On December 22, 2020, the US District Court for the Northern District of California issued a nationwide preliminary injunction prohibiting the federal government from enforcing portions of Executive Order 13950 (EO 13950), “Combating Race and Sex Stereotyping.” We previously summarized this Executive Order, 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,” in an earlier article.
Specifically, the federal court’s injunction applies to Sections 4 and 5 of the EO:
- Section 4 requires government contractors to agree not to “use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”
- Section 5 requires federal agency heads to “review their respective grant programs and identify 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 disfavored “divisive concepts.”
The federal district court found that these restrictions violate the Free Speech Clause of the First Amendment because the EO “impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The court also ruled that parts of the EO violate the Due Process Clause of the Fifth Amendment because the restrictions are so vague that it is impossible to determine what conduct is prohibited.
The court concluded that a nationwide preliminary injunction was necessary to ensure that those challenging the ban would receive “complete and meaningful relief.”
In response to the injunction, the Office of Federal Contract Compliance Programs (OFCCP) issued a Notice Regarding Executive Order 13950, which suspended enforcement and collection of information under EO 13950. The OFCCP indicated that it will cease using the hotline and investigating allegations of noncompliance, refrain from posting any additional Requests for Information, and suspend enforcement of the provisions required by Section 4(a) of EO 13950. For any complaints already received, the OFCCP noted that it will hold them in abeyance, will not engage in any further investigation, and will notify all complainants to the extent possible.
For now, federal contractors and grantees are not subject to the restrictions on employee training imposed by EO 13950. The preliminary injunction may be rescinded as the case progresses, however, EO 13950 appears to be a prime candidate for revocation by the Biden administration, which would effectively resolve the outstanding lawsuits challenging its legality.
Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard, LLP. Stephanie can be reached at [email protected]. Stephanie thanks Aleksey House, our law clerk from George Washington University Law School, for her assistance on this article.