Trade and Professional Group Opposition to Executive Order 13950 Mounts

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Arent Fox

Trade and professional organizations continue to take issue with Executive Order 13950, Executive Order on Combating Race and Stereotyping.
 

We’ve reported about Executive Order 13950, entitled Executive Order on Combating Race and Sex Stereotyping, and the several professional and trade associations that have opposed it. Since then, additional professional and trade groups have taken issue with the Order.

The US Chamber of Commerce, the world’s largest business organization, is most prominent among them.

In an October 15th letter to President Trump, the Chamber admonishes that the Order “will create confusion and uncertainty, lead to non-meritorious investigations, and hinder the ability of employers to implement critical programs to promote diversity and combat discrimination in the workplace.”

Confusion and uncertainty, because the Order’s description of the training that it prohibits “leaves considerable ambiguity as to what content would not be permitted in diversity and inclusiveness (D&I) training.” Further, says the Chamber, “there is a great deal of subjectivity around how certain content would be perceived by different individuals. For example, the definition of “divisive concepts” creates many gray areas and will likely result in multiple different interpretations. ”

That confusion and uncertainty, the Chamber warns, could spawn unmeritorious claims that will turn on the decision maker's subjective outlook.

Under the E.O., OFCCP has established a hotline to receive complaints from employees who believe they have been subjected to proscribed training. Employers are concerned that this will invite non-meritorious complaints from employees who may be disgruntled about a range of different matters. Also, because of the ambiguity and subjective nature of the key terms that define what training materials are not allowed, whether the training material in question is compliant could very well depend on the outlook of the person filing the complaint. In addition, training sessions often involve discussions between participants. Things heard in these discussions could easily form the basis of a complaint even though they are not part of the official course materials. Even if a company is ultimately found to be in compliance, it will still have to undergo OFCCP’s investigative process, which represents a not insignificant burden.

That’s not all. According to the Chamber, the Order also is problematic because it doesn't address the extent to which it applies to a contractor’s overseas operations.

The E.O. is silent with respect to how multi-national companies that are federal contractors should proceed regarding training for their employees outside the US. The content of the D&I training for those employees is likely to reflect the local country’s attitudes towards diversity and inclusiveness, and may not align with the E.O.’s restrictions on divisive concepts. Must these contractors ensure their D&I training in other countries follows the E.O.?

Plus, the Chamber objects to the Administration’s attempt to use the federal procurement and contracting process to address issues inapposite to goods or services that the government is purchasing.

Such an approach effectively creates two sets of rules, one for those companies that do business with the government and another for those that do not. Those same concerns apply equally today. Federal contractors should be left to manage their workforces and workplaces with a minimum amount of interference so long as they are compliant with the law.

The Chamber concludes by urging the Administration to withdraw the Order and collaborate with the Chamber “on an approach that addresses any concerns that have been raised while continuing to promote efforts to create inclusive workplaces.”

The Chamber is not alone in opposing the Order. Several other professional and trade groups also have raised objections. Among them:

A Coalition of 11 Mostly High Technology Trade Organizations

The Executive Order:

  • would “undo progress made toward promoting racial equity and ensuring American businesses can attract the diverse talent they need to remain best-in-class”;
  • “raises significant First Amendment concerns and hobbles longstanding private sector efforts to promote diversity and inclusion”; and
  • “has created confusion among the government contractor community” and “sets a dangerous precedent by instituting sweeping federal contracting changes without a clear path forward for multi-agency review and public comment during the rulemaking process.”

More Here

The American Alliance of Museums

AAM sees this EO as an affront to our core values, a rejection and denial of our country’s history, and an unacceptable step backward for racial equity. The EO flies in the face of decades of research and scholarship on racism in the United States and will foster discord and distrust; deny the lived experiences of Black, Native, and other people of color; and interfere with basic First Amendment rights. As one of the most trustworthy sources of information to the public, museums are committed to presenting diverse and inclusive stories of the past from multiple perspectives, in all their complexity. To do this effectively, free expression and diversity and inclusion education is necessary for museum professionals and vital to the future viability, relevance, and sustainability of the museum field. This EO creates fear and uncertainty in institutions at a time when leaders are in financial distress and cannot afford to pause on equity training or risk losing much needed federal funding.

More Here

The American Hospital Association, American Medical Association, and American Nurses Association

On the front lines of health care every day, our members strive to provide the highest quality care to all patients and improve the overall health of the communities we serve. We embrace diversity, inclusion and equity in our workplaces and believe that these values make our organizations stronger and better equipped to provide optimal, culturally sensitive care to every patient. We recognize that myriad factors influence patients’ health status and health outcomes, including the social determinants of health, implicit bias, and historical systems that have led to unequal access to care. To further the goal of health equity, we must fully understand and address these factors.

We are, therefore, dismayed by EO 13950, which would stifle attempts at open, honest discussion of these issues in the public and private sectors. Prohibiting federal agencies from conducting and funding trainings that promote racial reconciliation is counterproductive to addressing racism.

More Here

The American Council on Education and More Than 50 Higher Education Associations

Executive Oder 13950:

  • is “creating a chilling effect on the good faith and lawful efforts of campus officials to build and sustain non-discriminatory and non-hostile workplaces and learning communities.”
  • requires “an unprecedented expansive review of internal training materials at both public and private entities” and constitutes a “sweeping and intrusive” mandate that should, at minimum, “be subject to a regulatory process under the Administrative Procedure Act, which would allow affected organizations to ask questions, seek clarifications, and recommend changes before the new requirements take effect”;
  • undermines the administration’s broad anti-regulatory agenda, “by requiring colleges and universities with government contracts and grants to send the government any and all documents related to training programs so that they can be scoured for forbidden “divisive concepts”; and
  • appears to conflict directly with the March 21, 2019 Executive Order on “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities,” which “encourage[s] institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.

More Here

The Association of University Presses

As a global community of scholarly publishers dedicated to the advancement of knowledge, the Association of University Presses . . . is appalled by the Executive Order on Combatting Race and Sex Stereotyping, issued by the US President on September 22.

By labeling difficult conversations about race and privilege as “stereotyping,” accusing citizens of advancing “pernicious and false beliefs” in areas of legitimate historical interpretation, and attempting to ban members of the federal workforce, uniformed services, and government contractors—as well as recipients of Federal grants—from conducting anti-racist training, this order has the potential to set chilling and frankly un-American precedents. If fully implemented, it not only could slow the arduous, but vital, progress towards equity, justice, and inclusion in this country’s workplaces and public spaces, but also could hamper the essential exercise of intellectual freedom, through which new fields of inquiry, such as critical race studies, are articulated and make valuable contributions to the breadth of human knowledge.

More Here

The HR Policy Association

HR Policy Association opposes the Executive Order on Combating Race and Sex Stereotyping because it creates unnecessary confusion regarding permissible versus impermissible diversity and inclusion programs. Correspondingly, it will limit the ability of companies to provide training they believe is effective in preventing systemic and organizational bias based on race, ethnicity, gender or any other factor, addressing it if it exists, and providing actual equal opportunity to all employees and applicants.

More Here

*This list is not exhaustive.

Despite the considerable opposition that it has garnered, no trade groups, professional organizations or others appear to have challenged the Order in Court. We suspect that prospective challengers are biding their time until the November 3rd presidential election, the results of which may render the Order moot.

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