What “Government” Contractors Must Do Now
Important: please note the shift in language from “federal contractor” to now “Government contractor”. (A “Government” contractor is a legally defined creature…i.e. the ones among all federal contractors over which OFCCP has jurisdiction. Note: OFCCP’s Rules exempt thousands of federal contractors from its jurisdictional reach).
Section 4 of the Order prescribes “Do” and “Don’t” requirements for federal contractors.
Section 5 of the Order prescribes “Do” and “Don’t” requirements for federal grantees (applicable to many construction contractors and universities and colleges).
Section 6 of the Order prescribes requirements for federal agencies (not discussed here).Section 4(a) of EO 13950 is important because it imposes obligations beginning in 60 days (on and after Sunday November 22, 2020) which will attach to all new federal Government contracts BY OPERATION OF THE CONTRACT and not by operation of OFCCP Rules. So, this is the place to read about these new coming requirements for federal Government contractors. Accordingly, we quote this text verbatim from EO 13950:“Sec. 4. Requirements for Government Contractors. (a) Except in contracts exempted in the manner provided by section 204 of Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), as amended, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:
“During the performance of this contract, the contractor agrees as follows:
- The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.
- The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
- In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided by any rules, regulations, or orders the Secretary of Labor has issued or adopted pursuant to Executive Order 11246, including subpart D of that order.
- The contractor will include the provisions of paragraphs (1) through (4) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”
Note RE Timing: EO 13950 is effective immediately (p. 9; Section 9), except that “the requirements of Section 4 of this order shall apply to contracts entered into 60 days after the date of this order.” (Again, DirectEmployers calculates the date federal Government contracting officers will begin to insert the new language EO 13950 mandates in federal Government contracts over which OFCCP has jurisdiction to be on and after Sunday, November 22).
Section 5 of EO 13950 applies to “Federal Grants” (i.e. applicable to those companies and institutions which sign federal contracts for “Federal Financial Assistance”; i.e. “grants”). Section 5 reads verbatim as follows (without any editing):
“Sec. 5. Requirements for Federal Grants. The heads of all agencies shall review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. Within 60 days of the date of this order, the heads of agencies shall each submit a report to the Director of the Office of Management and Budget (OMB) that lists all grant programs so identified.” (p. 7)
Special Note RE Timing of New Grant Restrictions Pursuant to EO 13950
EO 13950 does not prescribe a date after which federal grantees will have to make the eight certifications Section 5 of EO 13950 prescribes. Rather, “within” 60 days from September 22, 2020 (i.e. on or before Sunday, November 22, 2020), EO 13950 requires all federal Executive Branch agencies to file a Report with OMB listing all grant programs for which the agency may, as a condition of receiving such a grant, require the recipient to make the eight certifications Section 5 of EO 13950 allows the federal Executive Branch agencies to require of grantees. Presumably, OMB would then issue further instructions to the federal Executive Branch agencies (perhaps in the new year 2021) as to how they may and must proceed as to contracts for federal grants.