September.29.2020
On September 22, 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping prohibiting certain diversity-related training in the federal workforce and among government contractors. Specifically, the executive order provides that the United States will not promote “race or sex stereotyping or scapegoating” in the federal workforce or in the Uniformed Services, the government will not allow grant funds to be used for those purposes, and federal contractors cannot “inculcate such views in their employees.” While the executive order may have significant implications for contractors, the lasting impacts are currently uncertain, including in light of the upcoming election and expected legal challenges.
The executive order applies to all government contracts entered into after November 21, 2020. These federal contracts must contain provisions related to prohibited training, notice requirements, penalties for noncompliance, and the order’s effect on subcontracts and purchase orders. While the executive order is effective immediately, existing federal contracts are not subject to this executive order.
Once a federal contractor enters into a contract covered by the order, the contractor is prohibited from using any workplace trainings that encompass “race or sex stereotyping”[1] or “race or sex scapegoating”[2], which according to the order, include the following concepts:
Covered contractors must post and send a notice—to be provided by the agency contracting officer—to all labor unions or similar entities with which they have a collective bargaining agreement that advises of the contractor’s commitments under the executive order.
If a covered contractor does not comply with this executive order, the covered contract may be canceled, terminated, or suspended in whole or in part. The contractor also may be declared ineligible for further government contracts and could be sanctioned.
Covered contractors must include specific language regarding prohibited training concepts, notice requirements, and noncompliance penalties into all subcontract and purchase orders.
If a covered contractor provides a training for agency employees relating to diversity or inclusion that teaches, advocates, or promotes the “divisive concepts” described in the order, the relevant agency must evaluate whether to pursue debarment of that contractor.
The OFCCP must establish a hotline and investigate complaints that a covered contractor is utilizing prohibited training programs in violation of the contractor’s obligations.
No later than October 22, 2020, OFCCP will publish in the Federal Register a request for information directed to federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. As part of this request for information, OFCCP will seek (1) copies of any training, workshop, or similar programming having to do with diversity and inclusion and (2) information about the duration, frequency, and cost of those activities.
The Attorney General will continue to assess the extent to which workplace training that teaches the “divisive concepts” discussed in the executive order may contribute to a hostile work environment under Title VII. The Attorney General and the EEOC may issue future guidance “to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.”
Importantly, the executive order does not prevent contractors from “promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order”. Nor does the executive order prohibit discussing the “divisive concepts” listed in the order in an objective manner and without endorsement. So, for example, an implicit bias training that does not articulate the basis of the bias as one attributable to race or sex may comply with the order.
While OFCCP will ask contractors to provide information related to its diversity trainings (such as copies of diversity training materials and the total cost of its diversity training programs, among other items), the executive order does not state that contractor responses are mandatory. Assuming the request remains voluntary, contractors will need to evaluate the costs and benefits of providing information for OFCCP’s review.
As noted above, the future of the executive order appears uncertain. First, if a new administration takes over in January 2021, the order may be rescinded. Second, we anticipate legal challenges to the enforceability of the order on various grounds, including under the First Amendment, the Administrative Procedure Act, and the Paperwork Reduction Act. For example, contractors performing work for government agencies have free speech protections as if they are public employees.
Nonetheless, businesses that anticipate contracting with the federal government after November 21, 2020 should evaluate their diversity and inclusion training programs and determine whether any changes are appropriate to avoid penalties under the order. We will continue to monitor developments in this area and will report them here.
[1] “Race or sex stereotyping” is defined ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.
[2] “Race or sex scapegoating” is defined as assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.