The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) published a Final Rule on December 9, 2014, implementing Executive Order 13672, which prohibits federal contractors and subcontractors from discriminating against individuals on the basis of sexual orientation and gender identity. In accordance with the treatment of depository institutions under Executive Order 11246, the mere existence of federal deposit insurance is sufficient for a bank to be deemed a federal contractor under Executive Order 13672, without regard to the number of employees or other contractual relationships with the federal government. The new rule will take effect April 8, 2015.

Although the new rule does NOT include new reporting and information gathering mandates or require contractors to set hiring goals, it does require federal contractors and subcontractors (and thus all insured banks) to:

  • Update Contracts.  Contractors must update the equal opportunity clause in new or modified subcontracts and purchase orders to include sexual orientation and gender identity as protected characteristics.
  • Update Job Solicitations.  Contractors must update the equal opportunity language included in all job solicitations to notify applicants that they will not be discriminated against on the basis of their sexual orientation or gender identity.
  • Ensure No Discrimination. Contractors must take steps to ensure that job applicants and employees are not discriminated against because of their sexual orientation or gender identity.
  • Post Updated Notices.  Contractors must post the new supplement to the EEO is the Law poster as soon as it is available on the OFCCP’s website.
  • Ensure No Segregation.  Contractors must ensure that facilities provided for use by their employees are not segregated on the basis of sexual orientation or gender identity.
  • Notify OFCCP/State Department.  Contractors must immediately notify the OFCCP and the State Department if they believe they cannot obtain a visa for an employee to a country in which, or with which, they do business because of the employee’s sexual orientation or gender identity.

Because this rule will take place next month, it is important to act now. Banks may need to make changes to their existing policies, practices and contracts. Planning and preparation will be key. As a
result, banks should consider taking the following actions to ensure they are in compliance with the new rule when it takes effect April 8, 2015:

  • Review and update employee handbooks, policies, and job solicitations to include sexual orientation and gender identity in the list of protected characteristics;
  • Review and update hiring forms and processes;
  • Incorporate the new protected characteristics into the EEO language in contracts, sub-contracts and purchase orders; and
  • Review and enhance internal resources.