52.222-26
Equal Opportunity
If your covered federal contracts exceed $10,000 in a 12-month period, you must actively prevent employment discrimination, support affirmative action, protect pay discussions, meet posting/reporting duties, and flow these requirements to nonexempt subcontracts—or risk serious OFCCP sanctions.
Overview
- FAR 52.222-26, Equal Opportunity requires covered federal contractors to provide equal employment opportunity and take affirmative action in employment practices. It implements Executive Order 11246 and applies when a contractor has nonexempt federal contracts or subcontracts exceeding $10,000 in the aggregate during any 12-month period, with limited exceptions.
- The clause prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin and extends to applicants and employees across the employment lifecycle.
Key Rules
- Coverage and Exceptions
- The clause applies to covered contractors with aggregate nonexempt federal awards over $10,000 in a 12-month period. It generally does not apply to work performed outside the United States by employees not recruited within the United States, and religious organizations have a limited exemption for hiring based on religion for work connected to their activities.
- Nondiscrimination and Affirmative Action
- Contractors must not discriminate and must take affirmative action in employment, promotion, transfer, termination, compensation, recruitment, and training decisions.
- Notice, Posting, and Advertising
- Contractors must post required notices, include equal opportunity language in job solicitations and advertisements, and notify unions or worker representatives of their commitments.
- Pay Transparency and Records Access
- Contractors may not retaliate against employees or applicants for discussing compensation, subject to a narrow exception for employees with access to compensation data through essential job functions. Contractors must disseminate this protection and allow agency/OFCCP access to premises and relevant records.
- Reporting, Flowdown, and Enforcement
- Contractors must furnish required information, file SF 100 (EEO-1) or successor forms as prescribed, include the clause in nonexempt subcontracts and purchase orders, and comply with OFCCP enforcement actions. Noncompliance can lead to contract termination, suspension, debarment, and other sanctions.
Responsibilities
- Contracting Officers: provide required notices, determine clause applicability, and enforce inclusion where prescribed.
- Contractors: implement nondiscrimination and affirmative action measures, post notices, use compliant recruiting language, submit required reports, maintain records, permit access, and flow down the clause.
- Agencies: oversee compliance through OFCCP and contracting activities, including investigations and sanctions where necessary.
Practical Implications
- This clause is a core labor compliance requirement for many federal contractors and directly affects HR, recruiting, compensation, recordkeeping, and subcontract management.
- Common pitfalls include failing to post notices, omitting required language from job ads, mishandling pay transparency protections, missing EEO-1-related steps, or failing to include the clause in covered subcontracts.
- Contractors should coordinate legal, HR, and contracts teams to ensure policies, postings, and subcontract templates align with OFCCP requirements.