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Washington Public Contracts Require New Anti-Discrimination Clause Effective January 1, 2024



While current anti-discrimination laws in Washington (RCW Chapter 49.60) already apply to most employers, SB 5186 effective January 1, 2024, now requires that anti-discrimination clauses incorporating those protections be added to all public works contracts and subcontracts. Although not a significant expansion of existing law, which explains why little opposition was raised to its passage, it will continue to emphasize the importance of keeping the workplace open to all qualified applicants and add additional compliance issues to public works contracts.

Effective January 1, 2024, every state contract and subcontract for public works or for goods or services must contain a nondiscrimination clause prohibiting discrimination on the bases enumerated in the new law. The nondiscrimination clause must contain a provision requiring contractors and subcontractors to give written notice of their obligations under that clause to labor organizations with which they have a collective bargaining or other agreement.

The new clause primarily incorporates the standard assurances of nondiscrimination employment on the basis of age, sex, marital status, sexual orientation, gender identity, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification.

The law does clarify that the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved. It also makes clear that the law does not affirmatively require an employer to establish employment goals or quotas based on sexual orientation, and that it is not an unfair practice for an employer to have separate washrooms or locker facilities on the basis of sex, or to “base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.”

Generally, Washington’s anti-discrimination laws are enforced through the State Human Rights Commission, and federal laws are policed by the Equal Employment Opportunity Commission. Both federal and state agencies have resources to aid employers in complying with these policies. However, the new law directs the Department of Enterprise Services, in collaboration with the Office of Minority and Women's Business Enterprises, the Office of Equity, and the Commission to develop standard template contract provisions for public works and goods and services contracts to meet the provisions of this section. DES has provided some template language for compliance with the new law. Click here to view the template. 

Questions related to the new law should be directed to your trusted legal counsel.

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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