In response to 2020’s continued accounts of brutality and discrimination against Black people, and the corresponding wave of demands for accountability and racial justice, organizations across the country began implementing additional measures aimed at achieving equity in the workplace. In line with these initiatives, many organizations opted to provide various forms of diversity, equity, and inclusion training for their employees. These trainings often cover topics including unconscious bias, systemic racism, and white privilege.
Trump’s Executive Order
Seemingly in an effort to taper these racial justice initiatives, on September 22, 2020, President Trump issued Executive Order 13950, prohibiting federal agencies and contractors, in addition to federal grant recipients, from utilizing any workplace training that promotes “divisive concepts” aimed at combating race and sex stereotyping. The Order denounced curriculum that teaches, for example, that racism is “interwoven into every fabric of America.” Arguing that such principles are “anti-American” and contradictory to our country’s merit-based principles, the Order claimed that inclusion of such topics at workplace trainings “impairs the efficiency of the Federal service.” Fearing loss of funding, the Order had a chilling effect that led many organizations to halt diversity, equity, and inclusion trainings pending further guidance on potential consequences.
Legal Challenges
Executive Order 13950 provoked multiple legal challenges. Prominent civil rights organizations filed a class action lawsuit in the U.S. District Court for the District of Columbia in late October 2020. Less than a month later, a number of organizations providing health care and critical services to the LGBTQ community filed suit in the U.S. District Court for the Northern District of California. The plaintiffs in both cases argued Trump’s Executive Order violated the First and Fifth Amendments of the United States Constitution, based on its prohibition on use of certain speech, and its failure to provide adequate notice of what is required under the Order and how it would be enforced.
U.S. District Court Ruling, Nationwide Reach, and Future Implications
Delivering a significant win for the challengers of Trump’s Order, on December 22, 2020, Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California issued a preliminary injunction barring the federal government from enforcing the majority of the Order. The Court found the plaintiffs were likely to succeed on the merits of their free speech and due process claims and that absent the issuance of a preliminary injunction, plaintiffs were likely to suffer irreparable harm. In its opinion, the Court stated that the plaintiffs’ interest in delivering diversity training and advocacy deemed imperative to their mission outweighs the government’s interest in censoring such trainings. Separately, the Court found the order to be “so vague that it is impossible for Plaintiffs to determine what conduct is prohibited.” The Department of Labor FAQs published with respect to Executive Order 13950, the Court said, “only exacerbated” the ambiguity regarding the conduct prohibited under the Order.
The District Court Judge’s preliminary injunction went into effect immediately, and is effective nationwide. After the Court’s ruling, the Office of Federal Contract Compliance Programs (“OFCCP”) eliminated its hotline for complaints brought under Executive Order 13950. Further, the Department of Labor issued a notice indicating its compliance with the injunction, assuring that investigation and enforcement of complaints brought under Executive Order 13950 would cease immediately. Paired with the Department of Labor’s notice, the injunction allows organizations relying on federal funding to resume diversity trainings without the threat of their funding being pulled out from under them.
President-elect Joe Biden and Vice President-elect Kamala Harris will be sworn into office on January 20, 2021. Given the incoming administration’s expected prioritization of racial equity initiatives, federal contractors need not be concerned about subsequent attempts at limiting diversity training initiatives come inauguration day.
Additional details regarding Trump’s diversity ban Order can be found in Merrell Renaud’s September 29, 2020 blog post.
The case in which the preliminary injunction was issued is Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump, No. 20-CV-07741-BLF, 2020 WL 7640460 (N.D. Cal. Dec. 22, 2020).
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