While the precise parameters of the types of training prohibited by the EO are not clear, contractors should review their diversity and anti-training initiatives in light of these new requirements. If implemented, the EO requirements will be included in federal prime contracts entered on or after November 21, 2020, and will require prime contractors to flow the requirements down their subcontractors and vendors.
The EO applies to all government contracts, except for contractors qualifying for certain limited exemptions under Section 204 of Executive Order 11246, which are the same exemptions that apply to federal contractors’ Equal Employment Opportunity requirements. There are no limits in the EO for commercial or commercial-off-the-shelf item contracts. The EO also appears to apply to trainings for all employees of covered contractors, regardless of whether those employees support a federal contract.
The EO includes a new contractual provision that must be included in covered contracts entered after November 21, 2020. The provision requires contractors to prohibit “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that:
- 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.”
The EO defines “race or sex stereotyping” broadly to mean “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his race or sex.” The term “race or sex scapegoating” is defined in the EO as “assigning fault, blame, or bias to race or sex, or to members of a race or sex because of their race or sex.”
Contractors will also be required to send each labor union or representative of its employees a notice, provided by the applicable agency’s contracting officer, advising the labor union or representative of the contractor’s obligations under the EO. Copies of those notices must be posted for employees and applicants of covered contractors. The EO also requires contractors to flow these obligations down to their covered subcontractors and vendors, unless they are exempted under the rules, regulations, or orders of the Secretary of Labor.
Enforcement and Remedies
OFCCP will play a significant role in enforcing the EO requirements on federal contractors. OFCCP is required by the EO to establish a hotline to investigate complaints about contractors using training practices prohibited by the EO. It also requires OFCCP to publish on or before October 22, 2020, a request for information from federal prime and subcontractors as well as their employees regarding training, workshops, or similar programming provided to employees.
The U.S. Attorney General is also tasked with determining if training banned by the EO may contribute to a hostile work environment and give rise to claims under Title VII of the Civil Rights Act. The EO instructs the U.S. Attorney General and EEOC to issue guidance, if appropriate, to assist employers “in better promoting diversity and inclusive workplaces consistent with Title VII.”
Contractors that violate the EO can face harsh consequences, including termination, suspension, or debarment from federal contracting.
By its own terms, the EO is effective immediately, but the requirements applicable to federal contractors will only be included in contracts awarded after November 21, 2020. The EO does not specifically require that regulations be issued to implement the EO.
While the EO states it does not prevent contractors “from promoting racial, cultural, or ethnic diversity or inclusiveness,” contractors should review their diversity and ant-bias training programs for areas that could be considered “divisive concepts” under the EO. Many contractors use some form of unconscious bias training in their programs and have recently increased their diversity and anti-bias training efforts in wake of the racial and social justice issues over the last several months. While the precise bounds of the EO training requirements, especially in relation to existing federal and state EEO training requirements, are not clear, it is very possible contractor diversity and anti-bias trainings stray into areas that could be characterized as suggesting an individual is unconsciously racist or sexist or making an employee feel discomfort or guilt by association on account of his or her race or gender.
Given the politicized posture of the EO, contractors may face investigations of their diversity and anti-bias training as some employees may be more inclined to lodge complaints with the OFCCP, even if the contractor’s training complies with the EO. While OFCCP will be required to enforce the EO, bureaucratic inertia may slow some enforcement efforts, as OFCCP staff generally favor promoting diversity and anti-bias training, not curtailing them.
The EO will almost certainly be challenged by various political or interest groups on statutory and constitutional grounds. Whether those challenges will be successful remains to be seen. Regardless, the upcoming election could determine the fate of the EO. If Trump is reelected, the Trump administration will push forward with implementation of the EO and fight any legal challenges. If former Vice President Joe Biden is elected, however, the EO will likely be rescinded at some point, even if implemented briefly by a lame duck Trump administration.