Overview
FAR Subpart 22.9 establishes the federal government's policy against age discrimination by contractors and subcontractors, as mandated by Executive Order 11141. It ensures that age is not a factor in employment decisions—including hiring, promotion, or termination—unless specifically justified by legal or occupational necessities.
Key Rules
- General Prohibition: Contractors and subcontractors are prohibited from discriminating against employees or applicants based on age regarding employment, advancement, discharge, or terms of employment.
- Advertising Restrictions: Solicitation materials and job advertisements for work on government contracts must not specify a maximum age limit.
- Permissible Exceptions: Age-based distinctions are only allowed if they are based on:
- A bona fide occupational qualification (BFOQ).
- The terms of a legitimate retirement plan.
- A specific statutory requirement.
- No Contract Clause: Unlike many other labor regulations, the FAR does not require a specific contract clause to be inserted into solicitations or contracts to enforce this policy; it is primarily handled through agency notification.
Responsibilities
- Contractors and Subcontractors: Must ensure all employment practices and advertisements remain age-neutral and comply with the policy.
- Government Agencies (Contracting Officers):
- Must proactively bring the non-discrimination policy to the attention of contractors.
- Must handle complaints by notifying the contractor in writing, stating the policy, and requesting that the contractor take necessary steps to comply.
- Complainants: While not explicitly detailed in the FAR text, individuals typically report non-compliance to the contracting agency for administrative resolution.
Practical Implications
- Job Posting Compliance: Contractors must be careful with the language used in recruitment. Phrases like "recent college graduate" or "digital native" can sometimes be interpreted as coded age discrimination if they result in the exclusion of older workers.
- Administrative Enforcement: Because there is no standard contract clause for this subpart, enforcement is less about "breach of contract" and more about agency-to-contractor administrative communication. However, failure to rectify a complaint after being notified by the agency could lead to broader reviews of the contractor’s labor practices.
- Documentation of Exceptions: If a contractor maintains a maximum age limit for a specific role (e.g., for certain safety-sensitive positions like pilots), they must maintain rigorous documentation proving that the age limit is a bona fide occupational qualification or a statutory requirement to defend against potential complaints.