Beginning November 20, 2020, President Trump’s Executive Order 13950 On Combating Race and Sex Stereotyping (“EO 13950” or “The Order”) will fundamentally reshape the way government contractors conduct diversity training.  Signed September 22, 2020, the Order prohibits federal workplace trainings that “promote race or sex stereotyping or scapegoating.” Importantly for private employers, federal contractors also “will not be permitted to inculcate such views in their employees.” On October 7, 2020, the Department of Labor issued guidance in the form of “frequently asked questions” regarding EO 13950.

Training requirements

The Order does not affirmatively require new training. Instead, it prohibits federal contractors from providing trainings “that inculcate in employees race or sex stereotyping or scapegoating.” However, the meaning of this term is not as intuitive as it first appears.

Instead, the Order provides a laundry list of prohibited training topics, many of which are not controversial, such as prohibiting training that “one race or sex is inherently superior to another race or sex.” But the Order appears to prohibit several categories of training that may make existing, standard programs impermissible. For example, EO 13950 prohibits:

  • Training that members of one race or sex cannot and should not attempt to treat others without respect to race or sex.
    • Possible impact – Affirmative action-related training, as well as any training that references acknowledging and accommodating differences, may be impermissible.
  • Training that 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.
    • Possible ompact – Training that references reparations, implicit or unconscious bias, systemic discrimination, or affirmative action may be impermissible.
  • Training that “meritocracy or traits such as a hard work ethic” are racist or sexist, or were created by a particular race to oppress another race.
    • Possible impact – Training that references affirmative action and certain micro aggressions may be impermissible.

Indeed, the Department of Labor’s guidance specifically states that unconscious bias and 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.”

Additional requirements

The Order also requires that federal contractors post notice of compliance and provide information about compliance with EO 13950 to each labor union with which it works. Additionally, the Order requires federal contractors to impose the requirements of EO 13950 on any subcontractors.

Applicability

The Order applies to contracts executed sixty (60) days after the date of the Order (September 22, 2020).  Therefore, no changes are required for contracts executed prior to November 21, 2020. By extension, the Order has no application to contracts that are currently in place.

The Department of Labor guidance, however, states that it may investigate claims of sex and race stereotyping now “pursuant to its existing authority under Executive Order 11246,” Equal Employment Opportunity, which prohibits employment discrimination.

The Order and guidance are silent regarding applicability throughout an enterprise where only one component has a federal contract. In the absence of further guidance, if one entity within an organization has a federal contract, then to be safe, the organization should assume that the Order applies enterprise-wide.

Employer takeaways

  1. Contracts found in violation of the Order may be cancelled, terminated, or suspended in whole or in part. The contractor may also be declared ineligible for further federal contracts.
  2. Employers who intend to secure federal contracts on or after November 21, 2020 should therefore review all training materials for content that may be prohibited by EO 13950. Careful attention should be paid to non-obvious violations.
  3. Early indications suggest that litigation challenging the Order is likely. Be sure to check back for updates.