OFCCP Rule Implementing Executive Order 13665, Non-Retaliation for Disclosure of Compensation Information

Protection: Federal contractors and subcontractors agree to refrain from discharging or otherwise discriminating against employees or applicants who inquire about, discuss, or disclose their compensation or the compensation of other employees or applicants. 41 C.F.R. § 60-1.4(a)(3).

Coverage: Applies to contractors and subcontractors who hold a federal contract worth more than $10,000, hold Government bills of lading, serve as a depository of Federal funds, or serve as issuing and paying agencies for U.S. savings bonds; however, the regulation does not apply to contractors and subcontractors that are religious corporations, associations, educational institutions, or societies, with respect to the employment of individuals performing work connected with the carrying on by such corporation, association, educational institution, or society of its activities. 41 C.F.R. §§ 60-1.3, 60-1.5(a)(1), (5). The Deputy Assistant Secretary for Federal Contract Compliance and the heads of federal agencies may exempt contractors and subcontractors from complying with this provision if they deem that special circumstances so require. 41 C.F.R. § 60-1.5(b)(1), (c).

Remedies: OFCCP may seek back pay and other make whole relief for victims of discrimination and may also refer matters to the Solicitor of Labor, who may initiate administrative enforcement proceeding to enjoin violations, seek appropriate relief, and impose appropriate sanctions, including debarment. 41 C.F.R. §§ 60-1.26(a)(2), (b)(1); 60-1.27.

Equal Pay Act

Protection: No employer shall discriminate between employees on the basis of sex by paying wages to employees at a rate less than the rate at which he pays wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. 29 U.S.C. § 206(d)(1).

Coverage: Applies to government agencies and all other employers with respect to any of their employees who are engaged in commerce or employed in an enterprise engaged in commerce. See 29 U.S.C. §§ 203(d), 206(a), 262(a). Employees who are involved in interstate commerce include those who: produce goods, make telephone calls to persons located in other states, handle records of interstate transactions, travel to other states on their jobs, and do janitorial work in buildings where goods are produced for shipment outside the State. Fact Sheet #14: Coverage Under the Fair Labor Standards Act (FLSA), U.S. Department of Labor Wage and Hour Division, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs14.pdf (last visited April 14, 2022). An enterprise is engaged in commerce if it has at least two employees and either (1) has an annual dollar volume of sales or business done of at least $500,000, or (2) is a hospital, business providing medical or nursing care for residents, school, or government agency. See 29 U.S.C. § 203(s)(1).

Remedies: Any person who knowingly transports, offers for transportation, ships, delivers, or sells in commerce any goods in the production of which any employee was employed in violation of section 206 shall be subject to a fine of not more than $10,000, or to imprisonment for not more than 6 months, or both. 29 U.S.C. § 216(a). An employee who was been aggrieved by a violation of Section 206 may maintain a civil action in court for unpaid wages and an additional equal amount as liquidated damages; in addition to any judgment awarded to the employee, the court shall allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action. 29 U.S.C. § 216(b).

Title VII of the Civil Rights Act

Protection: It is an unlawful employment practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s sex. 42 U.S.C. § 2000e-2(a)(1).

Coverage: Applies to employees who work for an employer engaged in an industry affecting commerce and having at least 15 employees, including state and local governments but does not include the United States, a corporation wholly owned by the United States, an Indian tribe, any department of the District of Columbia subject to procedures of competitive service, or a bona fide private membership club exempt from taxation. 42 U.S.C. § 2000e(b).

Remedies: An individual aggrieved by violations of Title VII may file a charge with the Equal Employment Opportunity Commission, which may bring a civil action against a respondent employer; if a court finds that the respondent has intentionally engaged in an unlawful employment practice, the court may enjoin the respondent from engaging in such unlawful employment practice and order affirmative action, which may include reinstatement or hiring of employees, with or without back pay, or any other equitable relief. 42 U.S.C. § 2000e-5(e)(1), (f)(1), (g)(1).