By: Jarrad Wright
At the end of September, President Trump issued Executive Order 13950 innocuously titled “Combating Race and Sex Stereotyping,” which has ignited a storm of controversy among employers that do contracting with the federal government. Among other things, the Executive Order bars federal contractors and subcontractors from conducting certain types of racial sensitivity trainings.
More specifically, the Executive Order states that federal contractors “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.” This prohibition includes any training that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” In addition, the Executive Order places similar restrictions on entities receiving federal funding and grants.
While the Executive Order took effect immediately, its requirements, with certain exceptions, apply only to contracts entered into after November 21, 2020.
Shortly after the Executive Order was issued, the Office of Management and Budget (“OMB”) issued a memorandum to provide guidance to federal agencies in implementing the order. OMB’s memorandum directs federal agencies to identify all training programs related to diversity and inclusion conducted by the agency or by outside vendors and the costs of such programs. The memorandum further requires agencies to review all government contractor workplace training programs to determine whether they comply with the Executive Order. All statements of work and future government contracts also must comply with the Executive Order’s requirements.
Although the implementation of the Executive Order is ongoing and the situation is fluid, it has had an immediate impact. The U.S. Office of Personnel Management reportedly has directed all federal agencies to submit to the OPM for review all training programs related to diversity and inclusion, even if such materials previously had been approved. Likewise, the Department of Justice has postponed diversity and inclusion training programs, pending further review.
OFCCP Info Request
The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) also has published in the Federal Register a notice seeking “comments, information, and materials from the public relating to workplace trainings that involve race or sex stereotyping or scapegoating.” Significantly, OFCCP defines “race and sex scapegoating” broadly as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.” “Scapegoating” encompasses the view “that, consciously or unconsciously, and by virtue of his or her race or sex, members or any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
The OFCCP’s information request specifically seeks materials from federal contractors, federal subcontractors, and their employees, and encourages federal contractors and subcontractors to voluntarily submit materials for review. In that instance, if a contractor corrects non-compliant materials, the OFCCP states it will “not take enforcement actions.” The OFCCP, however, reserves the right to institute enforcement proceedings should non-compliant materials not be corrected. Finally, the notice includes a public hotline and email address for the public to “confidentiality report to the Federal government the unlawful use of racist or sexist training materials.”
Needless to say, President Trump’s issuance of Executive Order 13950 is a politically charged issue, and its continued enforcement, effectiveness, and existence in all likelihood will depend on the outcome of the presidential election. If former Vice President Joseph Biden is elected, the Executive Order is likely to be rescinded early in his administration. If President Trump is re-elected, on the other hand, the Executive Order will remain in place and federal agencies will continue the process of providing clarifications and instructions on its requirements. In any event, legal challenges to the effectiveness of the order and its implementation by federal agencies are likely to occur, as interested entities ranging from civil rights organizations to the U.S. Chamber of Commerce have raised questions and concerns about the Executive Order.
At least for the time being, the Executive Order remains in place, and all government contractors and subcontractors need to consider its immediate impact upon their operations. This may include temporarily postponing diversity training and programs until after the election or until further clarification is forthcoming from the federal government on the order. What is clear is that before taking any action, it always is best to consult with counsel knowledgeable about the employment aspects of federal contracting law.
At this point, the longer-term impact of the President’s Executive Order is simply unknown. That said, going forward, the order has the potential to significantly impact all companies that do business with the federal government. Accordingly, we shall continue to keep you informed of further developments on the impact of the President’s race and sex stereotyping order.
Jarrad Wright is a partner at DiMuroGinsberg, P.C. and can be reached at firstname.lastname@example.org.