Executive Order Prohibits ‘Divisive’ Workplace Diversity Training by Federal Government, Contractors, and Grantees

Morgan Lewis
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Morgan LewisPresident Donald J. Trump issued an Executive Order on September 22 prohibiting “divisive concepts” in workplace diversity training offered by the federal government, federal contractors, or federal grantees. The order lists nine concepts that it denotes as divisive and that may not be part of any training.

DIVISIVE CONCEPTS

The order notes that “training employees to create an inclusive workplace is appropriate and beneficial.” However, it requires that such trainings not inculcate in employees any form of race or sex stereotyping or scapegoating. Race or sex stereotyping means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” Race or sex scapegoating means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”

The order explains that race and sex stereotyping or scapegoating include the following concepts, none of which may be contained in a workplace training:

  1. One race or sex is inherently superior to another race or sex
  2. The United States is fundamentally racist or sexist
  3. An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously
  4. An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex
  5. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex
  6. An individual’s moral character is necessarily determined by his or her race or sex
  7. 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
  8. Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex
  9. Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

FEDERAL CONTRACTORS

Contract Requirement

For all new contracts entered into with the federal government after November 21, 2020 (60 days after the date of the order), the contract must include language stating that the contractor will 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.”

The agency contracting officer will provide the contractor with a notice of the contractor’s commitments with regard to such training. That notice must then be provided to labor unions and be posted “in conspicuous places available to employees and applicants for employment.” The contractor must also include this requirement in every subcontract and purchase order.

The order requires the Office of Federal Contract Compliance Programs (OFCCP) to establish a national hotline to field and investigate complaints that a contractor is using a training program that violates the order. Contractors that violate the order are subject to sanctions, such as cancellation, termination, or suspension of the contract, or could be declared ineligible for further federal contracts.

Information Collection Requirement

The order requires the OFCCP to publish a request for information (RFI) within 30 days of the date of the order “seeking information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees.” The order states that the RFI “should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.”

FEDERAL GRANT RECIPIENTS

Federal agency heads must review their grant programs and identify which programs should require that recipients of the grants must certify that they “will not use Federal funds to promote the concepts” that the order forbids. By November 21, 2020, agency heads must submit a report to the Director of the Office of Management and Budget listing all the grant programs they have identified.

ALL EMPLOYERS

The order calls on the US Attorney General to “continue to assess” whether workplace trainings that teach the divisive concepts listed in the order “may contribute to a hostile work environment” and thus give rise to potential liability under federal antidiscrimination law. The order also states that the Attorney General and the Equal Employment Opportunity Commission should, if appropriate, issue guidance “to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.”

TAKEAWAYS

The order sends a clear message with regard to the viewpoints that will be considered acceptable in any workplace diversity training. In particular, trainings that seek to delve into structural racism or that facilitate conversations about “white privilege” would be suspect under these requirements.

The order does not explicitly prohibit all forms of “implicit bias” training. Indeed, much of what is currently included in such trainings would presumably pass muster under this order. However, the content of the training would have to be reviewed carefully and “scrubbed” for any messages that could be viewed as inculcating any of the divisive concepts.

The order requires that the Request for Information (RFI) from federal contractors be issued 30 days from the date of the order. However, as the name suggests, an RFI is a request issued by a government agency for the public to voluntarily submit information that will assist the agency in making a determination on whether and how to proceed on an issue. OFCCP can certainly proceed expeditiously in issuing such an RFI. However, any mandatory requirement for federal contractors to submit training materials and other information would typically require compliance with the Paperwork Reduction Act of 1980 (PRA). The PRA imposes detailed procedural requirements on agencies that wish to collect information from the public, including specific time periods for two sets of public comments.

The federal contractor provisions will apply to new contracts entered into 60 days after the date of the order. If the government attempts to insert or implement this clause through an existing contract option, contractors should consult with counsel. Similarly, commercial and commercial off-the-shelf item suppliers holding federal supply contracts should consult with counsel should the government attempt to insert the clause or implement the order through a mass modification.

Given that the presidential election is only weeks away, and the order surely will face challenges in the courts, it is unclear what the enduring effects of this order will be. However, the message being sent by the executive order is clear. Federal contractors and grantees should review their current workplace diversity trainings so they are fully aware of the content of the trainings.

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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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