We believe that financial institutions with federal share and deposit insurance will be subject to the Presidential Executive Order on “Combating Race and Sex Stereotyping” (Executive Order 13950).

Executive Order 13950 requires “Government contracting agencies” to include in every “Government contract” provisions related to workplace training that combat race and sex stereotypes. While “Government contract” is not defined, the order includes an exception for Government contracts “exempted in the manner provided” in Executive Order 11246 — which has long been interpreted as applying to banks as “government contractors” by virtue of their access to federal deposit insurance (as stated in two sets of FAQs linked in the resources below).

Because Executive Order 13950 directly incorporates parts of the previous Executive Order 11246, such as its exemptions, we believe that the definition of “Government contract” from Executive Order 11246 would apply. Consequently, we believe Executive Order 13950 would apply to contracts between government contracting agencies and financial institutions with federal share and deposit insurance.

For resources related to our guidance, please see:

• Executive Order 13950 (“Except in contracts exempted in the manner provided by section 204 of Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), as amended, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions: ‘During the performance of this contract, the contractor agrees as follows . . . . The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating. . . .’”)

• OFCCP, 41 CFR 60-1.3 (“Government contract means any agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services. The term ‘personal property,’ as used in this section, includes supplies, and contracts for the use of real property (such as lease arrangements), unless the contract for the use of real property itself constitutes real property (such as easements). The term ‘nonpersonal services’ as used in this section includes, but is not limited to, the following services: Utilities, construction, transportation, research, insurance, and fund depository. The term Government contract does not include:

(1) Agreements in which the parties stand in the relationship of employer and employee; and

(2) Federally assisted construction contracts.”)

• OFCCP, 41 CFR 60-1.3 (“Contracting agency means any department, agency, establishment, or instrumentality in the executive branch of the Government, including any wholly owned Government corporation, which enters into contracts.”)

• OFCCP, Jurisdiction FAQs (“Financial institutions with federal share and deposit insurance are considered to be government contractors within the meaning of the regulations implementing Executive Order 11246 . . .  The implementing regulations for Executive Order 11246 at 41 CFR 60-1.3 have consistently defined a government contract as any agreement or agreement modification between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services.”)

• OFCCP, Executive Order 13496 FAQs (“A bank or other financial institution is a covered contractor if it has an arrangement that meets the definition of a ‘government contract.’ In general, OFCCP interprets ‘government contract’ under Executive Order 13496 as it has under Executive Order 11246. Thus, a bank or other financial institution that obtains federal deposit insurance, acts as an issuing and paying agent for U.S. savings bonds and notes, or is a federal fund depository is a government contractor for purposes of both Executive Order 11246 and Executive Order 13496. In addition, these entities may be covered contractors if they have any other arrangement that meets the definition of a “government contract” under the regulations. Such entities are subject to Executive Order 13496 to the same extent as are other federal contractors.”)