Several civil rights groups have sued the Trump administration to block a recent Executive Order (EO) prohibiting federal contractors and others from covering certain so-called “race and sex stereotyping” topics during diversity, equity, and inclusion (DEI) training.
How We Got Here
Earlier this fall, on September 22, President Donald Trump issued the controversial EO 13950 in a purported effort “to combat offensive and anti-American race and sex stereotyping and scapegoating.” The order sweepingly bars federal contractors from incorporating such views into their DEI workplace trainings.
In quick succession, the Office of Federal Contract Compliance Programs (OFCCP) readied for enforcement by launching a complaint hotline, issuing nine frequently asked questions, and publishing a request for information (RFI) in the Federal Register seeking documents and information to support the order. The directive has had an immediate disruptive impact on federal contractors as many have postponed or canceled training and other diversity initiatives while struggling to interpret the order.
On October 15, the U.S. Chamber of Commerce and a group of more than 150 business organizations took a rare step in sending a letter opposing EO 13950 to the president and asking for it to be withdrawn. The letter contended the order, which specifically threatens companies with suspension and debarment in addition to other enforcement action, will cause confusion and uncertainty for federal contractors, lead to “nonmeritorious” investigations, and hinder the employers’ ability to promote diversity and combat discrimination.
On October 29, NAACP attorneys filed the first lawsuit challenging the order—a class action against President Trump, the U.S. Department of Labor (DOL), and Labor Secretary Eugene Scalia on behalf of the National Urban League, the National Fair Housing Alliance, and all others similarly situated. The complaint says EO 13950 “is an extraordinary and unprecedented act by the Trump Administration to undermine efforts to foster diversity and inclusion in the workplace.”
The lawsuit challenges President Trump’s order on constitutional grounds and seeks (1) a declaration that it’s unlawful and invalid and (2) a permanent injunction prohibiting the administration from implementing or enforcing it. The suit asserts the following claims:
First Amendment. The complaint alleges the president issued the order “to silence viewpoints disliked by his Administration,” including discussions acknowledging “the existence of white privilege, implicit bias, systemic racism, structural inequalities, or intersectional experiences of discrimination.” In addition, the order violates the First Amendment by censoring and chilling free speech.
According to the complaint, the EO “bans discussions of inequality grounded in the context of our Nation’s history and the lived experiences of those who have been most marginalized and discriminated against.” The litigants also take issue with the fact that federal contractors and grant recipients are banned from engaging in speech and training on “widely-accepted, historically-based concepts that have been used for years in trainings and programs across the country in corporate, public sector, and educational settings.”
Fifth Amendment. The complaint alleges the EO is void for vagueness under the Fifth Amendment because it fails to provide fair notice of what conduct is prohibited, including defining subjective terms or providing any explicit, objective standards for enforcement.
It also claims a violation of the Equal Protection Clause because, among other things, “race and sex-based discrimination against individuals who are people of color, women, and/or LGBTQ [was] a substantial or motivating factor behind the issuance of EO 13950.”
The complaint asserts there’s no objective way to determine which activities are prohibited or permitted under EO 13950. While the order prohibits employers from holding “workplace training” that “inculcates” certain “divisive concepts,” the complaint points out the terms aren’t sufficiently explained or defined. It also contends the order fails to include objective standards for enforcement.
According to the complaint, there’s no way to determine whether “any particular training program that discusses race relations, implicit bias, the historical foundations and context of discrimination, and racial sensitivity” complies with or violates the EO. As a result, the order is allegedly providing the DOL with unfettered discretion in its enforcement, including ignoring well-established standards of review to support the draconian penalties.
The complaint recognizes other executive branch guidance and statements exist, such as the OFCCP’s nine frequently asked questions and the Federal Register RFI. The litigants claim, however, the additional information only reinforces “how vague the terms of EO 13950 are and how expansively they can be interpreted for purposes of enforcement.”
As the complaint notes, “many federal contractors will choose to err on the side of caution and decline to discuss any matters that even remotely bear on issues of race or sex, for fear of violating the broad prohibitions in the Order” or will “halt diversity trainings for fear of the retaliation they might face.”
The response is likely rooted in the fact that federal contractors found in violation of the order may have their contracts canceled, terminated, or suspended in whole or in part. We will continue to keep you updated on developments.
Stacie L. Linguist, Kristin Jones Pierre, and Jessica C. Abrahams are attorneys with Faegre Drinker. You can reach them at email@example.com, firstname.lastname@example.org, or email@example.com.