On Sept. 22, 2020, President Trump issued Executive Order 13950, “Combating Race and Sex Stereotyping” (“Order”). The Order applies to federal agencies, federal contractors, and federal grant recipients. The Order seeks to “foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics” and eliminate “un-American” and “divisive concepts” from Diversity and Inclusion trainings. The Order, which took effect upon issuance, creates new requirements for federal contracts executed on or after November 21, 2020.
Purpose of the Order
The purpose of the Order is to prohibit federal agencies, federal contractors, and federal grant recipients from providing workplace training to their employees that instills any form of blame-focused training such as race or sex scapegoating or stereotyping. According to the Order, blame-focused training only serves to “reinforce biases and decrease[] opportunities for minorities.” The Order’s stated goal is to end the perpetuation of “racial stereotypes and division” in the workplace.
Key Definitions in the Order
Race or sex stereotyping is defined as “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.”
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.”
The Order also identifies the following nine prohibited training concepts that are derived from race or sex stereotyping and scapegoating:
One race or sex is inherently superior to another race or sex;
The United States is fundamentally racist or sexist;
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;
Member 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 race or sex; and
Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
Federal Contractor Requirements Under the Order
Under the Order, all new contracts entered into with the federal government on or after November 21, 2020, must include specific language detailed in the Order. For example, federal contractors and subcontractors must include in their contracts the federal government language stating that they will not use “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”
Additionally, the Order requires that federal contractors and subcontractors post a notice (to be provided by contracting agencies), for all employees and applicants to see, regarding the contractor’s commitments under the Order. If the federal contractor (or subcontractor) has a collective bargaining agreement with a labor union, this notice must be provided to the union. Federal contractors and subcontractors should be on the lookout for the release of the notice suggested by the federal government.
Additional Information on the Order
On October 7, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) published its first guidance on the Order in the form of nine frequently asked questions and answers (“FAQs”). One key FAQ relates to whether unconscious bias or implicit bias training is still acceptable under the Order. The FAQ asks, “Does Executive Order 13950 prohibit unconscious bias or implicit bias training?” The FAQ states, “Unconscious or implicit bias training is prohibited to the extent 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.” The FAQ goes on to state that unconscious or implicit bias training is not prohibited under the Order if it is designed to inform workers, or foster discussion, about preconceptions, opinions, or stereotypes that people¾regardless of their race or sex¾may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive. This clarifying language appears to indicate that unconscious bias or implicit bias training may still be acceptable under the Order as long as it otherwise complies with the contours of the Order.
On October 21, 2020, the OFCCP issued a request for information (“RFI”) that contains additional details and guidance “regarding the training, workshops, or similar programming provided to employees.” The OFCCP RFI requests that subject employers provide copies of any training, workshop, or similar programming materials having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities. The OFCCP also indicated in a stakeholder call on October 21, 2020 that it will provide feedback to federal contractors on the compliance of the materials with the Order and will not seek an enforcement action in such instances. However, the OFCCP made clear that should a federal contractor not heed their direction, in the event of a random audit, enforcement will be sought for the continuing noncompliance.
Takeaway
This Order instructs employers on how they should conduct workplace training programs with regard to the topics addressed. Federal contractors and subcontractors should begin careful review of workplace training programs and materials for content that could violate the Order and revise or remove as appropriate any of the divisive concepts that the Order aims to prevent from entering the workplace. It is important to note that the provisions of the Order required to be present in contracts with the federal government begins November 21, 2020. Also, if there is a change in the White House and Administration further developments in regard to this Order may occur. Federal contractors and subcontractors should consider consulting with experienced legal counsel regarding the implications of the Order, including future contracts and best practices for employee training.
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.