President Obama recently signed two Executive Orders that impact government contractors in their capacity as employers. Executive Order 13672 (July 21, 2014) amends Executive Order 11246 (September 24, 1965) by adding “sexual orientation” and “gender identity” to the list of personal characteristics that cannot be used by government contractors to discriminate against any employee or applicant for employment. As originally issued, Executive Order 11246 proscribed discrimination on account of race, color, religion, sex, and national origin – characteristics protected by Title VII of the Civil rights Act of 1964 (Title VII). Sexual orientation and gender identity are not specifically identified in Title VII as protected characteristics. These Executive Orders also apply to subcontractors and vendors of government contractors. Executive Order 13672 leaves in tact an earlier amendment to Executive Order 11246 that granted an exemption for government contractors qualifying as religious organizations in terms of the ability of these organizations to hire individuals of a given religion. The Department of Labor is charged with issuing regulations within 90 days implementing the new Executive Order.
On July 31, 2014, President Obama issued an Executive Order entitled “Fair Pay and Safe Workplaces.” Among other things, this Executive Order requires a government contractor or subcontractor seeking a contract or subcontract in excess of $500,000 to disclose any administrative determination, arbitration award or civil judgment against it for violating the federal labor laws, including the Fair Labor Standards Act, Title VII, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the National Labor Relations Act, the Family and Medical Leave Act and the above-discussed Executive Order 11246. Contractors must update this information every six months during the performance of the contract. The government may impose remedial measures to avoid future violations, and “serious, repeated, willful or pervasive” violations can result in a government decision not to award a contract, not to exercise a contract option, or to cancel a contract. In addition, government contractors and subcontractors seeking contracts or subcontracts in excess of $1 million must agree that they will not compel their employees to arbitrate claims under Title VII or tort claims for sexual assault or harassment. The Executive Order also directs the Federal Acquisition regulatory counsel to issue appropriate implementing regulations.