President Donald Trump recently issued an unprecedented “Executive Order (EO) on Combating Race and Sex Stereotyping” aimed at the federal workforce and federal contractors.
The order purports “to combat offensive and anti-American race and sex stereotyping and scapegoating” through a variety of measures, including significantly limiting the diversity training federal contractors may offer, requiring notification of applicable unions of their commitments under the EO and posting related notices in the workplace, and adding provisions to address the prohibited “race and sex stereotyping” in their subcontracts and purchase orders.
EO’s Stated Purpose
President Trump’s EO says “many people are pushing a different vision” of the country that’s “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.”
The order says certain workplace diversity training “perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint” and that “[r]esearch also suggests that blame-focused diversity training reinforces biases and decreases opportunities for minorities.”
As a result, the EO states, “It shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”
Order’s Requirements
Federal government contracts entered into on or after November 21, 2020, must include certain provisions, which are mandatory during the performance of the agreement. Although the EO was effective immediately, the restrictions on training may not apply until a federal contractor or subcontractor enters into a new or amended contract. Here are the restrictions:
Training restrictions. Contractors must 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.” The prohibited training is described as including the following concepts:
- 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; 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.
Impact on CBAs. When employees are subject to collective bargaining agreements (CBAs), contractors must send notice to each applicable labor union or worker representative advising them of the contractors’ commitments under the EO and posting copies of the notice in the workplace.
Subcontractor coverage. Contractors must include the training requirements and restrictions in “every subcontract or purchase order” (unless otherwise exempted) so that the provisions will be binding on each subcontractor or vendor. And contractors must take “such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance.”
Enforcement and Penalties
In the event a contractor doesn’t comply with the requirements, Trump’s EO warns its federal contracts may be canceled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further government contracts and otherwise sanctioned. The order also calls for the creation of a hotline to report contractors suspected of violating the rules. The Office of Federal Contract Compliance Programs (OFCCP) is charged with investigating the complaints.
The OFCCP is also charged with drafting a request for information whereby contractors will be required to submit information about their training, workshops, or similar programs. In response to the request, contractors will be required to submit “copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.”
Notably, the EO also requires all federal agency heads to begin reviewing their respective grant programs immediately and identify any for which the agency may, as a condition of receiving such a grant, require the recipient to certify it won’t use federal funds to promote the concepts listed above.
Any organization in the process of applying for federal grants will likely be required to make the certification. On November 21, the heads of each agency must submit a report to the Office of Management and Budget (OMB) director listing all grant programs identified under the order.
In addition, the EO instructs the attorney general to evaluate to what extent private employer workplace training that teaches what the order defines as “divisive concepts” could give rise to liability for a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.
Stay Tuned
Once implemented, the EO will severely restrict federal contractors’ flexibility and discretion in providing diversity and inclusion, sexual harassment, and other equal opportunity trainings. Conversely, the trainings are required by many other federal and state laws—posing a significant conflict for contractors.
The controversial order will likely be challenged on both procedural and constitutional grounds. Affected employers should watch closely for further developments.
Kristin Jones Pierre is an attorney with Faegre Drinker Biddle & Reath LLP. You can reach her at kristin.pierre@faegredrinker.com.