What This Bill Does
This bill prohibits companies that receive contracts from the federal government from using racial hiring quotas, benchmarks, or goals. The bill requires all federal contracts to include language that contractors cannot discriminate based on race in their hiring practices. The bill states that existing regulations have failed to prevent federal contractors from using racial hiring quotas.
Who It Affects
Companies that bid for or hold federal government contracts and subcontracts. Federal agencies that award contracts. The Secretary of Labor, who oversees enforcement.
Key Provisions
- All new federal contracts must require contractors to certify they did not use racial hiring quotas, benchmarks, or goals during the five years before signing the contract (Sec. 4(a)(1))
- Contractors cannot use any system of racial hiring quotas, benchmarks, or goals while performing federal contracts (Sec. 4(a)(2))
- The Secretary of Labor can exempt specific contracts if special circumstances in the national interest require it (Sec. 4(b))
- The Secretary of Labor must issue regulations within 90 days of the law taking effect (Sec. 5(a)(1))
- The Secretary of Labor can investigate violations and the government can cancel contracts or ban contractors from future government work if they violate this law (Sec. 6)
What Changes
Federal contracts will require contractors to promise they have not used racial hiring quotas, benchmarks, or goals in the previous five years. Contractors must promise not to use these practices while working on federal contracts. The government gains new authority to cancel contracts or ban companies from government work if they violate these requirements.
Important Definitions
"Contractor" means any company that wins a federal contract or subcontract, including subcontractors at any level. "Employment practices" means all hiring and workplace decisions including recruitment, selection, promotion, pay, benefits, and termination. "Executive agency" means the definition already used in federal procurement law. "National interest" means national security, economic, or public health interests, but does not include racial justice objectives, affirmative action, ESG (environmental, social, and governance), DEI (diversity, equity, and inclusion), or CSR (corporate social responsibility).
Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 973
To prohibit Federal contractors from imposing racial hiring quotas,
benchmarks, or goals.
IN THE SENATE OF THE UNITED STATES
MARCH 23, 2023
Mr. COTTON (for himself, Mr. SCOTT of Florida, Mr. HAGERTY, and Mr.
HAWLEY) introduced the following bill; which was read twice and referred
to the Committee on Homeland Security and Governmental Affairs
A BILL
To prohibit Federal contractors from imposing racial hiring
quotas, benchmarks, or goals.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Protecting Equal Op-
4
portunity from ESG Act’’.
5
SEC. 2. PURPOSE.
6
Acknowledging that distinctions between citizens
7
solely because of their ancestry are, by their very nature,
8
odious to a free people whose institutions are founded
9
upon the doctrine of equality, and recognizing that exist-
10
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•S 973 IS
ing regulations have failed to eradicate the use of racial
1
hiring quotas among Federal contractors, the purpose of
2
this Act is to require contracts with the Federal Govern-
3
ment to include an equal opportunity clause prohibiting
4
racial hiring quotas, benchmarks, or goals.
5
SEC. 3. DEFINITIONS.
6
For purposes of this Act:
7
(1) CONTRACTOR.—The term ‘‘contractor’’—
8
(A) means any person that is awarded a
9
contract with the Federal Government or a sub-
10
contract under such a contract, including any
11
subcontractor (at any tier) of such person; and
12
(B) includes a person that—
13
(i) is a lessor or lessee; or
14
(ii) is an employer of a worker per-
15
forming work on a contract with the Fed-
16
eral Government whose wages are cal-
17
culated pursuant to a special certificate
18
issued under section 14(c) of the Fair
19
Labor Standards Act of 1938 (29 U.S.C.
20
214(c)).
21
(2) EMPLOYMENT PRACTICES.—The term ‘‘em-
22
ployment practices’’—
23
(A) means all terms and conditions of em-
24
ployment (including of any paid or unpaid fel-
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•S 973 IS
lowship or internship), including all practices
1
relating to the screening, recruitment, referral,
2
nomination, selection, training, appointment,
3
promotion, demotion, and assignment of per-
4
sonnel; and
5
(B) includes advertising, hiring, assign-
6
ments, classification, discipline, layoff and ter-
7
mination, upgrading, transfer, leave practices,
8
rate of pay, fringe benefits, or other forms of
9
pay or credit for services rendered and use of
10
facilities.
11
(3) EXECUTIVE AGENCY.—The term ‘‘executive
12
agency’’ has the meaning given that term in section
13
133 of title 41, United States Code.
14
(4) NATIONAL INTEREST.—The term ‘‘national
15
interest’’—
16
(A) means a national security interest, eco-
17
nomic interest, or public health and welfare in-
18
terest; and
19
(B) does not include any purported inter-
20
est in—
21
(i) racial or social justice objectives,
22
affirmative action agendas, or any other
23
race-based considerations; or
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(ii) promoting, enabling, or excusing
1
any policy, initiative, or practice of an em-
2
ployer concerning—
3
(I) environmental, social, and
4
governance
(commonly
known
as
5
‘‘ESG’’);
6
(II) diversity, equity, and inclu-
7
sion (commonly known as ‘‘DEI’’); or
8
(III) corporate social responsi-
9
bility (commonly known as ‘‘CSR’’).
10
(5) SECRETARY.—The term ‘‘Secretary’’ means
11
the Secretary of Labor.
12
SEC.
4.
PROHIBITION
ON
IMPOSING
RACIAL
HIRING
13
QUOTAS.
14
(a) IN GENERAL.—The head of each executive agency
15
shall, except as provided in subsection (b), ensure that
16
each contract entered into by the executive agency on or
17
after the date of enactment of this Act includes require-
18
ments that the contractor shall—
19
(1) certify that, during the 5-year period imme-
20
diately preceding the date on which the contract is
21
entered into, the contractor did not initiate, carry
22
out, or enforce any system of quotas, benchmarks,
23
or goals in regard to employment practices that en-
24
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•S 973 IS
courage or require any discrimination on the basis of
1
race; and
2
(2) not, during the performance of the contract,
3
initiate, carry out, or enforce any system of quotas,
4
benchmarks, or goals in regard to employment prac-
5
tices which encourage or require any discrimination
6
on the basis of race.
7
(b) EXCEPTION FOR LOOKBACK REQUIREMENT.—
8
Notwithstanding subsection (a), the Secretary may exempt
9
the head of an executive agency from the requirement to
10
include the certification described in subsection (a)(1) in
11
a specific contract, subcontract, or purchase order if the
12
Secretary determines that special circumstances in the na-
13
tional interest so require.
14
SEC. 5. REGULATIONS AND IMPLEMENTATION.
15
(a) REGULATIONS REQUIRED.—
16
(1) DEPARTMENT OF LABOR.—Not later than
17
90 days after the date of enactment of this Act, the
18
Secretary shall issue such regulations as are nec-
19
essary to implement this Act.
20
(2) FEDERAL ACQUISITION REGULATION.—Not
21
later than 90 days after the date on which the Sec-
22
retary issues regulations under paragraph (1), the
23
Federal Acquisition Regulatory Council shall amend
24
the Federal Acquisition Regulation, consistent with
25
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such regulations, to provide for inclusion in any
1
Federal procurement solicitation or contract the re-
2
quirements under section 4.
3
(b) AGENCY IMPLEMENTATION.—Not later than 90
4
days after the date on which the Secretary issues any reg-
5
ulations under subsection (a)(1) and except as provided
6
in section 4(b), the head of each executive agency shall
7
ensure that any contract entered into by the executive
8
agency complies with the requirements set forth in section
9
4(a).
10
SEC. 6. ENFORCEMENT.
11
(a) IN GENERAL.—The Secretary shall have the au-
12
thority to investigate potential violations of this Act and
13
obtain compliance, including as provided in subsection (b).
14
(b) PENALTIES FOR NONCOMPLIANCE.—In the case
15
of a contractor that violates a contract requirement under
16
section 4—
17
(1) the relevant executive agency may cancel,
18
terminate, or suspend (in whole or in part) the ap-
19
plicable contract; and
20
(2) the Secretary may initiate a debarment pro-
21
ceeding with respect to the contractor.
22
Æ
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