New Executive Order Prohibits Training that "Promotes Race or Sex Stereotyping"

Miles & Stockbridge P.C.

In the wake of the killing of George Floyd and other African Americans by police officers, many government contractors have undertaken social justice initiatives and increased training around unconscious or implicit bias. On September 22, 2010 President Trump signed an Executive Order "Combating Race and Sex Stereotyping" extending his ban on governmental agencies providing training that they believe is "divisive" and "promotes sexual and racial stereotyping" to Federal contractors, recipients of Federal grants and the military. The Executive Order also requires posting notice of the Executive Order, inclusion of the training prohibition in Federal subcontracts and providing copies of any diversity training to the OFCCP upon request. Noncompliance with the Executive Order is subject to contract cancellation. It is likely that the constitutionality of this Executive Order will be challenged in the courts.

The pertinent provisions of the Executive Order relating to Federal contractors are as follows:

1) Contractors are prohibited from using any workplace training that "inculcates in its employees any form of race or sex stereotyping .. or "scapegoating" (defined as assigning fault or bias to a race or sex because of an individual's race or sex and any claim that, consciously or unconsciously, and by virtue of race or sex, members of any race are inherently racist or inherently sexist.) The Executive Order explains that the following concepts are banned from inclusion in training:

  • one race or sex is inherently superior to another race or sex;
  • by virtue of race or sex, a person is inherently racist, sexist, or bears responsibility for actions committed in the past by other members of the same race or sex;
  • any individual should feel guilt on account of his/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.

2) Contractors are required to send to each labor union or representative of workers with which it has a collective bargaining agreement a notice advising them of the contractor’s commitments under the Executive Order and post copies of the notice in conspicuous places available to employees and applicants for employment; and

3) Contractors are required to include specific provisions of the Executive Order in every subcontract or purchase order unless exempted, so that such provisions will be binding upon each subcontractor or vendor.

In the event of a contractor’s noncompliance with the Executive Order in addition to other sanctions that may be imposed under Executive Order 11246 a Federal contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts

Within 30 days of the date of the Executive Order, the Director of Office of Federal Contract Compliance Programs (OFCCP) is required to publish in the Federal Register a request for information seeking information from Federal contractors/subcontractors and employees of Federal contractors/subcontractors regarding the training provided to employees, requesting copies of any training having to do with diversity and inclusion.

The Executive Order is effective immediately except that the requirements of section 4 (relating to inclusion of certain provisions in subcontract) apply to contracts entered into 60 days after the date of the Order.

While the Executive Order does not prevent contractors from promoting social justice or diversity or from providing related training, any such training should be closely screened to ensure it does not run afoul of the Executive Order.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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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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