On September 22, 2020, President Trump issued Executive Order 13950, an Executive Order on Combating Race and Sex Stereotyping (the “Order”), prohibiting federal contractors from conducting workplace diversity or implicit-bias training that promotes “divisive concepts” or perpetuates the belief that “America is an irredeemably racist and sexist country.” The Order, which also directs federal agencies to look for ways to impose the same restrictions on federal grant recipients, followed a September 4, 2020 Memorandum from the Office of Management and Budget (“OMB”) that instructed federal agencies to identify any potentially “un-American” workplace training programs that teach critical race theory or white privilege to federal employees. The new Order appears intended to target the types of anti-racism workplace training programs that have proliferated in the wake of the killing of George Floyd and the subsequent national reckoning with institutionalized racism.
The Order states, among other things, that “it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce” and that “Federal contractors will not be permitted to inculcate such views in their employees.” To promote that goal, the Order requires that, effective November 21, 2020, all new and amended federal government contracts include language prohibiting the contractor from implementing any workplace training that endorses any of the following “divisive concepts”:
- one race or sex is inherently superior to another race or sex;
- an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
- an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
- members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
- an individual’s moral character is necessarily determined by his or her race or sex;
- an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
- any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
- meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
The Order directs agencies to require that contractors with unionized workforces send union representation a notice advising the union of the prohibited diversity training protocols, and that this notice be conspicuously posted at the workplace.
Additionally, the Order directs agencies to require contractors to include the Order’s prohibitions in every subcontract or purchase order, ensuring that subcontractors and vendors will also be bound by the same constraints.
Notably, the new prohibitions will apply to any training conducted by a federal contractor or subcontractor, not limited to training presented to employees who are engaged in work under federal government contracts or subcontracts.
Contractors that administer diversity or implicit bias training in violation of agency rules implementing the Order may be subject to harsh penalties, including termination of government contracts or a declaration of ineligibility for future federal contracting. The Office of Federal Contract Compliance Programs (OFCCP), the division of the U.S. Department of Labor responsible for contractors’ compliance with nondiscrimination laws, has already launched a hotline to receive and investigate complaints under both the new Order and under Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin. According to an OFCCP press release, employees can report offending training programs by phone, email or through the OFCCP’s website. Notably, although OFCCP acknowledges that the specific requirements in the Order apply only to federal contracts entered into 60 days after the date of the Order, the press release asserts that the training programs prohibited by the new Order might also violate Executive Order 11246’s prohibitions on discrimination, echoing the new Order’s suggestion that workplace trainings including the listed “divisive concepts” could contribute to a hostile work environment and expose a contractor to Title VII liability.
The Order directs the OFCCP to soon publish a Federal Register notice seeking copies of diversity and inclusion training, workshop, or similar program materials that contractors offer to their employees. The Order also authorizes the U.S. Attorney General and the Equal Employment Opportunity Commission to issue further guidance to assist employers in developing diversity and inclusion training programs that would not run afoul of federal anti-discrimination laws.
Industry groups will likely challenge the Order on procedural and constitutional grounds, so it is possible that the Order will be enjoined before its provisions take effect on November 21. Contractors should follow these legal challenges as they inevitably wind their way through the federal court system.
Legal challenges notwithstanding, the Order as enacted does not prevent contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, but any workplace training relating to these subjects must be consistent with the above requirements. Before entering into a new or amended federal contract, contractors should review their workplace training materials, including any training materials used by a third-party vendor, to determine whether they could be viewed as endorsing or promoting “divisive concepts,” and whether any adjustments may be warranted.
Recent guidance from the OMB suggests that contractors may be able to identify offending training materials by conducting keyword searches for the following terms: “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.” Anti-racism training programs, which often contain these terms, may violate the Order if the materials are presented in a way that teaches, advocates, or promotes the listed “divisive concepts.” For instance, training that endorses the idea that white employees, due to their white privilege, should feel guilt or anguish on account of their race, or unconscious bias training that teaches that white people or men are inherently racist or sexist, are likely prohibited by the Order. However, it might be possible for contractors to conduct workplace diversity or inclusion training programs that refer to these concepts in an objective manner without endorsing or prescribing them.
The WilmerHale employment, anti-discrimination, and government contracting teams will continue to track these developments and are available to assist contractors in evaluating their current diversity training programs in light of the Order.