On Sept. 22, 2020, President Trump issued an Executive Order (EO) titled “Combating Race and Sex Stereotyping.” This order bans the federal government, contractors, and grant recipients from conducting employee diversity training containing “divisive concepts” which “promote race or sex stereotyping or scapegoating.” Contractors will need to review their diversity and sexual harassment training materials and programs to ensure compliance with the EO.
The definitions in Section 2 of the EO are key to compliance. The term “divisive concepts” lists the following nine concepts that workplace trainings must avoid:
- One race or sex is inherently superior to another race or sex;
- The United States is fundamentally racist or sexist;
- 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.
Section 2 also defines “race or sex stereotyping” as “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 it defines “race or sex scapegoating” to mean “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
The EO’s prohibition on workplace trainings that include concepts covered by these definitions will apply to all new contracts — those entered into after the date of the EO — which should give contractors worried about this EO’s application some breathing room and time to adjust their trainings if needed. The EO will not apply to existing contracts, unless a modification is issued to include it. Contractors are required to include the EO’s prohibitions in all subcontracts and purchase orders unless exempted by rules, regulations, or orders of the secretary of labor.
The EO requires the Office of Federal Contractor Compliance Programs (OFCCP) to establish a hotline and investigate complaints received under this EO and EO 11246 (Equal Employment Opportunity), which allege that a contractor is using workplace training programs in violation of these EOs. Finally, it requires the OFCCP to seek information from contractors and subcontractors — and their employees — about the diversity and inclusion training, workshops, or similar programming being provided to employees.
Of key note, Section 10 of the EO provides several carve outs which should put contractors at ease. First, it clarifies that contractors are not prohibited from “promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.” Second, the order does not prohibit “discussing, as part of a larger course of academic instruction, the divisive concepts” so long as it is done “in an objective manner and without endorsement” of such concepts.
If a contractor receives a contract containing this EO, it should carefully review its workplace trainings for compliance. The penalties for violation are rather stiff, including cancellation, termination, or suspension of contracts. An agency may also refer a contractor in violation of this EO for suspension or debarment. Finally, the EO authorizes the attorney general to investigate whether a contractor’s trainings contribute to the creation of a hostile work environment, which could create Title VII liability under the Civil Rights Act.
While it is likely this EO will be challenged in court, both for administrative and constitutional reasons, it is important that contractors pay attention to their contracts going forward, and be prepared to comply. In the event your training materials violate any of the concepts outlined in this EO, they will need to be revised for compliance after you receive a contract containing this EO. Members of Taft’s Government Contracts and Employment and Labor Relations practice groups can assist you with this process.