Government Contracts Monitor

Short Take – FAR Final Rule Implements E.O. 13672 on Sexual Orientation & Gender Identity.

December 15, 2015

On December 4, 2015, DOD, GSA and NASA adopted a Final Rule, effective immediately, amending the Federal Acquisition Regulation (FAR) to implement (i) President Obama’s Executive Order (EO) 13672, and (ii) the Department of Labor (DOL), Office of Federal Contract Compliance Policy (OFCCP)’s implementing Final Rule (previously discussed here). EO 13672 amends EOs 11246 and 11478 to add sexual orientation and gender identity to the prohibited bases of discrimination under the “Equal Opportunity Clause” required in all covered contracts and subcontracts. This new FAR Final Rule follows and adopts as final, without any changes, the Interim Rule published and effective April 10, 2015, as corrected on May 7, 2015.

The FAR Rule applies to all contracts and subcontracts entered into or modified after April 10, 2015 that are subject to the FAR Equal Opportunity Clause 52.222-26. That Clause is prescribed for all contracts over $10,000 that are not completely exempted. The principal change effected by EO 13572 and its implementing regulations is to add sexual orientation and gender identity to the prohibited bases of discrimination under the Equal Opportunity Clause. Interestingly, OFCCP’s Final Rule did not define “sexual orientation” or “gender identify.” However, OFCCP separately developed materials that include definitions of these terms. The FAR Rule relies on these definitions.

The FAR Rule essentially requires contractors and subcontractors to (1) amend their policies, documents and employee handbooks to incorporate the identified new discrimination bases, (2) incorporate and flow-down the new language in all covered subcontracts, (3) provide non-segregated facilities, including restrooms, for covered persons (discussed here), and (4) post the mandatory new DOL EO poster supplement (here).

Contractors and subcontractors working on covered contracts that have not already done so should promptly review their current policies, including employee handbooks and subcontract flow-down clauses as well as posted EO posters, to ensure compliance with Executive Order 13672 and the implementing final OFCCP and FAR regulations.

Hopewell Darneille is responsible for the contents of this short take.