President Donald J. Trump issued Executive Order (EO) on Combating Race and Sex Stereotyping (EO 13950) on September 22, 2020. The EO prohibits federal contractors, federal agencies and certain federal grant recipients as well as the military from using workplace training that “inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”
Key takeaways for Federal Contractors
The new EO restricts certain concepts from being included in workplace trainings by federal contractors and grant recipients, including the widely-used trainings on implicit bias. Additionally, federal contractors have new obligations, including expanded “flow downs” in their subcontracts, notifications to employees and applicants through a workplace posting and to labor unions, and expanded liability exposures through a newly created OFCCP-staffed hot line complaint system that can result in OFCCP enforcement proceedings and debarment from current and future government contracts.
The contractor obligations apply to federal contracts entered 60 days after the issuance of the new EO (November 21, 2020), but in its September 28, 2020 press release OFCCP indicated that the EO took effect immediately insofar as training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246.
What workplace training does the EO prohibit?
The EO states that workplace training is teaching “that men and members of certain races are inherently sexist and racist.” In response, federal contractors are to no longer use any workplace training that includes the following race or sex stereotyping or scapegoating “divisive 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; or,
- Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
According to the Executive Order, “race or sex stereotyping” means 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. And “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.
While prohibiting specific trainings, the EO recognizes that federal contractors should “continue to foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics.” And, the EO states that “[t]raining employees to create an inclusive workplace is appropriate and beneficial.” As a practical matter, federal contractors should continue diversity and inclusion trainings, but ensure that the trainings comply with the new restrictions.
Additionally, the EO contains provisions that could also impact workplace trainings conducted by private employers who are not federal contractors. The EO instructs the Attorney General to assess the extent to which workplace training teaching these “divisive concepts” contribute to hostile work environment and give rise to potential liability under Title VII. The EO also provides that the Attorney General and the EEOC can issue guidance “to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII” and such guidance could address the potential tensions between Title VII compliance and trainings with the new EO restrictions.
What must federal contractors do to comply with the EO?
For federal contracts entered after November 21, 2020 federal contractors must:
- Include the four paragraphs under Section 4 of the EO in every subcontract or purchase order – this requirement expands the “flow down” obligations;
- Provide a notice to each labor union or representative of workers with which it has a collective bargaining agreement stating the contractor’s commitments under this Executive Order;
- Post a notice describing the new EO in conspicuous places available to employees and applicants; and,
- Ensure that diversity and workplace trainings do not include the prohibited areas involving divisive concepts, and race or sex stereotyping or scapegoating.
In addition, as mentioned above, OFCCP is taking the position that the restrictions on workplace training is effective now as “training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing employee’s compensation or the compensation of others.”
How the EO will be enforced?
The Executive Order directed OFCCP to establish a hotline and to investigate complaints under the new EO and EO 11246 alleging that a federal contractor is using training that violates those orders. On September 28, 2020, OFCCP announced that it had already established its new OFCCP Complaint Hotline to Combat Race and Sex Stereotyping which can be reached at 202-343-2008 or via email at OFCCPComplaintHotline@dol.gov. According to the OFCCP press release, an employee may file a complaint regarding training programs that they believe to be in violation via OFCCP’s website or OFCCP can send them a copy of the complaint form by email or regular mail.
Additionally, if a subcontractor or vendor refuses to comply with the new EO and either threatens or sues the federal contractor for terminating their contract, the contractor can ask the federal government to enter into the litigation.
Presumably to assist OFCCP in better understanding contractors’ diversity and inclusion training programs, by October 22, 2020 OFCCP will publish in the Federal Register a request for information from federal contractors about contractors’ workplace training, workshops or similar programming provided to the contractor’s employees on diversity and inclusion, and also request copies of the materials and information about the expense, duration, and frequency.
Impact of failure to comply
Any federal contractor that fails to comply with the requirements of the new EO and EO 11246 and any implementing regulations may have their contracts cancelled, terminated, or suspended in whole or in part and the contractor may be debarred – that is, declared ineligible for future federal government contracts.
What federal contractors should do now?
While the full impact of the EO is unclear before there is further guidance, including what types of workplace trainings will be prohibited and whether the Federal acquisition regulations (FAR) will be amended by the November 21st effective date, federal contractors should be prepared to comply, and undertake the following actions:
- Assess their diversity and inclusion workplace training programs to identify any components that may violate the EO, based on the restrictions and examples included in the new EO. Additionally, monitor any future guidance that may be provided by the Attorney General and EEOC. Any questionable trainings should be reviewed by counsel to secure legal advice on whether the continuation of the trainings could pose risks of violating the EO;
Based on the September 28, 2020 OMB Memorandum to federal agencies, expect OFCCP to do a keyword search for such terms as “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.”
- Be prepared to make changes to the procurement documents to include the new expanded flow down clauses;
- Ensure that the required notices to applicable unions and employee representatives are issued;
- Ensure that the protocols are in place for effectively responding to any hotline complaints and resulting OFCCP investigations;
- Monitor all new federal contracts, modifications and extensions to identify if the terms under the EO are included; and,
- The federal contractors that are required to provide workplace training under a judicial order or consent decree, a compliance agreement with either EEOC or OFCCP, or other similar obligations should evaluate whether a modification of their training obligations should be sought to ensure compliance with the new EO training restrictions.
Contact your FortneyScott attorney for additional information and assistance in complying with this new Executive Order.