On September 22, 2020, President Trump issued an Executive Order seeking to combat “offensive and anti-American race and sex stereotyping and scapegoating.” [https://www.dol.gov/agencies/ofccp/executive-order-13950]  As described in my previous blog post [https://workingtogether.pullcomblog.com/archives/executive-order-puts-federal-contractors-and-grant-recipients-on-notice-end-divisive-diversity-training-or-risk-being-barred-from-doing-business-with-the-federal-government/], this order expanded a ban – announced a few weeks earlier — on “un-American” social sensitivity training at federal agencies to also include all federal contractors and grant recipients.  The Executive Order now faces two separate legal challenges from a host of prominent civil rights organizations.

On October 29, 2020, the National Urban League (“NUL”) and the National Fair Housing Alliance (“NFHA”) filed a class action lawsuit against the Trump administration in the U.S. District Court for the District of Columbia. In their Complaint, the NUL and NFHA allege that President Trump’s Executive Order “is an extraordinary and unprecedented act by the Trump Administration to undermine efforts to foster diversity and inclusion in the workplace.”  The NUL and NFHA are being represented by the NAACP Legal Defense and Educational Fund, Inc.

The Complaint asserts, among other things:

• EO 13950 prohibits … current and prospective federal contractors and grant recipients… from discussing and promoting concepts like, among other things, systemic race and sex discrimination and implicit race and sex biases.  In so doing, EO 13950 prevents Plaintiffs from effectively addressing the persistent harms, privileges, and disadvantages associated with systemic discrimination and implicit biases.  This broad-based prohibition of private speech on matters of immense public concern and public welfare violates the guarantees of Free Speech, Equal Protection, and Due Process, which are fundamental to the rights secured in the United States Constitution.  The depth and scope of EO 13950’s constitutional flaws are alarming and, if left unremedied, will erode the core principles of our democracy and the foundations of our pluralistic society.

The Plaintiffs further allege:

• EO 13950 utilizes imprecise and ill-defined terms that reflect factually inaccurate viewpoints and opinions of President Trump and are dependent on the speculative and subjective reactions of individuals to the protected speech.  The difficulty — if not impossibility – of knowing precisely what is included in the wide swath of speech censored by EO 13950 has already had, and will continue to have, a broad chilling effect.  To protect their status as federal contractors or grant recipients, Plaintiffs and the Class would have to err on the side of caution and interpret the EO 13950 broadly to ensure compliance with its vague and seemingly expansive mandates.  When combined with the EO’s encouragement that individuals report perceived violations of the Order’s terms by calling a “hotline” telephone number at the Department of Labor, the uncertain boundaries of the speech purportedly prohibited by the Order creates a system of suppression as hostile to the First Amendment’s core protections as can be imagined.

The Plaintiffs are seeking, among other things, a declaration that the Executive Order is unlawful and invalid, and a permanent injunction barring the Trump Administration from implementing or enforcing the Executive Order.

The second legal challenge to the Executive Order was filed on November 2, 2020 by a group of organizations and individuals who specialize in the delivery of high-quality health care and other critical services to members of the LGBT community.  These plaintiffs also train law enforcement and corrections officials and other government agencies on how to avoid inflicting discrimination and harm within the juvenile and criminal justice systems.  The plaintiffs are represented by, among others, the Lambda Legal Defense and Education Fund, Inc.  In their lawsuit, filed in the U.S. District Court for the Northern District of California, Plaintiffs allege that Executive Order 13950 violates the First and Fifth Amendments by limiting the language that can be used in training:

Plaintiffs work every day to combat the systemic barriers to equality, housing social services, and the juvenile and criminal justice systems.  To do this, they deploy a variety of training tools – including discussions of historic and current systemic racism, sexism, anti-LGBT bias, implicit bias, intersectionality, and cultural humility.  These tools are grounded in fact, widely accepted, tested, and embraced in the fields of public health and criminal justice as effective in overcoming these systemic barriers.  The President wants to suppress this speech, no matter how effective it is, or how crucial it is to protecting vulnerable people from harm, because acknowledging these system barriers that threaten the lives of some people can make others uncomfortable.

The Plaintiffs further allege that the Executive Order is so vaguely worded and inartfully drafted that it “creates a regime in which the line between allowable and prohibited speech is so murky, enforcement poses a danger of arbitrary and discriminatory application, a danger that has already become real for Plaintiffs.”  Like the plaintiffs in the NUL & NFHA case, the Plaintiffs in the Lambda case ask the court to issue a declaratory judgment that Executive Order 13950 is unconstitutional, and to enjoin its implementation.

It will be interesting to see how these lawsuits proceed in their respective jurisdictions.  It is likely that any decision issued in the near term will be appealed.  It is also probable that a Biden administration will rescind the Executive Order, as reported by several commentators, but that remains to be seen.

Until the constitutionality of Executive Order 13950 is decided, many federal contractors and grant recipients are unclear as to how to proceed with diversity training programs.  Craig Leen, head of the Labor Department’s Office of Federal Contract Compliance Programs (“OFCCP”), sought to dispel some of the confusion around the question of whether unconscious bias training would be permissible under the order.  At a recent labor conference hosted by the New York University School of Law, Leen said unconscious bias training is “perfectly fine,” as long as it “teaches that everyone, based on the human condition, has unconscious biases” and doesn’t call out a particular race or sex as being inherently biased.  While Leen’s statement may provide some clarity, the continued uncertainty over what would be considered permissible diversity or sensitivity training under the Order reinforces the need for federal contractors and grant recipients to seek guidance from legal counsel before conducting such training.

Notwithstanding this uncertainty, the Department of Labor is proceeding with full vigor to ensure compliance with EO 13950.  Indeed, in a memo to OFCCP leadership issued last week, the Labor Department’s Office of Inspector General, which is responsible for auditing agency programs and operations, and reviewing their “effectiveness, efficiency, economy, and integrity” according to the agency website, indicated that it would focus on “actions taken by the Department [of Labor] to ensure compliance with EO 13950.”  [https://www.oig.dol.gov/public/oaprojects/EO%2013950%20Engagement%20Ltr_110520.pdf]

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