Are Female Government Contractors Protected from Gender Discrimination?

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Should female government contractors be entitled to fair pay for the work they do? An Obama-era 2014 executive order called Fair Pay and Safe Workplaces sought to hold contractors accountable for pay violations, sexual harassment, and other forms of gender discrimination. But those protections have been rolled back under the Trump Administration, leaving employees wondering if they are still protected at all.

In this blog post, I will discuss the federal laws and executive orders protecting female government contractors from sexual harassment, abuse, and gender discrimination. I will explain how an Obama-era executive order extended additional protections, and how a 2017 executive order repealing those protections could change the way women are treated, and paid, in government contract jobs.

Anti-Discrimination Laws Protect Female Government Contractors from Gender Discrimination and Unfair Pay

If you work for the federal government or one of its many contractors, you would assume that federal laws against unfair compensation, harassment, and discrimination would apply to you as much as to any employee of a private company. And you would be right. Federal contractors, departments, and agencies can all be sued for violating anti-discrimination laws including Title VII of the federal Civil Rights Act and the Equal Pay Act. Employees of these contractors have just as much right to file complaints with the Equal Employment Opportunity Commission (EEOC) and in federal court as their privately employed counterparts.

But in 2010, the United States Government Accountability Office (GAO) found that female government contractors were being targetted for sexual harassment, unequal pay, and gender discrimination violations. Companies that received millions in federal contract dollars were among the worst offenders when it came to violations of 14 labor and civil rights laws. Of the 50 worst employers examined by the GAO, 60% had been given federal contract money after receiving penalties by the Department of Labor’s Wage and Hour Division. They scored similarly poorly at the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB). 

Mandatory Arbitration Clauses Hide Sexual Harassment Against Female Government Contractors

But those same numbers weren’t showing up in the courts. The research did not reveal very many allegations of sexual harassment or sexual assault against the government contractor employers. At the time, this was attributed to the mandatory arbitration clauses in the contractors’ employment agreements. These agreements pushed sexual harassment and abuse claims out of the public eye, forcing them to be resolved behind closed doors by privately paid arbitrators, rather than federal judges. 

Obama-Era Executive Order Put Government Money Behind Fair Pay

On July 31, 2014, in response to the 2010 GAO study, then-President Barack Obama signed the Fair Pay and Safe Workplaces Executive Order. This order said that government contractors receiving more than $500,000 in federal funds had to live up to the expectations of civil rights and labor laws to get their money. It required applicants for federal funds to disclose 3 years of public and private awards or decisions (including arbitration decisions) against the company for violations of:

  •  “(A) the Fair Labor Standards Act;
  •  (B) the Occupational Safety and Health Act of1970;
  •  (C) the Migrant and Seasonal Agricultural Worker Protection Act;
  •  (D) the National Labor Relations Act;
  •  (E) 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act;
  •  (F) 41 U.S.C. chapter 67, also known as the Service Contract Act;
  •  (G) Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity);
  •  (H) section 503 of the Rehabilitation Act of 1973;
  •  (I) 38 U.S.C. 3696, 3698, 3699, 4214, 4301-4306, also known as the Vietnam Era Veterans' Readjustment Assistance Act of 1974;
  • (J) the Family and Medical Leave Act;
  • (K) title VII of the Civil Rights Act of 1964; 
  • (L) the Americans with Disabilities Act of 1990;  
  • (M) the Age Discrimination in Employment Act of 1967;
  • (N) Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors); or
  • (O) equivalent State laws, as defined in guidance issued by the Department of Labor.” 

The order also required federal government contractors to provide transparency in their pay determination and to remove mandatory arbitration in cases of sexual harassment, sexual assault, or discrimination. The Executive Order also contained a detailed explanation as to why these protections were necessary:

“This order seeks to increase efficiency and cost savings in the work performed by parties who contract with the Federal Government by ensuring that they understand and comply with labor laws. … ”

President Trump Undoes Fair Pay and Safe Workplaces Executive Order

The Fair Pay and Safe Workplaces Executive Order continued as the law of the land for the rest of President Obama’s term in office. But just over two months into Donald Trump’s presidency, he signed an executive order of his own. The new order didn’t include any sweeping policy statements or provide any explanation. It simply said,

“Executive Order 13673 of July 31, 2014, section 3 of Executive Order 13683 of December 11, 2014, and Executive Order 13738 of August 23, 2016, are revoked.”

It then instructed all executive agencies and departments to rescind orders, rules, regulations, and policies based on the now-revoked orders. Without further instruction, the order left it unclear what those agencies were supposed to put in their place to protect female government contractors.

Fighting Back Against Unfair Pay and Gender Discrimination

Two years later, female government contractors still face gender discrimination on the job and in their paychecks. For some, the Fair Pay and Safe Workplaces Executive Order has created lasting changes to their employment contracts. They have better access to federal and state anti-discrimination laws, and a clearer understanding of their companies’ pay structures.

But for others, when Trump rescinded the executive order, it signaled a return to the old habits and cavalier violations of federal labor and civil rights laws that prompted the GAO study in the first place. For those female government contractors, a successful defense against sexual harassment and gender discrimination at work will depend on zealous representation in front of arbitrators and investigators alike, and a creative approach to getting them the relief they need.

The employment attorneys at Eisenberg & Baum, LLP, can help. Our experienced gender discrimination and sexual harassment attorneys know how to fight back against government contractor employers trying to hide behind arbitration clauses and pay secrecy. Contact us to schedule a consultation at our office in New York City, or over the phone.

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