FAR 52.222-26 Equal Opportunity Clause: EO 14173 and Current Duties

The FAR 52.222-26 Equal Opportunity clause is being phased out of federal contracts. Executive Order 14173, signed January 21, 2025, revoked Executive Order 11246, which was the legal foundation for the clause and for the OFCCP’s affirmative action enforcement program.¹ Federal agencies have since issued class deviations directing contracting officers to stop including the clause in new solicitations and to remove it from existing contracts by modification.²

Current Status of the Clause

The 90-day transition window in EO 14173 expired in April 2025. The Department of Labor has moved to formally rescind the entire regulatory framework at 41 CFR Parts 60-1, 60-2, 60-3, 60-4, 60-20, 60-40, and 60-50 that implemented EO 11246, and has confirmed it has halted enforcement of those regulations.³ EO 14173 specifically directed OFCCP to stop holding contractors responsible for affirmative action and to stop encouraging workforce balancing based on race, color, sex, sexual preference, religion, or national origin.¹

The affirmative action plans, workforce utilization analyses, and OFCCP compliance evaluations that were tied to EO 11246 are no longer required.

What the Clause Used to Require

FAR 52.222-26 applied to any contractor whose nonexempt federal contracts and subcontracts exceeded $10,000 in aggregate value during any 12-month period, and it reached all of the contractor’s facilities, not just the site performing the government work.⁴

Covered contractors could not discriminate against employees or applicants based on race, color, religion, sex, sexual orientation, gender identity, or national origin. They also had to take affirmative action across recruiting, hiring, promotions, training, and termination. A pay transparency provision barred retaliation against employees who asked about, discussed, or disclosed their own or a coworker’s compensation, with a narrow carve-out for workers whose duties gave them access to pay data.⁴

What EO 14173 Requires Instead

The revocation did not leave a vacuum. EO 14173 introduced two contract terms that agency heads must include in every contract and grant award.

The first is a materiality agreement. The contractor agrees that its compliance with all applicable federal anti-discrimination laws is material to the government’s payment decisions under the False Claims Act (31 U.S.C. § 3729(b)(4)). A contractor found to be violating civil rights laws could therefore face False Claims Act liability, with exposure to treble damages, rather than only a contract dispute.

The second is a DEI certification. The contractor must certify that it does not operate any programs promoting DEI that violate applicable federal anti-discrimination laws.⁵ The order does not define which programs violate anti-discrimination laws, leaving contractors to assess their own risk. Many companies have responded by renaming or restructuring internal programs rather than eliminating them.

Nondiscrimination Duties That Still Apply

The end of EO 11246 is not a general loosening of civil rights law. Several independent frameworks continue to apply to federal contractors.

Title VII

Title VII of the Civil Rights Act prohibits employment discrimination based on race, color, religion, sex, and national origin for employers with 15 or more employees, and the EEOC enforces it independently of OFCCP. Title VII does not require formal affirmative action plans, but it does prohibit practices that cause a disproportionate adverse effect on a protected group unless the practice is job-related and consistent with business necessity.⁶

Section 503 and VEVRAA

OFCCP has confirmed that Section 503 of the Rehabilitation Act, protecting workers with disabilities, and the Vietnam Era Veterans’ Readjustment Assistance Act remain in effect. Contractors must continue to comply with their obligations under those statutes and implementing regulations.⁷ OFCCP’s Section 503 and VEVRAA affirmative action program certification portal has remained closed while the agency updates its systems, so watch OFCCP’s website for a reopening announcement.

EEO-1 Reporting

The EEO-1 Component 1 report is required by Title VII, not by EO 11246, so it survives the revocation. Private employers with 100 or more employees and federal contractors with 50 or more employees who meet certain criteria must submit annual workforce demographic data broken down by job category, sex, and race or ethnicity.⁸ OMB has approved the form through at least November 2026. Filing windows shift from year to year, so check the EEOC’s data collections page for exact dates.

Workplace Poster

Covered employers must still display the EEOC’s “Know Your Rights: Workplace Discrimination is Illegal” poster where employees and applicants can see it. That requirement sits under Title VII and other anti-discrimination statutes, independent of EO 11246.⁹

Record Retention

The two-year retention requirement from 41 CFR 60-1.12 was part of the EO 11246 framework and is being rescinded with the rest of those regulations.³ Contractors still have retention obligations under Title VII, Section 503, and VEVRAA. The EEOC generally expects employers to keep personnel and employment records for at least one year, and longer if a charge of discrimination has been filed. Section 503 and VEVRAA carry their own two-year retention rules under their implementing regulations.

If Your Contract Still Contains the Clause

The Department of Defense class deviation directed contracting officers to remove FAR 52.222-26 from existing contracts through modifications and to exclude it from new solicitations.² Other agencies have issued similar guidance. If your contract still carries the clause because it has not yet been modified, the underlying executive order and regulations no longer carry enforcement authority.

The flow-down requirement in FAR 52.222-26 was tied directly to EO 11246 and no longer has legal backing. Subcontractors do remain subject to any EO 14173 terms that a prime contractor passes through.

The safer course under a legacy contract is to request a modification aligning the contract with current requirements. The enforcement mechanism is gone, but leaving outdated language in place creates confusion about what your actual obligations are. If the contracting officer sends a modification removing the clause, accept it and update your subcontracts to match.

1
Federal Register. Ending Illegal Discrimination and Restoring Merit-Based Opportunity
2
acq.osd.mil. Class Deviation 2025-O003
3
Federal Register. Rescission of Executive Order 11246 Implementing Regulations
4
Acquisition.GOV. Equal Opportunity
5
The White House. Ending Illegal Discrimination And Restoring Merit-Based Opportunity
6
Congress.gov. Executive Order 11246
7
U.S. Department of Labor. Office of Federal Contract Compliance Programs
8
U.S. Equal Employment Opportunity Commission. EEO Data Collections
9
U.S. Equal Employment Opportunity Commission. Know Your Rights: Workplace Discrimination is Illegal Poster