On September 22, 2020, President Trump issued an unprecedented “Executive Order on Combating Race and Sex Stereotyping” (Order) directed to the federal workforce and federal contractors. The Order purports “to combat offensive and anti-American race and sex stereotyping and scapegoating” through a variety of measures, including significantly limiting the diversity trainings federal contractors may offer, requiring notification of applicable unions of their commitments under the Order and posting related notices in the workplace, and adding provisions to address the prohibited “race and sex stereotyping” in their subcontracts and purchase orders.
The Executive Order’s Stated Purpose
The Order states that “many people are pushing a different vision of America” that is “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.” The Order states that certain workplace diversity training “perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint” and that “[r]esearch also suggests that blame-focused diversity training reinforces biases and decreases opportunities for minorities.”
As a result, the Order states: “It shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”
Federal government contracts entered into on or after November 21, 2020, must include certain provisions, which are mandatory during the performance of the contract. Although the Order is effective immediately, these restrictions on training may not apply until a federal contractor or subcontractor enters into a new or amended contract. The restrictions are as follows:
- Contractors must 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.” Such prohibited training is described as training which includes the following concepts:
- 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
- Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race
- Where employees are subject to collective bargaining agreements, contractors must send notice to each applicable labor union or representative of workers advising of the contractors’ commitments under the Order and posting copies of the notice in the workplace.
- Contractors must include the training requirements and restrictions in “every subcontract or purchase order” (unless otherwise exempted) so that such provisions will be binding upon each subcontractor or vendor. And contractors must take “such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance.”
In the event of a contractor’s noncompliance with these requirements, the Order warns that its federal contracts may be canceled, terminated or suspended in whole or in part, and such contractor may be declared ineligible for further government contracts and otherwise sanctioned. The Order also institutes the creation of a hotline to report contractors suspected of violating the Order’s requirements. The Office of Federal Contract Compliance Programs (OFCCP) is charged with investigating these complaints. The OFCCP is also charged with drafting a request for information whereby contractors will be required to submit information regarding their training, workshops or similar programs. In response to the request, contractors will be required to submit “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.”
Notably, the Order also requires the heads of all federal agencies to immediately begin reviewing their respective grant programs and to identify those programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use federal funds to promote the concepts listed above. Any organization in the process of applying for federal grants will likely be required to make this certification. On November 21, 2020, the heads of each federal agency must each submit a report to the director of the Office of Management and Budget (OMB) listing all grant programs identified under the Order.
An additional, significant provision of the Order is an instruction to the attorney general to evaluate to what extent private employer workplace training that teaches what the Order defines as “divisive concepts” could give rise to liability for a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.
Implications of the Order
Once implemented, the Order will severely restrict federal contractors’ flexibility and discretion in providing diversity and inclusion, sexual harassment, and other equal opportunity trainings. Conversely, these trainings are required by many other federal and state laws – posing a significant a conflict for contractors.
This controversial Order will likely be challenged on both procedural and constitutional grounds. Affected employers should watch closely for further developments.