[Federal Register Volume 87, Number 20 (Monday, January 31, 2022)]
[Notices]
[Page 4955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01478]


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DEPARTMENT OF JUSTICE

[Docket No. CRT 142]


Notice of Report on Lawful Uses of Race or Sex in Federal 
Contracting Programs

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Notice.

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SUMMARY: This notice announces the availability on the Department of 
Justice's website of an updated report regarding the legal and 
evidentiary frameworks that justify the continued use of race or sex, 
in appropriate circumstances, by federal agencies to remedy the current 
and lingering effects of past discrimination in federal contracting 
programs.

FOR FURTHER INFORMATION CONTACT: Andrew Braniff, Deputy Section Chief, 
Employment Litigation Section, Civil Rights Division, Department of 
Justice, (202) 514-3831, [email protected]. If you use a 
telecommunications device for the deaf (TDD) or a text telephone (TTY), 
call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: A substantial body of evidence, both 
quantitative and qualitative, demonstrates the continued pervasiveness 
of discriminatory barriers that impede the full and fair participation 
of businesses owned by women and people of color in government 
contracting. The nature and breadth of the evidence discussed in the 
report updates and expands on prior reports--in 1996 and 2010--and 
supports the compelling interest in the continued use of federal 
programs that contain remedial measures to eliminate discriminatory 
barriers to contracting opportunities for businesses owned by women and 
people of color. See Adarand v. Constructors, Inc. v. Pena, 515 U.S. 
200 (1995).
    Section I of the report provides an overview of the legal landscape 
surrounding constitutional challenges to the use of race and sex in 
contracting programs that are subject to strict and intermediate 
scrutiny, including a discussion of some recent cases challenging 
various federal and state contracting programs. Section II reviews a 
substantial body of statistical evidence published in the last decade, 
which demonstrates the existence of significant disparities in the 
amount of public contracting dollars going to businesses owned by women 
and people of color as compared to their availability for such 
contracts. Section III explores the various ways that discriminatory 
barriers can limit access to contracting markets, resulting in the 
statistical disparities identified in Section II. These include race 
and sex discrimination by procurement agencies and prime contractors, 
whether overt or subtle; exclusion from business networks crucial to 
making the connections necessary to learn about and compete effectively 
for contracting opportunities; and discrimination by bonding companies 
and suppliers. Section IV discusses stark disparities in the formation 
and success of businesses owned by women and people of color as 
compared to other businesses. Section V addresses discriminatory 
barriers that impose significant burdens on businesses owned by women 
and people of color--affecting both their ability to access capital to 
form and grow businesses in the first instance as well as their ability 
to compete effectively for contracts. Finally, Section VI addresses how 
the economic downturn that began in 2020 as a result of the COVID-19 
pandemic has disproportionately affected businesses owned by women and 
people of color.
    Evidence discussed in the report is listed in the three appendices. 
Appendix A identifies congressional hearings from 2010 to 2021 that 
address challenges facing business owned by women and people of color. 
Appendix B identifies dozens of disparity studies published between 
2010 and 2021. Appendix C identifies additional studies and 
documentation pertaining to the issues discussed in the report.
    The report is available on the Department of Justice's website at: 
https://www.justice.gov/crt/page/file/1463921/download.

     Dated: January 20, 2022.
Johnathan Smith,
Deputy Assistant Attorney General, Civil Rights Division.
[FR Doc. 2022-01478 Filed 1-28-22; 8:45 am]
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