Information Collection Request Supporting Statement final

June 2015

Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors

1250-0009

DEPARTMENT OF LABOR, OFCCP

Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors

OMB Control Number 1250-0009

SUPPORTING STATEMENT

This Information Collection Request (ICR) is submitted for the purpose of obtaining Office of Management and Budget (OMB) approval under the Paperwork Reduction Act (PRA) for the extension of its approval of the information collection requirements contained in the final rule titled “Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors.” In accordance with the PRA, OFCCP solicited public comments on the proposed changes to the information collection proposed in the final rule. See 79 FR 72703 (December 8, 2014). Thus, having considered the comments received, OFCCP is submitting this ICR.

1. JUSTIFICATION

1. Circumstances Necessitating Information Collection

On July 21, 2014, President Obama issued Executive Order 13672, titled “Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government and Executive Order 11246, Equal Employment Opportunity.” Executive Order 13672 amends Executive Order 11246 and directs U.S. Department of Labor ((DOL)) to prepare regulations to implement its requirements. In response to Executive Order 13672, DOL’s Office of Federal Contract Compliance Programs (OFCCP) published a final rule. As directed, DOL is amended its regulations to replace the words “sex, or national origin” with the words “sex, sexual orientation, gender identity or national origin” wherever they appear in the current regulations.

This information collection request supports the final rule implementing Executive Order 13672. Among other things, the final rule sets forth information disclosure and reporting requirements for covered Federal contractors, subcontractors, and federally assisted construction contractors and subcontractors.¹ DOL discusses the specific sections of the final rule that includes the information collection requirements described below.

Sections 60-1.4(a) and (b) and 60-4.3(a) outline the requirement that contractors incorporate modified language into the equal opportunity clause they currently use in covered subcontracts and purchase orders. The equal opportunity clause may be incorporated by reference.

Sections 60-1.4(a)(2), and 1.4(b)(2) outline the requirement that contractors are to expressly state in solicitations for employees that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

Section 60-1.10 describes the reporting requirement for contractors when their employees or prospective employees are denied a visa of entry to a country in which or with which it is doing business, and it believes the denial is due to a basis covered by Executive Order 11246, as amended by Executive Order 13672.

2. Use of Materials

Federal contractors are required to include an equal opportunity clause, set forth in both Executive Order 11246 and its implementing regulations, in subcontracts and purchase orders. The purpose is to inform subcontractors of their obligations under Executive Order 11246. Federal contractors have the discretion to include the clause either verbatim or by reference. See 41 CFR 60-1.4(c) and (d). Incorporating the amended equal opportunity clause in subcontracts and purchase orders increases contractors’ awareness and understanding of their obligations and prevents confusion regarding the relevant obligations.

Federal contractors are required to state in all solicitations or advertisements for employees that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. Federal contractors have discretion in how they comply with this requirement. See 41 CFR 60-1.41. The inclusion of the statement in job advertisements makes applicants aware that the employer does not discriminate and that it has specific obligations related to equal opportunity employment.

Section 60-1.10 requires a contractor to report to the Department of State and OFCCP if an employee or prospective employee is denied a visa of entry to a country in which or with which it is doing business, and it believes the denial is due to the employee’s race, color, religion, sex, sexual orientation, gender identity, or national origin. This reporting requirement provides contractors a method to inform OFCCP and the Department of State when it identifies impediments to equal employment opportunity.

3. Improved Information Technology

In general, DOL’s regulations allow each contractor to determine its own methods for developing and maintaining information including electronic templates. Contractors are free to use whatever methods best suit their needs as long as they can retrieve and provide DOL with the data required by the agency’s regulations. In reporting potential violations of 41 CFR 60-1.10, contractors may determine their own method for submitting such information.

4. Description of Efforts to Identify Duplication

The requirements in this ICR result exclusively from the implementation of Executive Order 11246 and Executive Order 13672. These authorities uniquely empower DOL to require the collection, analysis, and reporting of data and other information in connection with the enforcement of the laws and regulations requiring Federal contractors and subcontractors to take affirmative action to ensure equal employment opportunity. No duplication of effort exists because no other Government agencies have these specific data collection requirements.

5. Minimizing the Burden on Small Organizations

This information collection is required of small organizations that have a covered contract, subcontract, federally assisted construction contract, or federally assisted construction subcontract of more than $10,000. However, the disclosures of information involved in this information collection involve one-time amendments to each contractor’s existing template used for subcontracts and purchase orders and job advertisements. The reporting burden impacts only those contractors that have employees who work outside the United States that are denied visas on discriminatory bases. As such, the burden associated with this ICR is negligible.

6. Consequences to Federal Programs if this Information is Collected Less Frequently

The information collections under this ICR include third-party disclosures between contractors and subcontractors and between contractors or subcontractors and their job applicants. If such disclosures were to occur less frequently than required, then subcontractors may not be aware of their contractual obligations and may violate the Executive Order. Similarly, if the disclosure were not made to job applicants, then prospective employees would not be aware of their rights or the Federal contractor’s policy as an equal opportunity employer.

7. Special Circumstances for the Collection of Information

There are no special circumstances that would require the information to be collected or kept in any manner other than those normally required under the Paperwork Reduction Act.

8. Public Engagement

This ICR is requesting an extension of the OMB approval of the PRA burden associated with the implementation of Executive Order 13672. On December 8, 2014, the OFCCP published a notice in the Federal Register at 79 FR 72703 inviting public comments on the information collections. OFCCP received two comments on this ICR. Both comments reflect the personal opinions of the commenters on sexual orientation and gender identity issues. However, neither comment addresses the information collections, thus the collections remain unchanged.

9. Incentives

DOL provides neither payments nor gifts to respondents.

10. Assurance of Confidentiality

This information collection consists of third-party disclosures between contractors and subcontractors and a reporting provision. There is no assurance of confidentiality provided related to the third-party disclosures.

Further, contractors providing information, as required by 41 CFR 60-1.10, are informed that no express assurance of confidentiality is provided. DOL recognizes that contractors that submit the required information may view it as extremely sensitive information. DOL will evaluate all information pursuant to the public inspection and disclosure provisions of the Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Department of Labor’s implementing regulations at 29 CFR Part 70.

11. Sensitive Questions

Generally, DOL does not collect information of a personal nature, however sensitive information related to an individual’s sexual orientation or gender identity may be disclosed if a contractor or subcontractor reports that an employee or prospective employee was denied a visa to enter a country in which or with which it is doing business, and the contractor or subcontractor believes that refusal is due to the employee’s sexual orientation or gender identity. Under such circumstances, DOL may seek additional information related to the denial under an action that qualifies for a PRA exemption under regulations 5 C.F.R. § 1320.4(a).

Additionally, if such information arises during a complaint investigation or compliance evaluation, then DOL may seek evidence concerning the conduct, attitudes or biases of selecting officials regarding sexual orientation or gender identity, as appropriate. Where allegations of employment discrimination are present, such evidence may become relevant. DOL has no set of standardized questions and the gathering of such data is unique to each investigation. Such inquiries would also be exempt under the PRA pursuant to regulations 5 C.F.R. § 1320.4(a).

12. Estimate of Information Collection Burden

The following is a summary of the methodology used by DOL for the calculation of burden associated with this information collection request.

In the final rule, DOL requires covered Federal contractors to amend the equal opportunity clause incorporated into subcontracts, amend the tag line used in job advertisements and solicitations, and report all denials of visas for employees if the denial is due to the employee’s race, color, religion, sex, sexual orientation, gender identity, or national origin. DOL estimates that there are approximately 500,000 contractor firms registered in the General Service Administration (GSA)’s System for Award Management (SAM).² Yet, this rule applies to contractors who enter into new and modified contracts on or after the effective date of the rule. Thus, the total cost of the rule will not be realized in the first year and at least five years will pass before this rule’s full cost is manifested.³ Therefore, in calculating the PRA burden, OFCCP estimates that approximately 20 percent or 100,000 of its Federal contractor universe will be affected by this rule each year until its full implementation in five years. Therefore, the total percentage of Federal contractors impacted is estimated at 20 percent in the 1^st year, 40 percent in the 2^nd year, and 60 percent in the 3^rd year, respectively.

1. Information Collection

This rule, which implements the changes required by Executive Order 13672, contains several provisions that could be considered “collections of information” as defined by the Paperwork Reduction Act. Specifically the amendment to the equal opportunity clause incorporated into subcontracts and purchase orders, the amendment to the tag line included in job advertisements and solicitations, and the modified reporting provision contained in section 60-1.10.

2. Summary of Burden Hours and Time Value (Monetization)

Amending the Equal Opportunity Clause:

Sections 60-1.4(a) and (b) and 60-4.3(a) require contractors to incorporate the amended language into the equal opportunity clause they currently use in covered subcontracts and purchase orders. The equal opportunity clause may be incorporated by reference. OFCCP believes that contractors and subcontractors will spend approximately 15 minutes modifying existing contract templates to ensure the additional language is added. The burden for this provision is 125,000 hours (500,000 contractors x 0.25 hours). Twenty-five percent of the time will be spent by managers and leaving 75 percent of the time burden to be spent by administrative-level employees. The cost for incorporating the changes into the equal opportunity clause is $3,883,438 ((125,000 hours x 0.25 managerial time x $51.58) + (125,000 x 0.75 administrative time x $24.23) = $3,883,438).⁴

Amending the Tag Line in Job Advertisements and Solicitations: Sections 60-1.4(a)(2), and 1.4(b)(2) require contractors to expressly state in solicitations for employees that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. Section 60-1.41(a) details the options available to contractors for complying with this requirement, which range from stating in employment solicitations that “all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identify, or national origin” to simply including the phrase “an equal opportunity employer.”⁵ While some contractors include the detailed list, others include the phrase “equal opportunity employer.” OFCCP estimates that 50 percent of contractors will include the detailed list, and the remainder will use “an equal opportunity employer.” Thus, OFCCP acknowledges that 50 percent or 250,000 contractors that include the detailed list will thus be affected by this change. OFCCP believes that contractors will modify their existing solicitation or job advertisement templates to incorporate the revised terminology. OFCCP believes that contractors will spend approximately 15 minutes modifying existing job posting templates to ensure the additional words are added. The burden for this provision is 62,500 hours (250,000 contractors x 0.25 hours). The cost for incorporating the changes into the equal opportunity clause is $1,941,719 ((62,500 hours x 0.25 x $51.58) + (62,500 x 0.75 x $24.23) = $1,941,719).

Reporting Denied Visas to Department of State and OFCCP:

Section 60-1.10 requires a contractor to report to the Department of State and OFCCP if an employee or prospective employee is denied a visa of entry to a country in which or with which it is doing business, and it believes the denial is due to a basis covered by Executive Order 11246, as amended by Executive Order 13672, then the contractor must immediately notify the OFCCP and the Department of State. Neither OFCCP nor the current office directors or senior officials in the Department of State’s Bureau of Political-Military Affairs have received any visa denial notifications related to the existing protected categories.

There is no precise way of calculating how many lesbian, gay, bisexual or transgender (LGBT) employees of Federal contractors will travel to foreign countries for work-related purposes. Although there is no single, authoritative source of labor force population data regarding sexual orientation and gender identity,⁶ separate independent surveys published between 2011 and 2014 estimate that between 2.3 and 4.0 percent of the U.S. population identify as LGBT.⁷ This represents approximately 3.6 to 6.2 million LGBT individuals in the civilian labor force, approximately 1.5 to 2.6 million of whom are employed by Federal contractors.⁸ According to the Department of Commerce’s International Trade Administration, 4,875,000 U.S. residents departed the country for business or convention purposes in 2013, representing approximately 3.1 percent of the civilian labor force.⁹ In the absence of data as to what percent of the LGBT employees in the Federal contractor workforce would depart the country for business or convention purposes, the agency assumes that 6.1 percent (double the rate of the general national civilian labor force) of LGBT employees in the Federal contractor workforce may visit foreign countries for work purposes, yielding a total of 91,500 to 158,600 LGBT employees each year.

The International Trade Administration tracks patterns as to what destinations United States residents travel to, both in general and for work purposes.¹⁰ There is very limited precedent for LGBT individuals being denied entry on the basis of sexual orientation or gender identity. There are two countries with immigration laws that prohibit entry of “homosexual” persons, but there is no indication that these laws are actively enforced. Statistically, therefore, the percent of United States resident business travel to countries where LGBT individuals may face denial of entry on the basis of sexual orientation or gender identity, due to law or custom, is less than 1 percent.¹¹ As an overestimate, presuming all LGBT Federal contractor employees who visit these countries for work purposes are denied a visa on the basis of sexual orientation or gender identity, this would lead to 915 to 1,586 incidences (or 1 percent of total LGBT employees who travel abroad for business) per year. To adjust this calculation from an incidence count to the estimate of burden on contractors, OFCCP assumes a ratio of one incident per contractor, thus an estimated 1,586 contractors could be impacted by this provision.

OFCCP estimates that it will take two hours for a contractor to identify from the Federal Acquisition Regulation (FAR) a contact at the Department of State, and prepare and send the notification of visa denial to the Department of State and OFCCP. Therefore, the burden is 3,172 hours per year (1,586 contractors x 2 hours). Because of the nature of this provision, OFCCP estimates that 50 percent of the time addressing this provision will be management and 50 percent of the time will be administrative. Thus, using the high end of the estimate, the cost of this provision is estimated as $120,235((3,172 hours x 0.50 x $51.58) + (3,172 hours x 0.50 x $24.23)).

Summary of Burden and Costs

This rule applies to new contracts (and as such contractors) entered into on or after the effective date of the rule. Thus, the total cost of the rule will not be realized in the first year and at least five years will pass before this rule’s full cost is manifested. To estimate the cost of the rule in the first year, OFCCP first determined the number of new contractors affected by this rule. There is no precise data with which to determine the number of new Federal contractors and subcontractors each year. Using a 2012 Small Business Administration study, OFCCP determined that on average 17.6 percent of all small businesses were new to Federal contracting.¹² Recognizing that the terms of contracts may range in duration, and taking into account the variety of industries affected by this rule, OFCCP conservatively assumes for the purposes of this analysis that roughly 20 percent of Federal contractors will be new each year. Therefore, the percentage of Federal contractors impacted will be 20 percent in the 1^st year, 40 percent in the 2^nd year, 60 percent in the 3^rd year, 80 percent in the 4^th year, and 100 percent in the 5^th year, respectively.

Additionally, contractors affected by this rule will have different burdens based on whether they are required to report to the Department of State and OFCCP. See 41 CFR 60-1.10. Thus in summarizing the burden, DOL details the burden for those contractors that are affected by the Visa denial reporting provision (“the reporting provision”) and in Table 2 DOL details the burden for those contractors that are not affected by the reporting provision.

The total estimated burden for contractor companies to comply with the revised regulations is listed in the tables, below. It is calculated based on a three-year approval of this information collection request. Table 1 shows the estimated PRA burden for those contractors affected by the reporting provision. Table 2 shows the estimated PRA burden for those contractors not affected by the reporting provision.

Table 1: Estimated Annual PRA Burden for Contractors Affected by the Reporting Provisions (3 years)
Requirement	Estimated Annual Burden Hours	Monetization
Amending the equal opportunity clause	79	$2,467
Amending the tag line for job advertisements and solicitations	40	$1,230
Reporting denied visas to Department of State and OFCCP	1,269	$48,094
Total Annual Cost	1,388	$51,791

Table 2: Estimated Annual PRA Burden for Contractors Not Affected by the Reporting Provisions (3 years)
Requirement	Estimated Annual Burden Hours	Monetization
Amending the equal opportunity clause	24,921	$774,227
Amending the tag line for job advertisements and solicitations	12,460	$387,113
Reporting denied visas to Department of State and OFCCP	0	$0
Total Annual Cost	37,381	$1,161,340

13. Annual Operations and Maintenance Cost Burden to Respondents

Amending the Equal Opportunity Clause:

No additional costs are anticipated.

Amending the Tag Line in Job Advertisements and Solicitations:

As previously noted, OFCCP estimates that 50 percent of contractors will include the detailed list, and the remainder will use “an equal opportunity employer.” Thus, OFCCP acknowledges that 50 percent or 250,000 contractors that include the detailed list will thus be affected by this change. OFCCP believes that contractors will modify their existing solicitation or job advertisement templates to incorporate the revised terminology. Contractors, however, are unlikely to see an increased operational burden, though, as most costs involved with advertisements and solicitations are not based on the number of words or specific words included. Therefore, OFCCP believes that the cost of the solicitation or advertisement will not be impacted by adding the words “sexual orientation” and “gender identity” to the advertisement.

14. Estimate of Cost to the Federal Government

The average Federal Government cost for a year of operation is the activities that occur during a compliance evaluation or complaint investigation. These costs are included in OMB Control No. 1250-0003, which expires on March 31, 2016, OMB Control No. 1250-0001, which expires on February 28, 2018, and OMB Control No. 1250-0002, which expires on August 31, 2017.

15. Reason for Burden Changes

This request is for approval of an extension of an existing ICR (OMB Control Number 1250-0009), which was approved through September 30, 2015. There are no changes in the burden.

16. Statistical Uses and Publication of Data

DOL does not intend to publish data collected as a part of this ICR.

17. Approval Not to Display the Expiration Date

DOL is not seeking such approval.

18. Exceptions to the Certification Statement

DOL is not seeking an exception.

2. COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS

This information collection does not employ statistical methods.

1 Unless otherwise stated, the term “contractor” includes both “contractors” and “subcontractors,” and the term “contract” also includes “subcontracts.”

2 Legacy CCR Extracts Public ("FOIA") Data Package, May 2014, https://www.sam.gov/portal/public/SAM/; (last accessed Sept. 12, 2014). There is at least one reason to believe the SAM data yield an underestimate of the number of entities affected by this rule and other reasons to believe the data yield an overestimate. SAM does not necessarily include all subcontractors thus potentially leading to an underestimate, but this limitation of the data is offset somewhat by the overlap among contractors and subcontractors; a firm may be a subcontractor on some activities but have a contract on others and thus be included in the SAM data. The SAM data may produce an overestimate of the entities affected by this rule because the data set includes inactive contractors, contracts below this rule’s $10,000 threshold, and recipients of Federal grants and Federal financial assistance, none of which are subject to the requirements of this rule.

3 Using a 2012 Small Business Administration study, DOL determined that on average 17.6 percent of all small businesses were new to Federal contracting. Small Business Administration (SBA), “Characteristics of Recent Federal Small Business Contracting,” May 2012, http://www.sba.gov/sites/default/files/397tot.pdf (last accessed Oct. 7, 2014). DOL assumes, for the purposes of this analysis, that roughly 20 percent of Federal contractors will be new each year. This assumption recognizes that there is limited information regarding the number of new Federal contractors in a year, that the number of Federal contractors can be fluid, that the terms of contracts may range in duration, and that while the rule applies to modifications to existing contracts these modifications are not reflected in the 17.6 percent referenced by SBA. Because DOL is unaware of any specific data on the number of annual contract modifications, it adjusted the 17.6 percent figure upward to 20 percent.

4 The contractors’ estimated annualized cost is based on Bureau of Labor Statistics data in the publication, “Employer Costs for Employee Compensation” - December 2013, (http://www.bls.gov/news.release/archives/ecec_03122014.htm) which lists total compensation (including wages and benefits) for management, professional, and related occupations as $51.58 per hour and administrative support as $24.23 per hour.

5 The other options include using an insignia approved by the Director of OFCCP in job advertisements and including a single advertisement in a group of advertisements which includes the statement that “all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identify, or national origin.” From a review of job advertisements, contractors typically use either the “equal opportunity employer” tag line or include “all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identify, or national origin.”

6 While the U.S. Department of Labor’s (DOL) Bureau of Labor Statistics (BLS) collects information about the demographic composition of the civilian labor force, it does not collect data about the sexual orientation or gender identity of workers. Consequently, most of the available demographic information pertaining to sexual orientation and gender identity comes from U.S. Census Bureau data about same-sex couples, polling by non-governmental organizations, state-level data, and population subgroup‑specific surveys.

7 This estimated range is derived from four separate sources: (1) Brian W. Ward, Ph.D. et al., Centers for Disease Control and Prevention, Sexual Orientation and Health Among U.S. Adults: National Health Interview Survey, 2013 (July 15, 2014), http://www.cdc.gov/nchs/data/nhsr/nhsr077.pdf (last accessed Sept. 20, 2014) (Survey of approximately 35,000 adults, age 18 and over found 2.3 percent identified as gay/lesbian or bisexual. An additional 1.1 percent identified as “something else.”); (2) Gary J. Gates and Frank Newport, The Gallup Organization, Special Report: 3.4% of U.S. Adults Identify as LGBT (October 18, 2012), http://www.gallup.com/poll/158066/special-report-adults-identify-lgbt.aspx?utm_source=alert&utm_medium=email&utm_campaign=syndication&utm_content=morelink&utm_term=All%20Gallup%20Headlines (last accessed Sept. 20, 2014) (Gallup poll of a representative sample of 120,000 adults conducted in 2012 found 3.4 percent identified as LGBT); (3) Movement Advancement Project, Center for American Progress, Human Rights Campaign, A Broken Bargain: Discrimination, Fewer Benefits, and More Taxes for LGBT Workers at 5 (June 2013), http://www.americanprogress.org/issues/lgbt/report/2013/06/04/65133/a-broken-bargain/ (last accessed Sept. 20, 2014) (2011 study aggregating results of five separate surveys conducted between 2004 and 2009 found 3.5 percent of those surveyed identified as lesbian, gay, or bisexual and 0.3 percent identified as transgender); and (4) Jennifer C. Pizer, Brad Sears, Christy Mallory, and Nan D. Hunter, Evidence of Persistent and Pervasive Workplace Discrimination Against LGBT People: The Need for Federal Legislation Prohibiting Discrimination and Providing for Equal Employment Benefits, 45 Loy. L.A. L. Rev. 715, 717 (2012), http://digitalcommons.lmy.edu/llr/vol45/iss3/3 (last accessed Sept. 20, 2014) (analyzing a 2002 study from the National Survey of Family Growth finding 4 percent of the U.S. workforce identified as lesbian, gay, bisexual, or transgender).

8 Recent BLS data indicates that in August 2014 there were approximately 156 million people in the civilian labor force.  U.S. Department of Labor Bureau of Labor Statistics, Table A-1, Employment Status of the Civilian Population by Sex and Age, online at http://www.bls.gov/news.release/empsit.t01.htm (last accessed Sept.20, 2014).  The estimated range of LGBT workers in the civilian labor force was derived by applying the 2.3 to 4.0 percent range to the total number of people in the civilian labor force.  While the estimated range of LGBT federal contractor workers was derived by applying the 2.3 to 4.0 percent range to the contractor work force data from SAM (65 million).

9 U.S. Department of Commerce, International Trade Administration, National Travel and Tourism Office, 2013 U.S. Resident Travel: Business and Convention Travel, available at http://travel.trade.gov/outreachpages/download_data_table/2013-US-Business.pdf (last accessed Sept. 30, 2014). This data excludes U.S. resident travel to Canada. OFCCP does not believe the exclusion of Canadian travel will have any impact on the burden incurred.

10 See id.; U.S. Department of Commerce, International Trade Administration, National Travel and Tourism Office, 2013 United States Resident Travel Abroad, available at http://travel.trade.gov/outreachpages/download_data_table/2013_US_Travel_Abroad.pdf (last accessed Sept. 30, 2014).

11 This figure is derived from tables in the two above-cited International Trade Administration reports.

12 Small Business Administration, “Characteristics of Recent Federal Small Business Contracting,” May 2012, http://www.sba.gov/sites/default/files/397tot.pdf.

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