October 16, 2020

President Trump Issues Executive Order 13950 To Combat Race And Sex Stereotyping/Scapegoating, And Imposes New Requirements On Government Contractors

On September 22, 2020, President Trump issued Executive Order 13950, “on Combating Race and Sex Stereotyping,” prohibiting the federal government, companies with federal contracts, and recipients of federal grants from promoting “race or sex stereotyping or scapegoating” by, among other things, conducting training that includes the following “divisive concepts”:

  1. One race or sex is inherently superior to another race or sex;
  2. An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  3. An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  4. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  5. An individual’s moral character is necessarily determined by his or her race or sex;
  6. 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;
  7. Any individual should feel discomfort guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  8. Meritocracy or traits such as hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
The prohibition against using workplace training that includes any of these “divisive concepts” will be included in federal contracts entered on or after November 21, 2020. However, the Office of Federal Contract Compliance Programs (OFCCP) has already established a hotline to investigate complaints that a federal contractor is utilizing a training program that violates the order, and on October 7 issued FAQ stating that the OFCCP may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246, which requires contractors and subcontractors to treat employees without regard to their race or sex, among other protected bases, and requires contractors to take affirmative action to ensure such discrimination does not occur. 
The executive order also “instructs the Attorney General to assess the extent to which private employer workplace training that promulgates any of the ‘divisive concepts’ described in the order could give rise to a hostile work environment claim and potential liability under Title VII.” Executive Order 13950 also instructs the OFCCP to publish in the Federal Register a request for information seeking information from federal contractors and subcontractors regarding any diversity and inclusion training, including copies of such training, and requires distribution to any union representing employees of a notice regarding the contractor’s commitments under the order, and posting of such notice. Sanctions for noncompliance include suspension or termination of a federal contract and debarment of the contractor or subcontractor from holding future contracts.
Shortly after the order was issued, the Director of the Office of Management and Budget (OMB) paused all diversity and inclusion training for employees across agencies in the Executive Branch while it conducts a mandatory review of all such training materials. The OMB Director later issued a memorandum encouraging the review of training materials for terms including, but not limited to: “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.” The OMB Director noted that these terms may help to identify the type of training prohibited by the order. The OFCCP has not issued this direction at this point, and the OMB’s memorandum is directed only to executive agencies.
Executive Order 13950 includes some limits on interpretations of its scope. It states that it does not prevent contractors from “promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of” the executive order. It also does not prohibit discussing the “divisive concepts” if doing so is part of a “larger course of academic instruction” and the “divisive concepts” are discussed “in an objective manner and without endorsement.”
The order comes in the wake of a pledge by many companies to implement anti-racism training as a result of events such as the killing of George Floyd by Minneapolis police. On October 2, the Director of the OFCCP explained that unconscious bias training is “perfectly fine” as long as it “teaches that everyone, based on the human condition, has unconscious biases,” and does not specifically call out a particular race or sex as being inherently biased. 
Legal challenges to the order are expected. Because the order applies specifically to training and not to other employer diversity and inclusion policies, it may conflict with other federal and state requirements to provide race and sex bias training. It could also violate the First Amendment’s freedom of speech guarantee by coercing or restricting private or corporate speech. 
For questions on the executive order, please contact an attorney in Goodwin’s Employment practice