Department conducts a preclearance consultation program to provide the 
general public and Federal agencies with an opportunity to comment on 
collections of information in accordance with the Paperwork Reduction 
Act of 1995 (PRA), 44 U.S.C. 3506(c)(2)(A). This program helps to 
ensure that requested data can be provided in the desired format, 
reporting burden (time and financial resources) is minimized, 
collection instruments are clearly understood, and the impact of 
collection requirements on respondents can be properly assessed. The 
PRA typically requires an agency to provide notice and seek public 
comments on any collection of information contained in a rule. See 44 
U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. Persons are not required to respond 
to a collection of information until it is approved by OMB under the 
PRA.
    This rule, which implements the provisions of Executive Order 
13672, contains several provisions that could be considered amendments 
to ``collections of information'' as defined by the PRA. Specifically, 
the amendments to the Equal Opportunity Clause that is incorporated 
into covered subcontracts and purchase orders, to the notifications 
that must be given to employees and job applicants, and to the visa 
reporting provision contained in section 60-1.10. Sections 60-1.4(a), 
paragraph 1 of the Equal Opportunity Clause, and 60-1.4(b), paragraph 1 
of the Equal Opportunity Clause, require contractors to post a notice 
for job applicants and employees. The notice is

[[Page 72992]]

provided by Federal contracting officers. The disclosure of information 
originally supplied by the Federal Government to the recipient for the 
purpose of disclosure is not included within the PRA's definition of 
``collection of information.'' See 5 CFR 1320.3(c). OFCCP has 
determined that the posting requirements found in sections 60-1.4(a), 
paragraph 1 of the Equal Opportunity Clause, and 60-1.4(b), paragraph 1 
of the Equal Opportunity Clause, do not meet the PRA's definition of 
``collection of information.'' Therefore, these provisions are not 
subject to the PRA's requirement. OFCCP, however, determined that the 
amendments to paragraphs 2 and 7 of the Equal Opportunity Clauses at 
60-1.4(a) and 60-1.4(b), and to the reporting provisions found at 60-
1.10 could be considered information collections, thus an information 
collection request (ICR), has been submitted to OMB for approval. 
Concurrently with this final rule, OFCCP is publishing a notice of 
proposed amended information collection in the Federal Register. See 44 
U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.
    Number of Respondents:
    This rule affects only contractors who enter into new or modified 
contracts with the Federal Government; it does not apply to those 
contractors who only have contracts entered into or last modified 
before the effective date. Thus, all new non-exempt Federal contractors 
with contracts, subcontracts, federally assisted construction contracts 
or subcontracts in excess of $10,000 are required to comply with the 
rule. There are approximately 500,000 contractor firms registered in 
the General Service Administration (GSA)'s System for Award Management 
(SAM). OFCCP estimates that approximately 20 percent or 100,000 of its 
Federal contractor universe will be affected by this rule each year 
until its full implementation in five years. Therefore, OFCCP estimates 
there are 100,000 contractor firms affected by this rule annually.

Summary of Paperwork Burden

    The total estimated burden for contractor companies to comply with 
the revised regulations is listed in the tables below. It is calculated 
based on a three-year approval of this information collection request. 
Table 5 shows the estimated PRA burden for those contractors affected 
by the visa reporting provision. Table 6 shows the estimated PRA burden 
for those contractors not affected by the visa reporting provision.

  Table 5--Estimated Annual PRA Burden for Contractors Affected by the
                        Visa Reporting Provision
                                [3 years]
------------------------------------------------------------------------
                                             Estimated
               Requirement                 annual burden   Monetization
                                               hours
------------------------------------------------------------------------
Amending the Equal Opportunity Clause...              79          $2,467
Amending the tag line for solicitations               40           1,230
 and job advertisements.................
Reporting denied visas to Department of            1,269          48,094
 State and OFCCP........................
                                         -------------------------------
    Total Annual Cost...................           1,388          51,791
------------------------------------------------------------------------


Table 6--Estimated Annual PRA Burden for Contractors Not Affected by the
                        Visa Reporting Provision
                                [3 years]
------------------------------------------------------------------------
                                             Estimated
               Requirement                 annual burden   Monetization
                                               hours
------------------------------------------------------------------------
Amending the Equal Opportunity Clause...          24,921        $774,227
Amending the tag line for solicitations           12,460         387,113
 and job advertisements.................
Reporting denied visas to Department of                0               0
 State and OFCCP........................
                                         -------------------------------
    Total Annual Cost...................          37,381       1,161,340
------------------------------------------------------------------------

    These paperwork burden estimates are summarized as follows:

    Type of Review: Amended collection.
    Agency: Office of Federal Contract Compliance Programs, Department 
of Labor.
    Title: Implementation of Executive Order 13672 Prohibiting 
Discrimination Based on Sexual Orientation and Gender Identity by 
Contractors and Subcontractors.
    OMB ICR Reference Number: 1250-0NEW.
    Affected Public: Business or other for-profit; individuals.
    Average Number of Annual Responses: 100,000.
    Frequency of Response: on occasion.
    Estimated Annual Burden Hours: 38,769.
    Estimated Total Annual PRA Costs: $0.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this rule does not include any Federal mandate that may result in 
excess of $100 million in expenditures by state, local, and tribal 
governments in the aggregate or by the private sector.

Executive Order 13132 (Federalism)

    OFCCP has reviewed this rule in accordance with Executive Order 
13132 regarding federalism, and has determined that it does not have 
``federalism implications.'' This rule will not ``have substantial 
direct effects

[[Page 72993]]

on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government.''

Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)

    This rule does not have tribal implications under Executive Order 
13175 that requires a tribal summary impact statement. The rule does 
not have substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and Indian tribes or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes.

Effects on Families

    The undersigned hereby certifies that the rule would not adversely 
affect the well-being of families, as discussed under section 654 of 
the Treasury and General Government Appropriations Act, 1999.

Executive Order 13045 (Protection of Children)

    This rule would have no environmental health risk or safety risk 
that may disproportionately affect children.

Environmental Impact Assessment

    A review of this rule in accordance with the requirements of the 
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
1500 et seq.; and DOL NEPA procedures, 29 CFR part 11, indicates the 
rule would not have a significant impact on the quality of the human 
environment. There is, thus, no corresponding environmental assessment 
or an environmental impact statement.

Executive Order 13211 (Energy Supply)

    This rule is not subject to Executive Order 13211. It will not have 
a significant adverse effect on the supply, distribution, or use of 
energy.

Executive Order 12630 (Constitutionally Protected Property Rights)

    This rule is not subject to Executive Order 12630 because it does 
not involve implementation of a policy that has takings implications or 
that could impose limitations on private property use.

Executive Order 12988 (Civil Justice Reform Analysis)

    This rule was drafted and reviewed in accordance with Executive 
Order 12988 and will not unduly burden the Federal court system. The 
rule was: (1) Reviewed to eliminate drafting errors and ambiguities; 
(2) written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects

41 CFR Part 60-1

    Administrative practice and procedure, Equal employment 
opportunity, Gender identity, Government contracts, Reporting and 
recordkeeping requirements, Sexual orientation.

41 CFR Part 60-2

    Equal employment opportunity, Gender identity, Government 
procurement, Reporting and recordkeeping requirements, Sexual 
orientation.

41 CFR Part 60-4

    Construction industry, Equal employment opportunity, Gender 
identity, Government procurement, Reporting and recordkeeping 
requirements, Sexual orientation.

41 CFR Part 60-50

    Equal employment opportunity, Gender identity, Government 
procurement, Religious discrimination, Reporting and recordkeeping 
requirements, Sexual orientation.

Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.

    Accordingly, under authority of Executive Order 13672 and for the 
reasons set forth in the preamble, OFCCP amends Title 41 of the Code of 
Federal Regulations, Chapter 60 as follows:

PART 60-1--OBLIGATIONS OF CONTRACTORS AND SUBCONTRACTORS

0
1. Revise the authority citation for 41 CFR part 60-1 to read as 
follows:

    Authority: Sec. 201, E.O. 11246, 30 FR 12319, 3 CFR, 1964-1965 
Comp., p. 339, as amended by E.O. 11375, 32 FR 14303, 3 CFR, 1966-
1970 Comp., p. 684, E.O. 12086, 43 FR 46501, 3 CFR, 1978 Comp., p. 
230, E.O. 13279, 67 FR 77141, 3 CFR, 2002 Comp., p. 258 and E.O. 
13672, 79 FR 42971.


0
2. Revise Sec.  60-1.1 to read as follows:


Sec.  60-1.1  Purpose and application.

    The purpose of the regulations in this part is to achieve the aims 
of parts II, III, and IV of Executive Order 11246 for the promotion and 
insuring of equal opportunity for all persons, without regard to race, 
color, religion, sex, sexual orientation, gender identity, or national 
origin, employed or seeking employment with Government contractors or 
with contractors performing under federally assisted construction 
contracts. The regulations in this part apply to all contracting 
agencies of the Government and to contractors and subcontractors who 
perform under Government contracts, to the extent set forth in this 
part. The regulations in this part also apply to all agencies of the 
Government administering programs involving Federal financial 
assistance which may include a construction contract, and to all 
contractors and subcontractors performing under construction contracts 
which are related to any such programs. The procedures set forth in the 
regulations in this part govern all disputes relative to a contractor's 
compliance with his obligations under the equal opportunity clause 
regardless of whether or not his contract contains a ``Disputes'' 
clause. Failure of a contractor or applicant to comply with any 
provision of the regulations in this part shall be grounds for the 
imposition of any or all of the sanctions authorized by the order. The 
regulations in this part do not apply to any action taken to effect 
compliance with respect to employment practices subject to title VI of 
the Civil Rights Act of 1964. The rights and remedies of the Government 
hereunder are not exclusive and do not affect rights and remedies 
provided elsewhere by law, regulation, or contract; neither do the 
regulations limit the exercise by the Secretary or Government agencies 
of powers not herein specifically set forth, but granted to them by the 
order.


0
3. Amend Sec.  60-1.4 by revising paragraphs (a) introductory text and 
(a)(1) and (2) and (b) introductory text and (b)(1) and (2) to read as 
follows:


Sec.  60-1.4  Equal opportunity clause.

    (a) Government contracts. Except as otherwise provided, each 
contracting agency shall include the following equal opportunity clause 
contained in section 202 of the order in each of its Government 
contracts (and modifications thereof if not included in the original 
contract):
    During the performance of this contract, the contractor agrees as 
follows:
    (1) The contractor will not discriminate against any employee or 
applicant for employment because of race, color, religion, sex, sexual 
orientation, gender identity, or national origin. The contractor will 
take

[[Page 72994]]

affirmative action to ensure that applicants are employed, and that 
employees are treated during employment, without regard to their race, 
color, religion, sex, sexual orientation, gender identity, or national 
origin. Such action shall include, but not be limited to the following: 
Employment, upgrading, demotion, or transfer, recruitment or 
recruitment advertising; layoff or termination; rates of pay or other 
forms of compensation; and selection for training, including 
apprenticeship. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices to be 
provided by the contracting officer setting forth the provisions of 
this nondiscrimination clause.
    (2) The contractor will, in all solicitations or advertisements for 
employees placed by or on behalf of the contractor, state that all 
qualified applicants will receive consideration for employment without 
regard to race, color, religion, sex, sexual orientation, gender 
identity, or national origin.
* * * * *
    (b) Federally assisted construction contracts. (1) Except as 
otherwise provided, each administering agency shall require the 
inclusion of the following language as a condition of any grant, 
contract, loan, insurance, or guarantee involving federally assisted 
construction which is not exempt from the requirements of the equal 
opportunity clause:
    The applicant hereby agrees that it will incorporate or cause to be 
incorporated into any contract for construction work, or modification 
thereof, as defined in the regulations of the Secretary of Labor at 41 
CFR chapter 60, which is paid for in whole or in part with funds 
obtained from the Federal Government or borrowed on the credit of the 
Federal Government pursuant to a grant, contract, loan insurance, or 
guarantee, or undertaken pursuant to any Federal program involving such 
grant, contract, loan, insurance, or guarantee, the following equal 
opportunity clause:
    During the performance of this contract, the contractor agrees as 
follows:
    (1) The contractor will not discriminate against any employee or 
applicant for employment because of race, color, religion, sex, sexual 
orientation, gender identity, or national origin. The contractor will 
take affirmative action to ensure that applicants are employed, and 
that employees are treated during employment without regard to their 
race, color, religion, sex, sexual orientation, gender identity, or 
national origin. Such action shall include, but not be limited to the 
following: Employment, upgrading, demotion, or transfer; recruitment or 
recruitment advertising; layoff or termination; rates of pay or other 
forms of compensation; and selection for training, including 
apprenticeship. The contractor agrees to post in conspicuous places, 
available to employees and applicants for employment, notices to be 
provided setting forth the provisions of this nondiscrimination clause.
    (2) The contractor will, in all solicitations or advertisements for 
employees placed by or on behalf of the contractor, state that all 
qualified applicants will receive considerations for employment without 
regard to race, color, religion, sex, sexual orientation, gender 
identity, or national origin.
* * * * *

0
4. Revise Sec.  60-1.8 to read as follows:


Sec.  60-1.8  Segregated facilities.

    To comply with its obligations under the Order, a contractor must 
ensure that facilities provided for employees are provided in such a 
manner that segregation on the basis of race, color, religion, sex, 
sexual orientation, gender identity, or national origin cannot result. 
The contractor may neither require such segregated use by written or 
oral policies nor tolerate such use by employee custom. The 
contractor's obligation extends further to ensuring that its employees 
are not assigned to perform their services at any location, under the 
contractor's control, where the facilities are segregated. This 
obligation extends to all contracts containing the equal opportunity 
clause regardless of the amount of the contract. The term 
``facilities,'' as used in this section, means waiting rooms, work 
areas, restaurants and other eating areas, time clocks, restrooms, wash 
rooms, locker rooms, and other storage or dressing areas, parking lots, 
drinking fountains, recreation or entertainment areas, transportation, 
and housing provided for employees; Provided, That separate or single-
user restrooms and necessary dressing or sleeping areas shall be 
provided to assure privacy between the sexes.


0
5. Revise Sec.  60-1.10 to read as follows:


Sec.  60-1.10  Foreign government practices.

    Contractors shall not discriminate on the basis of race, color, 
religion, sex, sexual orientation, gender identity, or national origin 
when hiring or making employee assignments for work to be performed in 
the United States or abroad. Contractors are exempted from this 
obligation only when hiring persons outside the United States for work 
to be performed outside the United States (see 41 CFR 60-1.5(a)(3)). 
Therefore, a contractor hiring workers in the United States for either 
Federal or nonfederally connected work shall be in violation of 
Executive Order 11246, as amended, by refusing to employ or assign any 
person because of race, color, religion, sex, sexual orientation, 
gender identity, or national origin regardless of the policies of the 
country where the work is to be performed or for whom the work will be 
performed. Should any contractor be unable to acquire a visa of entry 
for any employee or potential employee to a country in which or with 
which it is doing business, and which refusal it believes is due to the 
race, color, religion, sex, sexual orientation, gender identity, or 
national origin of the employee or potential employee, the contractor 
must immediately notify the Department of State and the Deputy 
Assistant Secretary of such refusal.

Subpart B--General Enforcement; Compliance Review and Complaint 
Procedure

0
6. Amend Sec.  60-1.20 by revising paragraph (a) introductory text to 
read as follows:


Sec.  60-1.20  Compliance evaluations.

    (a) OFCCP may conduct compliance evaluations to determine if the 
contractor maintains nondiscriminatory hiring and employment practices 
and is taking affirmative action to ensure that applicants are employed 
and that employees are placed, trained, upgraded, promoted, and 
otherwise treated during employment without regard to race, color, 
religion, sex, sexual orientation, gender identity, or national origin. 
A compliance evaluation may consist of any one or any combination of 
the following investigative procedures:
* * * * *

0
7. Amend Sec.  60-1.41 by revising the introductory text and paragraphs 
(a) and (c) to read as follows:


Sec.  60-1.41  Solicitations or advertisements for employees.

    In solicitations or advertisements for employees placed by or on 
behalf of a prime contractor or subcontractor, the requirements of 
paragraph (2) of the equal opportunity clause in Sec.  60-1.4 shall be 
satisfied whenever the prime contractor or subcontractor complies with 
any of the following:
    (a) States expressly in the solicitations or advertising that all 
qualified

[[Page 72995]]

applicants will receive consideration for employment without regard to 
race, color, religion, sex, sexual orientation, gender identity, or 
national origin;
* * * * *
    (c) Uses a single advertisement, and the advertisement is grouped 
with other advertisements under a caption which clearly states that all 
employers in the group assure all qualified applicants equal 
consideration for employment without regard to race, color, religion, 
sex, sexual orientation, gender identity, or national origin;
* * * * *

0
8. Revise Sec.  60-1.42 to read as follows:


Sec.  60-1.42  Notices to be posted.

    (a) Unless alternative notices are prescribed by the Deputy 
Assistant Secretary, the notices which contractors are required to post 
by paragraphs (1) and (3) of the equal opportunity clause in Sec.  60-
1.4 will contain the following language and be provided by the 
contracting or administering agencies:

Equal Employment Opportunity Is the Law--Discrimination Is Prohibited 
by the Civil Rights Act of 1964 and by Executive Order No. 11246

    Title VII of the Civil Rights Act of 1964--Administered by:

The Equal Employment Opportunity Commission

Prohibits discrimination because of Race, Color, Religion, Sex, or 
National Origin by Employers with 15 or more employees, by Labor 
Organizations, by Employment Agencies, and by Apprenticeship or 
Training Programs

Any person who believes he or she has been discriminated against should 
contact

The Equal Employment Opportunity Commission, 1801 L Street NW., 
Washington, DC 20507

    Executive Order No. 11246--Administered by:

The Office of Federal Contract Compliance Programs

    Prohibits discrimination because of Race, Color, Religion, Sex, 
Sexual Orientation, Gender Identity, or National Origin, and requires 
affirmative action to ensure equality of opportunity in all aspects of 
employment.
    By all Federal Government Contractors and Subcontractors, and by 
Contractors Performing Work Under a Federally Assisted Construction 
Contract, regardless of the number of employees in either case.

Any person who believes he or she has been discriminated against should 
contact

The Office of Federal Contract Compliance Programs, U.S. Department of 
Labor, Washington, DC 20210

PART 60-2--AFFIRMATIVE ACTION PROGRAMS

0
9. Revise the authority citation for 41 CFR part 60-2 to read as 
follows:

    Authority:  Sec. 201, E.O. 11246, 30 FR 12319, E.O. 11375, 32 FR 
14303, as amended by E.O. 12086, 43 FR 46501, and E.O. 13672, 79 FR 
42971.



0
10. Amend Sec.  60-2.16 by revising paragraph (e)(2) to read as 
follows:


Sec.  60-2.16  Placement goals.

* * * * *
    (e) * * *
    (2) In all employment decisions, the contractor must make 
selections in a nondiscriminatory manner. Placement goals do not 
provide the contractor with a justification to extend a preference to 
any individual, select an individual, or adversely affect an 
individual's employment status, on the basis of that person's race, 
color, religion, sex, sexual orientation, gender identity, or national 
origin.
* * * * *

0
11. Revise Sec.  60-2.35 to read as follows:


Sec.  60-2.35  Compliance status.

    No contractor's compliance status will be judged alone by whether 
it reaches its goals. The composition of the contractor's workforce 
(i.e., the employment of minorities or women at a percentage rate 
below, or above, the goal level) does not, by itself, serve as a basis 
to impose any of the sanctions authorized by Executive Order 11246 and 
the regulations in this chapter. Each contractor's compliance with its 
affirmative action obligations will be determined by reviewing the 
nature and extent of the contractor's good faith affirmative action 
activities as required under Sec.  60-2.17, and the appropriateness of 
those activities to identified equal employment opportunity problems. 
Each contractor's compliance with its nondiscrimination obligations 
will be determined by analysis of statistical data and other non-
statistical information which would indicate whether employees and 
applicants are being treated without regard to their race, color, 
religion, sex, sexual orientation, gender identity, or national origin.

PART 60-4--CONSTRUCTION CONTRACTORS--AFFIRMATIVE ACTION 
REQUIREMENTS

0
12. Revise the authority citation for 41 CFR part 60-4 to read as 
follows:

    Authority:  Secs. 201, 202, 205, 211, 301, 302, and 303 of E.O. 
11246, as amended, 30 FR 12319; 32 FR 14303, as amended by E.O. 
12086; and E.O. 13672, 79 FR 42971.
0
13. Amend Sec.  60-4.3 in paragraph (a), by revising paragraph 10 in 
the clause to read as follows:


Sec.  60-4.3  Equal opportunity clauses.

    (a) * * *

Standard Federal Equal Employment Opportunity Construction Contract 
Specifications (Executive Order 11246)
* * * * *
    10. The Contractor shall not use the goals and timetables or 
affirmative action standards to discriminate against any person because 
of race, color, religion, sex, sexual orientation, gender identity, or 
national origin.
* * * * *

PART 60-50--GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION OR 
NATIONAL ORIGIN

0
14. Revise the authority citation for 41 CFR part 60-50 to read as 
follows:

    Authority: Sec. 201 of E.O. 11246, as amended, 30 FR 12319; 32 
FR 14303, as amended by E.O. 12086; and E.O. 13672, 79 FR 42971.


0
15. Revise Sec.  60-50.5 to read as follows:


Sec.  60-50.5  Nondiscrimination.

    The provisions of this part are not intended and shall not be used 
to discriminate against any qualified employee or applicant for 
employment because of race, color, religion, sex, sexual orientation, 
gender identity or national origin.

[FR Doc. 2014-28902 Filed 12-5-14; 1:30 pm]
BILLING CODE 4510-CM-P