Client Alert

Executive Order on “Combatting Race and Sex Stereotyping”

September 28, 2020

By Kenneth W. Gage, Kenneth M. Willner, Adriana N. Simmons & Blake Bertagna

On September 22, 2020 President Trump issued an “Executive Order on Combating Race and Sex Stereotyping” (the “Order”), focused in large part on workplace training programs used by Government Contractors, recipients of Federal Grants, U.S. Uniformed Services, and Federal Agencies.
The stated purpose of the President’s Order is to combat the ideology that the United States of America is “inherently sexist and racist,” which the Order suggests is currently promoted in workplace diversity trainings.  This comes at a time when many employers have intensified their diversity and inclusion initiatives, some with a particular focus on concepts of unconscious bias and reflections on whether certain majority groups have benefited (and continue to benefit) from privilege.

Below is a summary of the key provisions.

New Requirements for Government Contractors

Starting with Contracts entered into November 21, 2020 or after, all Government Contracts shall include the following provision:

1. The Contractor agrees not to use workplace training that “inculcates in its employees” any form of race or sex stereotyping, “scapegoating,” or “divisive concepts,” including the following 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 a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

2. The Contractor agrees to send to each labor union a notice, to be provided by the Agency contracting officer, advising the union of the employer’s commitment to the Order, and to post copies of such notice in conspicuous places available to applicants and employees;

3. The Contractor agrees that non-compliance with items 1, 2 and 4 can result in cancellation, termination or suspension of the contract, or debarment from Government Contracting; and

4. The Contractor shall include the above provisions in every subcontract or purchase order.

OFCCP Data Collection of Diversity and Inclusion Training

The Order further directs the Office of Federal Contract Compliance Programs (“OFCCP”) to  publish a request for information in the Federal Register seeking information from Contractors “and employees” regarding trainings, workshops, or similar diversity, equity, and inclusion programs currently provided to employees as well as information about the expense, frequency, and duration of these trainings.  This is expected by October 22, 2020.  The Order is silent as to how broadly or when the request for information may be circulated.

The OFCCP is further directed to “establish a hotline and investigate complaints received under both this order as well as Executive Order 11246 alleging that a Federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders.”
Additional Provisions Regarding Federal Agency Grants and Private Employers

The Order also instructs the heads of all Federal Agencies to review their current grant programs and identify programs that the Agency may require, as a condition of receiving federal grant funding, to certify that they will not use federal funds to promote the prohibited concepts, outlined above.  These Agency heads are responsible for providing a report to the Director of the Office of Management and Budget (“OMB”) within 60 days of the Order, identifying the programs identified.

Finally, the Order instructs the Attorney General to “continue to assess” the extent to which private employer workplace trainings teaching the “divisive concepts” (described above) could create a hostile work environment and therefore liability under Title VII.  “If appropriate,” the Executive Order states, the Attorney General and the EEOC shall issue guidance for employers “to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.”

Conclusion

The impact of the Order on employer training programs will depend upon the specific content presented in such programs.  To be sure, much of what is prohibited by the Order would be improper under current law (e.g. promoting the idea that one race or sex is inherently superior).  Still, the Order raises questions concerning the manner in which concepts like unconscious bias are presented in workplace training, and Government Contractors covered by the Order may want to review their training programs for compliance.   Our team will continue to monitor developments and provide updates as they become available.

Click here for a PDF of the full text