Federal Contractors Beware: New Executive Order Prohibits Certain Anti-Discrimination Training

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[co-author: Gaela Normille]

On September 22, 2020, President Trump signed the Executive Order on Combating Race and Sex Stereotyping (“EO”). Under the EO, executive departments and agencies, the military, federal contractors, and federal grant recipients are required to include specific provisions pertaining to workplace training in every government contract entered into after November 21, 2020. The EO, which applies to all government contracts subject to Equal Employment Opportunity requirements, jeopardizes common anti-discrimination training programs, such as implicit bias training.

Under the EO, federal contractors are prohibited from conducting any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” The EO defines “race or sex stereotyping” as character traits, values, moral and ethical codes, privileges, status, or beliefs assigned to a race or sex, or to an individual because of his or her race or sex, and the term “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.

More specifically, contractors are prohibited from discussing the following concepts in workplace training programs:

      • 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.

Similarly, the heads of all agencies are directed to review their grant programs and require that recipients certify that they will not use Federal funds to promote these concepts.

Among other requirements in the EO, contractors must also send a notice—provided by the relevant agency’s contracting officer—to each labor union or representative of its employees advising the labor union or representative of the contractor’s obligations under the EO. Copies of these notices must be posted in conspicuous places available to both employees and applicants for employment. The EO also mandates contractors to ensure subcontractors and vendors comply with the EO.

Importantly, if contractors do not comply with the EO’s requirements, the contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts. Compliance will be enforced by the Office of Federal Contract Compliance Programs (“OFCCP”), which is directed to establish a hotline to investigate complaints received about contractors using prohibited training programs.

By its terms, the EO is effective immediately, but government contracts are not required to incorporate the above provisions until November 21, 2020. In the meantime, contractors should protect themselves from the adverse consequences of noncompliance by reviewing their current diversity and anti-bias training programs. 

 

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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