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Executive Order Prohibiting Divisive Workplace Training

by | Oct 19, 2020 | Government Contracts

Executive Order Prohibiting Divisive Workplace Training by Aleksey House (Law Clerk)

On September 22, 2020, President Trump issued Executive Order (EO) 13950, “Combating Race and Sex Stereotyping,” which bans federal contractors from providing training that “inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” Shortly thereafter, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) released guidance further addressing the EO and implications for federal contractors.

The EO and OFCCP guidance define “race or sex stereotyping” and “race or sex scapegoating” broadly and provide the following list of “divisive 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; 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.

Notably, the guidance clarifies that the EO does not instruct contractors to cease providing diversity, inclusion, and anti-discrimination training­. Rather, OFCCP states in its guidance that training is not prohibited if it is “designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.” However, OFCCP stated that training will violate the Executive Order if it “teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.” Additionally, OFCCP notes that the inclusion of race or sex stereotyping or scapegoating in a training program may also violate the obligations of EO 11246, “Equal Employment Opportunity.”

Although the EO stated that it applied only to contracts entered into 60 days after the EO’s issuance (i.e., November 21, 2020), OFCCP announced that it will immediately investigate complaints of sex and race stereotyping received under the existing authority of EO 11246. This suggests that contractors’ diversity and inclusion training programs could be investigated even if the requirements of the EO have not yet been incorporated into their contracts. The guidance further announced that OFCCP has already set up the reporting hotline permitting individuals or groups, including “third parties,” to submit complaints for violations of the order. Possible consequences for violations of the EO include not only contract termination or suspension but also debarment and potentially claims of hostile work environments.

Finally, OFFCP is currently drafting the Request for Information (RFI) to meet the October 22, 2020 deadline set by the EO. The RFI will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of EO 11246 or EO 13950.

To summarize, the EO imposes the following requirements on federal contractors:

  • Prohibits contractors from conducting workplace training which “inculcates in its employees” any of the aforementioned “divisive concepts.”
  • Contractors must send a notice, which the Contracting Officer will provide, to each labor union or workers’ representative with which the contractor has a collective bargaining agreement to notify them of the contractor’s requirements under the EO.
  • Contractors must post notice of the EO’s requirements in “conspicuous places available to employees.”
  • Contractors must flow down the EO’s required clauses in their subcontracts and purchase orders.

Regardless of the effective date of the EO, contractors should begin reviewing their diversity and inclusion training now to determine if it conflicts with the EO with the OFCCP’s supplemented guidance. We will continue to monitor any proposed changes and provide further guidance as the situation evolves. If you have any questions regarding this Executive Order, please reach out to our Government Contracts team.

Aleksey House, is a law student at George Washington University Law School and law clerk at Berenzweig Leonard.

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