On January 31, 2017, the White House issued a Press Release announcing President’s determination to continue the effectivity and enforcement of President Obama’s Executive Order (EO) 13672, protecting the rights of the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ) community under federal contracts. The Press Release stated that President “Trump is determined to protect the rights of all Americans, including the LGBTQ community,” and that “[t]he executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact ….” The Press Release noted that President Trump was the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech last summer, “pledging then to protect the LGBTQ community from violence and oppression,” and stated that “President Trump continues to be respectful and supportive of LGBTQ rights.”
This announcement presumably means that the implementing (1) Department of Labor (DOL), Office of Federal Contract Compliance Policy (OFCCP) Final Rule (previously discussed here), and (2) the FAR Council’s December 4, 2015 Final Rule (discussed here), will continue in effect.
As you may recall, EO 13672 amended 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. As implemented, EO 13672 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 was to add sexual orientation and gender identity to the prohibited bases of discrimination under the Equal Opportunity Clause. Interestingly, neither the EO nor OFCCP Final Rule defined “sexual orientation” or “gender identity.” However, OFCCP separately developed materials that include definitions of these terms. The FAR Rule relied on those 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 revised DOL EO poster supplement (here).
The White House Press Release eliminates any uncertainty as to the continuing validity of EO 13672, and all federal contractors and subcontractors working on covered contracts should continue complying with the applicable implementing regulations and contract terms.
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