Biden Revokes Executive Order 13950

Constangy, Brooks, Smith & Prophete, LLP
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Constangy, Brooks, Smith & Prophete, LLP

A quick move, but not a surprising one.

President Biden issued more than a dozen executive orders during his first day in office. One of them revokes President Trump’s Executive Order on Combating Race and Sex Stereotyping. President Trump’s Executive Order 13950 -- which (among other things) prohibited federal contractors from conducting training on “divisive” concepts related to race and sex stereotyping and scapegoating -- was controversial and drew intense opposition from both employers and civil rights organizations. In December, a federal judge instituted a nationwide injunction barring enforcement of its main provisions.

The new Executive Order is entitled “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” and takes a markedly different view of America than did Executive Order 13950. President Trump’s Executive Order proclaimed the idea that “America is an irredeemably racist and sexist country” is “pernicious and false.” In contrast, President Biden’s Executive Order opens with the following policy statement:

Equal opportunity is the bedrock of American democracy, and our diversity is one of our country’s greatest strengths. But for too many, the American Dream remains out of reach. Entrenched disparities in our laws and public policies, and in our public and private institutions, have often denied that equal opportunity to individuals and communities. Our country faces converging economic, health, and climate crises that have exposed and exacerbated inequities, while a historic movement for justice has highlighted the unbearable human costs of systemic racism. Our Nation deserves an ambitious whole-of-government equity agenda that matches the scale of the opportunities and challenges that we face.

It is therefore the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government. Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies (agencies) must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.

In addition to rescinding Executive Order 13950, President Biden’s Executive Order directs the Office of Management and Budget to “study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals” and to “identify opportunities to promote equity in the budget that the President submits to the Congress.” The E.O. also establishes an Equitable Data Working Group whose mission is to gather data to measure and advance equity. Noting that “[m]any Federal datasets are not disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables,” the E.O. directs this Group to provide recommendations to remedy this data collection deficiency throughout the federal agencies. Thus, employers may see new and more detailed data collection requirements in the near future.

For now, though, federal contractors can put Executive Order 13950, and all the uncertainty that came with it, in the rearview mirror.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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