3H04 Review of Personnel Policies for Sex Discrimination
As in a supply and service compliance evaluation, COs will examine the contractor’s personnel policies and practices. COs will determine whether contractor policies make prohibited distinctions in the conditions of employment based on sex. Below are some areas of inquiry for COs.
a. Conditions of Employment. COs must examine whether contractor policies make prohibited distinctions in conditions of employment based on sex. Contractors must not make employment decisions based on stereotypes about how males and females are “supposed” to look or act. Such employment decisions are a form of sex discrimination prohibited by Executive Order 11246, as amended.
b. Distinctions Based on Marital Status or Caregiver Responsibilities. A CO should examine written policies and conduct interviews with contractor staff and employees regarding the implementation of policies and practices to identify whether distinctions between married and unmarried people apply equally to both sexes, including distinctions between single parents and married parents based on gender. In addition, the CO should assess contractor policies and practices to ensure that sex-based stereotypes about actual and perceived caregiving responsibilities are not in effect.
c. BFOQ. Contractors may not hire or employ employees on the basis of sex unless sex is a BFOQ reasonably necessary to the normal operation of the contractor’s particular business or enterprise. As a part of most on-site visits, the CO will examine job qualifications as stated by the contractor. Under Title VII, sex has been found to be a BFOQ in extremely rare instances. Among them are:
- Authenticity. Jobs involving a need for authenticity or genuineness, such as actors or models.
- Personal Privacy. Jobs where the performance of essential job elements would entail substantial invasion of personal privacy. This is limited to situations where the normal operation of the contractor’s business depends on the employee being the same sex as its employees or customers and there is no other way to ensure privacy. This is different from customer preference.
d. Employment Opportunities. Contractors may not exclude individuals from jobs they believe are dangerous or unsuitable for women to perform unless sex is a BFOQ. OFCCP follows Title VII principles when determining whether a policy excluding women from a job because of a concern about reproductive hazards is discriminatory. If a question relating to reproductive hazards arises during a compliance evaluation, the CO should discuss the issue with his or her supervisor.
e. Compensation Discrimination. The CO will also examine possible compensation discrimination issues. Compensation discrimination encompasses discrimination salary, wages, overtime pay, shift differentials, bonuses, commissions, vacation and holiday pay, allowances, insurance and other benefits, stock options and awards, profit sharing, and retirement. Contractors cannot make distinctions in compensation on the basis of sex. FCCM 1M provides additional information on this issue.
f. Employment Advertising. The CO will examine the contractor’s advertisements in newspapers online and in other media. The advertisements must not recruit or advertise for individuals for certain jobs on the basis of sex. Use of sex-specific terms for jobs (such as “linemen”) is suspect but is not automatically a violation of Executive Order 11246. Where sex-specific language is used in conjunction with prominent language that clearly indicates the contractor’s intent to invite applications without regard to applicants’ sex, COs should not find a violation.
Several examples of the types of issues that COs may encounter related to a review of personnel policies are provided in 2K, Compliance with the Sex Discrimination Regulations.