Readers will remember that in a recent, previous comment we addressed the Executive Order issued by President Trump related to federal contractor diversity training. Shortly after that Order was issued to ban certain controversial and invidious topics from being part of these trainings, a federal judge in the Northern District of California issued a nationwide preliminary injunction to stop enforcement by the government of the presidential executive order that had been issued (“Initial Executive Order”). In the time since the court issued its ruling, President Biden, upon taking office, issued a new Executive Order overturning the Initial Executive Order, and further set out requirements for federal contractors in relation to the Initial Executive Order.
Initial Executive Order
In September 2020, President Trump issued an executive order which, among other things, prohibited contractors from using any workplace training that encourages “any form of race or sex stereotyping or race and sex scapegoating” in its employees. The general topics prohibited by the executive order included alleged theories such as systemic racism and unconscious bias, and other topics deemed “anti-American.”
Contractors found to be in violation of the Initial Executive Order were subject to being terminated, suspended, or declared ineligible for additional government contracts. Therefore, a substantial number of contractors erred on the side of caution and postponed or canceled their training and other diversity initiatives.
Injunction of the Initial Executive Order
The Initial Executive Order was met with immediate legal challenges and, on December 22, 2020, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction temporarily banning the enforcement of the provisions relating to training. The Court’s ruling granted preliminary approval of an injunction that blocked key portions of the executive order. The court found that the restrictions imposed in the Initial Executive Order, in conjunction with the vagueness of the restrictions, had chilled the exercise of the free speech rights of the plaintiffs who had brought the lawsuit. The judge also concluded that a nationwide preliminary injunction was necessary to ensure that those challenging the ban would receive “complete and meaningful relief.” The ruling, however, was temporary in nature and further litigation would be required to determine if the ban should be permanently applied or if it should be resurrected in some form.
Revocation of the Initial Executive Order
Upon taking office on January 20, 2021, President Biden overturned the Initial Executive Order in its entirety by issuing an “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (“Executive Order”). President Biden’s Executive Order now revokes the entirety of the Initial Executive Order and further requires the heads of agencies to “review and identify proposed and existing agency actions related to or arising from [the Initial Executive Order].” Importantly, within 60 days of President Biden’s Executive Order, the head of each agency must consider “suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants pursuant to [the Initial Executive Order], as appropriate and consistent with applicable law.”
Section 7 of President Biden’s Executive Order also notes that “[g]overnment contracting and procurement opportunities should be available on an equal basis to all eligible providers of goods and services” and requires the head of each agency to produce a plan for addressing “any barriers to full and equal participation” regarding programs, agency procurement and contracting opportunities that are identified.
Takeaway
Given that President Biden has rescinded the Initial Executive Order issued by President Trump, employers who are federal contractors no longer have to abide by the Initial Executive Order. While this is one less executive order that federal contractor employers must comply with, this probably will not last long. Given the change in the presidential administration, employers who are federal contractors as well as employers generally should be on the outlook for incoming executive actions that may impose additional requirements and potential burdens unseen during the Trump Administration. Additional presidential executive orders and expected legislative changes are anticipated now that the Democrats control the Congress and the White House. Employers must stay aware of these upcoming changes and be prepared to comply as required.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.