Dive Brief:
- The U.S. Department of Labor recently updated its sex discrimination regulations for federal contractors, and legal experts predict it will drive a higher number of pay-related discrimination claims, according to SHRM.
- Updated for the first time in 40 years, the new reg permits those who feel they are being discriminated against regarding pay to compare certain factors when men and women are working in different, though similar, jobs.
- The Labor Department's regs say the following factors are among those relevant to determining similarity between jobs: tasks performed, skills needed, effort required, level of responsibility, working conditions, job difficulty and minimum qualifications.
Dive Insight:
David Goldstein, an attorney with the Littler law firm in Minneapolis, told SHRM that while Title VII of the Civil Rights Act of 1964 limits comparisons to "similarly situated" jobs, using this new rule, the way the Office of Federal Contract Compliance Programs (OFCCP) redefines the scenario could open the door to "broader comparisons."
"Contractors will want to be alert to any efforts by the OFCCP to expand on Title VII standards for analyzing claims of pay discrimination," he told SHRM.
Responding to criticisms that the new definition is contrary to Title VII, in a statement the DOL disagreed, saying the OFCCP "treats employees as similarly situated only if they are comparable for purposes of the contractor’s pay practices on factors relevant to the compensation issues presented.” With that, the Labor Dept. says its rule is consistent with Title VII.
As for the definition of "similarly situation" being too broad under the new rule, the Labor Dept.'s response said that in its compliance investigations, OFCCP will pay close attention to the "compensation systems and practices of the particular contractor under review," meaning it will decide on a case by case basis.