by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law
Headlines often describe President Obama as “going it alone” on public policy in light of congressional inaction. But his boldest moves in favor of workers’ rights are rooted in an obscure statute enacted 65 years ago – the Federal Property and Administrative Services Act of 1949 (FPASA). That statute’s explicit purpose is to establish “an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services” for the federal government.” Most important, it specifically empowers the President to “prescribe policies and directives that the President considers necessary to carry out” FPASA’s purposes.
In late July, President Obama issued two important orders resting directly on his FPASA authority. Executive Order 13672 adds to the prohibitions on employment discrimination by federal contractors a ban on discrimination based on “sexual orientation” or “gender identity.” Executive Order 13673 imposes a variety of measures to insure that federal contractors comply with state and federal labor laws. It further prohibits employers with federal contracts worth $1 million or more from insisting on the mandatory arbitration of worker complaints dealing with sexual assault or harassment or with claims arising under title VII of the Civil Rights Act of 1964. Last February, the President issued Executive Order 13658, imposing a higher minimum wage requirement on federal contractors, as well.
These orders have important precedents. President Kennedy relied on FPASA to prohibit race discrimination by federal contractors, a requirement amplified by President Johnson. President Nixon relied on FPASA to require federal contractors to engage in affirmative action to achieve equality in employment. President Carter used FPASA to impose a temporary system of wage and price controls on federal contractors. President Bush required federal contractors to inform employees of their right not to join a union. These orders have all been upheld in court.