Overview
FAR Subpart 22.8 implements Executive Order 11246, which prohibits federal contractors and subcontractors from discriminating in employment based on race, color, religion, sex, sexual orientation, gender identity, or national origin. It establishes the policies and procedures for ensuring equal opportunity, including the requirement for affirmative action programs and the enforcement authority of the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP).
Key Rules
- Non-Discrimination: Contractors are prohibited from discriminating against employees or applicants and must take "affirmative action" to ensure equal treatment.
- Pay Transparency: Contractors cannot discharge or discriminate against employees for inquiring about, discussing, or disclosing compensation information (with limited exceptions for HR/essential functions).
- Written Affirmative Action Programs (AAP):
- Non-construction: Required for contractors with 50 or more employees and a contract of $50,000 or more.
- The AAP must be developed within 120 days of the commencement of the contract.
- Preaward Clearance: For non-construction contracts estimated at $10 million or more, the Contracting Officer (CO) must obtain EEO clearance from the OFCCP before award, unless the contractor is already listed in the National Preaward Registry.
- Exemptions:
- Generally, contracts and subcontracts of $10,000 or less are exempt, unless the aggregate value of contracts in a 12-month period exceeds $10,000.
- Work performed outside the U.S. by employees recruited outside the U.S. is exempt.
- Specific exemptions exist for national security and religious entities (regarding the employment of individuals of a particular religion).
Responsibilities
- Secretary of Labor: Responsible for the administration, enforcement, and adoption of rules/regulations under E.O. 11246.
- Deputy Assistant Secretary (OFCCP): Conducts compliance evaluations, grants specific exemptions, and determines ineligibility for non-compliance.
- Contracting Officer (CO):
- Must include necessary EEO clauses (e.g., FAR 52.222-26) in solicitations and contracts.
- Requests preaward clearances for contracts over $10 million.
- Provides "Equal Employment Opportunity Is The Law" posters to contractors.
- Refers all EEO inquiries and formal complaints to the OFCCP.
- Notifies OFCCP within 10 days of awarding a construction contract over $10,000.
- Agency Head: Responsible for ensuring the agency complies with the subpart and cooperates with the OFCCP.
Practical Implications
- Timeline Risks: The $10 million preaward clearance process can take up to 35 days (15 days for OFCCP to signal intent + 20 days for conclusions). COs must factor this into their procurement schedules to avoid delays in "urgent and critical" awards.
- Subcontractor Flow-down: Prime contractors are responsible for ensuring their subcontractors comply with EEO requirements. A prime contractor cannot approve a subcontract with a firm found ineligible by the DOL.
- Confidentiality in Complaints: If a CO receives a complaint, they are strictly prohibited from telling the contractor the name of the complainant or the specific nature of the complaint; they must simply refer the matter to the OFCCP.
- Recordkeeping: Contractors hitting the 50-employee/$50k threshold must be prepared for the administrative burden of developing and maintaining a formal, written AAP, which is often a focal point of DOL audits.