Presidential Executive Order on Combating Race and Sex Stereotyping

On September 22, President Trump signed controversial Executive Order 13950 on Combating Race and Sex Stereotyping.  The Order seeks to limit certain elements of the so-called “divisive” diversity and EEO training that federal contractors and certain federal grant recipients provide to their employees.  The Order applies to most government contracts, and is punishable by cancellation or debarment from federal contracts.

The Order includes a new contractual provision that must be included in covered contracts entered after November 21, 2020.  This provision flows down to subcontractors and requires contractors and subcontractors to prohibit any workplace training that “inculcates in its employees” any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that:

• 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.

The contract clause also requires contractors and subcontractors to post a notice (to be published by OFCCP) regarding a covered contractor’s commitments under the Order.

OFCCP has established a hotline for employees to report complaints about contractors using training practices prohibited by the Order.  On October 7, 2020, OFCCP published FAQ’s addressing the Order.  The FAQ’s confirm reported statements by OFCCP Director Craig Leen regarding the Order, including the fact that the Order does not outright prohibit unconscious bias training.

OFCCP must publish on or before October 22, 2020, a request for information from federal prime and subcontractors as well as their employees regarding training, workshops, or similar programming provided to employees.  It is unclear what the OFCCP will do once it has gathered this information.

The Order also requires all heads of federal agencies to review their grant programs. The agencies are to identify any programs where, as a condition of receiving grant money, the recipient can be required to certify that it will not use federal funds to “promote the concepts” identified above.

Contractors that violate the Order can face stiff consequences, including termination, suspension, or debarment from federal contracting.

Legal challenges to the Order seem likely.  The upcoming presidential election could also determine the fate of the Order.  If President Trump is re-elected, the administration can be expected to move forward with implementation of the Order and fight legal challenges.  If former Vice President Joe Biden is elected, the Order will likely be rescinded.

We’ll keep you updated with further developments.