A sign in Jackson, Miss., in May 1961. The contract clause deleted from federal regulations last month dated back to the mid-1960s and specifically said entities doing business with the government should not have segregated waiting rooms, drinking fountains or transportation.
William Lovelace/Hulton Archive/Getty Images
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William Lovelace/Hulton Archive/Getty Images
After a recent change by the Trump administration, the federal government no longer explicitly prohibits contractors from having segregated restaurants, waiting rooms and drinking fountains.
The segregation clause is one of several identified in a public memo issued by the General Services Administration last month, affecting all civil federal agencies. The memo explains that it is making changes prompted by President Trump’s executive order on diversity, equity and inclusion, which repealed an executive order signed by President Lyndon B. Johnson in 1965 regarding federal contractors and nondiscrimination. The memo also addresses Trump’s executive order on gender identity.
While there are still state and federal laws that outlaw segregation and discrimination that companies need to comply with, legal experts say this change to contracts across the federal government is significant.
“It’s symbolic, but it’s incredibly meaningful in its symbolism,” says Melissa Murray, a constitutional law professor at New York University. “These provisions that required federal contractors to adhere to and comply with federal civil rights laws and to maintain integrated rather than segregated workplaces were all part of the federal government’s efforts to facilitate the settlement that led to integration in the 1950s and 1960s.
“The fact that they are now excluding those provisions from the requirements for federal contractors, I think, speaks volumes,” Murray says.
Deleted mentions of drinking fountains, transportation, housing
The clause in question is in the Federal Acquisition Regulation, known as the FAR — a huge document used by agencies to write contracts for anyone providing goods or services to the federal government.
Clause 52.222-21 of the FAR is titled “Prohibition of Segregated Facilities” and reads: “The Contractor agrees that it does not and will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it does not and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained.”
It defines segregated facilities as work areas, restaurants, drinking fountains, transportation, housing and more — and it says you can’t segregate based on “race, color, religion, sex, sexual orientation, gender identity, or national origin.”
Several federal agencies, including the departments of Defense, Commerce and Homeland Security, have notified staff who oversee federal contracts that they should start instituting these changes.
A recent notice from the National Institutes of Health shows that the change is already in effect. The notice, regarding a maintenance agreement for scientific freeze dryers, cites the GSA memo and reads, “FAR 52.222-21, Prohibition of Segregated Facilities and FAR 52.222-26 — Equal Opportunity will not be considered when making award decisions or enforce requirements.”
To be clear, all businesses — those that have government contracts and those that do not — still need to follow federal and state laws, including the Civil Rights Act of 1964, which makes segregated facilities illegal.
In effect immediately
One federal worker who works on contracts says they were “shocked” when they received notice about the FAR changes from their agency. NPR has agreed not to identify the worker because they fear being fired for speaking to the media without authorization.
They said that the process used to institute these changes, without a typical public notice or comment period of 45 to 90 days, is usually reserved for national emergencies.
“The way that they’re implementing this in the contracting field is essentially subverting democracy — you’re supposed to allow agencies to comment on this, contracting officers to comment on it, and think through the implications carefully,” the worker said. “By doing this, they’re essentially ramming things through hoping no one’s going to notice.”
The General Services Administration did not answer NPR’s question about why the agency did not follow the usual public notice and comment procedure, or a question about why the “segregated facilities” clause was removed.
In a statement, GSA spokesperson Will Powell wrote: “GSA has taken immediate action to fully implement all current executive orders and is committed to taking action to implement any new executive orders.”
Recent history
Kara Sacilotto, an attorney at the Wiley law firm in Washington, D.C., which specializes in federal contracts, speculates that the provision was flagged because it was revised under the Obama administration to include “gender identity.” That change was made, she says, “to implement an Obama era Executive Order 13672, and that executive order from the Obama administration is one of the ones that President Trump, in his second term, rescinded,” she explains. “And so, along with [Trump’s] other executive orders about gender identification, I would suspect that is the reason why this one got identified on the list.”
The memo does not say to exclude just the “gender identity” part of the clause, however. It says to exclude the whole thing.
Murray, the law professor, says racial segregation is not as far away in history as it may seem. She remembers a trip to Washington, D.C., in 1985, when her father, a Jamaican immigrant, took her to Woodward & Lothrop, a department store where he had worked when he’d been a student at Howard University.
She’d thought he had been a salesman at the store, which closed in 1995. “He’s like, ‘No, no, no, I only worked in the back because Black people weren’t allowed to be on the sales floor,'” she recalls. When it comes to segregation in America, she says, “it’s not far removed at all.”
