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    On August 19, 2014,the OFCCP issued Directive 2014-02 clarifying federal contractor’s nondiscrimination obligations on the basis of sex including discrimination on the basis of gender identity and transgender status.  Directive 2014-02 sets forth the policy that the OFCCP will fully investigate and seek to remedy instances of sex discrimination that occur because of an employee’s or applicant’s gender identity or transgender status.  Citing the recent EEOC decision in the case of Macy v. Holder, which held that discrimination because a person is transgender is sex discrimination in violation of Title VII, the OFCCP directs compliance officers to conduct complaint investigations and compliance evaluations related to transgender status and gender identity in accordance with the directive.

    The Directive is effective immediately.  For more information on how this may affect your current policies and practices please contact either your attorney at FortneyScott or human resources consultant at WorkPlace HR (

    The U.S. Department of Labor today announced the issuance of the long-awaited proposed rule requiring federal contractors and subcontractors to submit an annual Equal Pay Report on employee compensation to the Office of Federal Contract Compliance Programs.  The rule is scheduled to be published in the Federal Register on Aug. 8, and all comments must be received within 90 days after the date of publication.  

    This notice of proposed rulemaking (NPRM) would amend the current regulations by adding a requirement that certain Federal contractors and subcontractors supplement their EEO-1 Report with summary information on compensation paid to employees, as contained in the W-2 forms, by sex, race, ethnicity, and specified job categories, as well as other relevant data points such as hours worked, and the number of employees.

    President Obama signed the Fair Pay and Safe Workplaces Executive Order on July 31, 2014.  This far reaching Executive Order largely implements prior “blacklisting” principles, and paves the way for many common violations of federal and state labor and employment laws to result in ineligibility to hold federal contracts. 

    The Executive Order also requires prospective federal contractors initially to disclose and then periodically self-report their employment and labor law violations; mandates that contracting agencies consider employment and labor law violations as a disqualifying factor when awarding a federal contract; mandates onerous recordkeeping and disclosure requirements for a worker pay; and, prohibits mandatory pre-dispute arbitration as a means to resolve employment discrimination and other work-related disputes.  These provisions generally will apply to federal contracts exceeding $500,000.

Senator Menendez Requests that the Fortune 500 Companies Complete a Diversity Survey

By David Fortney, Esq.

See the letter from Senator Robert Menendez, Democrat from New Jersey, requesting that the Fortune 500 companies complete a Diversity Survey Instrument by May 1st.


The survey requests information about minority representation on each company’s board and senior management and in the company’s procurement of goods and services.  The Senator states that he is “conducting the survey to gain a better understanding of Hispanic participation in our corporate executive teams, board rooms and procurement practices.”  Senator Menendez further explains that he “intend[s] to have a public presentation of the data compiled from companies that participate, as well as shed light on those that do not.”

 Please contact the FortneyScott attorney with whom you work to discuss how you may want to respond, particularly because the survey requests information that otherwise typically would not be in the public domain and need not be disclosed to the government under existing reporting procedures.

This update is for general information purposes only and is not intended to provide legal counsel or advice.  Employers should retain experienced legal counsel to obtain advice about the effects of these developments on their particular circumstances.

For more information, please contact David Fortney, Esq. at