Proposed FAR changes remove contractor diversity requirements, keep disability rules

The Revolutionary FAR Overhaul's newest set of changes includes the removal of equal employment opportunity requirements for contractors that have been in place since 1965.

Part 22.8 of the Federal Acquisition Regulation is now deleted. This should not be a surprise, given that President Trump signed an executive order on his first day in office revoking an executive order signed by President Lyndon Johnson that placed several non-discrimination requirements on contractors.

Trump’s executive order told agencies to suspend their enforcement of diversity, equity and inclusion requirements in government contracts.

The newest batch of changes to the FAR came out on Sept. 30 and are intended to enforce the Trump anti-DEI order, but it is still striking to see the entire section deleted. Subpart 22.8 is now marked as “reserved.”

The deleted portions include provisions for fair hiring practices, reporting to the Labor Department, and general requirements aimed at addressing racial and gender discrimination. Those now-deleted regulations prohibited discrimination based on race, color, religion, sex, sexual orientation, gender identity and national origin.

Still in Part 22 is section 14, which covers the hiring of people with disabilities. These remain in place apparently because these regulations enforce a law passed by Congress – the Rehabilitation Act of 1973. The disability requirements can only be rescinded by an act of Congress.

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The discrimination regulations that have been removed were put in place to implement an executive order. While the provisions have been removed, contractors will still need to comply with several laws that prohibit discrimination such as the Title VII of the 1964 Civil Rights Act.

But the change in the FAR shifts the way these laws are enforced. With the old FAR, the government took a more proactive approach with provisions in contracts and reporting requirements.

Enforcement of anti-discrimination laws will now be more reactive. A complaint needs to be filed before an investigation is conducted.

For example, a woman applies for a job and is not hired. She files a complaint with the Equal Employment Opportunity Commission, which EEOC would then investigate. If discrimination is found, the remedies could include hiring her and paying her back wages.

Without FAR 22.8, contractors are no longer required to have written affirmative action plans. They also do not have to conduct outreach and recruitment activities, nor undergo periodic compliance reviews.

President Johnson signed Executive Order 11246 in 1965 because he believed the Civil Rights Act didn’t go far enough. He outlined his concerns in his 1965 commencement address at Howard University known as the To Fulfill These Rights speech.

Johnson was leveraging the buying power of the federal government to hold contractors to a higher standard of equal employment, historian Hugh Davis Graham wrote in his book The Civil Rights Era.

While agencies are expected to adopt the new FAR regulations, the rules still need to go through a formal process including public comment before becoming final. The government is collecting informal comments through Nov. 3 on the Acquisition.gov website.