In July 2023, the Washington legislature passed Senate Bill 5186, which mandates inclusion of select antidiscrimination clauses in every state contract and subcontract for public works, goods, or services executed after January 1, 2024.[i] RCW 49.60.530(3) codifies the now-required antidiscrimination clauses, which prohibit four categories of discrimination against any person because 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 (the “Protected Class”).
Under the new law, public contractors and subcontractors (“Public Contractor”) may not refuse to hire a person because that person is a member of the Protected Class, unless that refusal is based upon a bona fide occupational qualification or if a person with a particular disability would be prevented from properly performing the particular work involved.[ii] Similarly, Public Contractors may not discharge or bar a person from employment or discriminate against any person – either in terms of compensation or other terms and conditions of employment – because that person is a member of the Protected Class.[iii] Last, Public Contractors may not print or circulate (or cause to be printed or circulated) any statement, advertisement, publication, form of application for employment, or make inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to the Protected Class.[iv]
The legislature tasked the Washington Department of Enterprise Services, in collaboration with the Office of Minority and Women’s Business Enterprises, the Office of Equity, and the Washington State Human Rights Commission, with developing standard template contract provisions that will meet the requirements of RCW 49.60.530 (the “Standard Provisions”).[v] A copy of the Standard Provisions with an annotated version can be found here.
In a nutshell, the Standard Provisions require Public Contractors to adhere to the four nondiscrimination provisions summarized above and provide written notice of their obligations to labor organizations with which they may have a collective bargaining agreement or other agreement. And in the event of allegations that any Public Contractors have engaged in any discrimination prohibited by RCW 49.60.530(3), the Standard Provisions obligate Public Contractors to cooperate with any state agency investigation. Under the Standard Provisions, a state agency may suspend a Public Contractor for failing to participate or cooperate with any discrimination-related investigation, and such suspension shall remain in place until the state agency is notified that the Public Contractor is cooperating with the investigating state agency.
If a Public Contractor is found to have engaged in the discrimination identified in RCW 49.30.530(3), the state agency’s remedies under the Standard Provisions include termination of the contract for public works, goods, or services – in whole or in part – and the public contractor, subcontractor, or both may be referred for debarment.[vi] In such a case, RCW 49.60.530 provides Public Contractors with a reasonable time in which to cure noncompliance; however, such noncompliance will be construed as breach of contract, and state agencies will be entitled to damages as authorized by law, including the difference between the original contract amount and the replacement contract amount, all administrative costs related to the replacement contract, and potential penalties imposed under RCW 49.60. In addition, in the event of suspension or termination, state agencies will have the right to deduct from any monies owed to a Public Contractor those amounts due to the state agency arising from a Public Contractor’s discrimination-related default.
Comment: For public works projects, as described in RCW 39.04, et seq., general contractors should expect to see the Standard Provisions incorporated into the Main Contract by the contracting state agency after January 1, 2024; however, general contractors should update their master subcontracts to obligate their public subcontractors to comply with the Standard Provisions as a subcontractor’s failure to comply with RCW 49.60.530 could result in the general contractor’s suspension, termination, debarment, and potential damages. Whether you are a general contractor or subcontractor, Ahlers Cressman & Sleight, PLLC, can provide strategies for compliance with RCW 49.60.530, as well as information and advice on construction-related issues arising from public works contracts.
[i] https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/Senate/5186-S.SL.pdf?q=20231212161831
[ii] RCW 49.60.530(3)(a).
[iii] RCW 49.60.530(3)(b) & (c). RCW 49.60.530(3)(c) provides that it shall not be an unfair practice for an employer to segregate 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.
[iv] RCW 49.60.530(3)(d).
[v] RCW 49.60.530(4).
[vi] See RCW 39.26.200 (noting debarment from consideration of public works contracts may be up to three years).