FAR Rule Implements Equal Employment Opportunity Executive Order

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have issued FAC 2005-81, which contains one interim rule amending the Federal Acquisition Regulation. The rule, “Further Amendments to Equal Employment Opportunity” (FAR Case 2015-013), adds employment protections based on sexual orientation and gender identity to the classes of contractor workers protected from discrimination.

Executive Orders. This interim rule implements Executive Order 13672, entitled “Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government,” and E.O. 11246, “Equal Employment Opportunity.” This rule also implements a December 9, 2014, final rule issued by the Department of Labor’s Office of Federal Contract Compliance Programs, “Implementation of Executive Order 13672, Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors.” E.O. 11246 established requirements for non-discriminatory practices in hiring and employment for federal contractors and subcontractors. The bases of discrimination prohibited by E.O. 11246 are race, color, religion, sex, and national origin. E. O. 13672 added sexual orientation and gender identity to the prohibited bases of discrimination.

Amendments. The FAR addresses E.O. 11246 requirements in FAR Subpart 22.8, “Equal Employment Opportunity,” FAR 52.222-26, “Equal Opportunity,” and related clauses. The interim rule inserts “sexual orientation, gender identity” between “sex” and “or national origin” wherever they appear within FAR Subpart 22.8 and the clauses that are prescribed in that subpart. The rule incorporates the definitions of “gender identity” and “sexual orientation” stated in OFCCP’s FAQ to EO 13672 Final Rule. “Gender identity” refers to one’s internal sense of one’s own gender. It may or may not correspond to the sex assigned to a person at birth, and may or may not be made visible to others. “Sexual orientation” refers to an individual’s physical, romantic, and/or emotional attraction to people of the same and/or opposite gender.

Applicability. This interim rule applies to solicitations and contract modifications—if the contract does not already contain the clauses as amended by the rule—issued on or after the rule’s April 10, 2015, effective date. Comments referencing the FAR case number are due by June 9, 2015. This FAC also includes a Small Entity Compliance Guide, which contains a regulatory flexibility analysis for the rule.