November 30, 2020

Volume X, Number 335

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The 2020 Election and Executive Orders: How Federal Contractors Provide Lawful Diversity and Unconscious Bias Training

President Trump’s l Executive Order 13950 (“EO 13950”) – intended to combat “Race and Sex Stereotyping,” as per the President – may require federal agencies, federal government contractors and subcontractors, and federal grant recipients to change the way they implement diversity and sensitivity training or face the possibility of losing their government contracts. With Joe Biden’s presumptive presidential election win (pending official certification of results) ), will employers still need to change their training materials?

What does Executive Order 13950 prohibit?

Under EO 13950, businesses entering into government contracts on or after November 21, 2020 are prohibited from conducting any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” Such” scapegoating” includes any claim that consciously or unconsciously, and by virtue of their 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.

Examples of prohibited scapegoating listed in the Executive Order are wide-ranging. Precluded concepts include teachings that:

  • An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • 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;
  • Meritocracy or traits such as “a hard work ethic” are racist or sexist, or were created by a particular race to oppress another race.

How does Executive Order 13950 impact federal contractors?

The Office of Federal Contract Compliance Programs asserts that training is not prohibited if it informs workers, or fosters discussion, about pre-conceptions, opinions, or stereotypes that people may have. Nonetheless, there is a concern that training on issues such as unconscious and systemic bias, privilege, or affirmative-action could be considered to be in violation of EO 13950, especially if an employee attending the training feels uncomfortable as a result of such training.

A government contractor found to be in violation of the Executive Order could have its contracts canceled, terminated, or suspended, and may be declared ineligible for future federal government contracts.

Has there been any reaction to Executive Order 13950?

Various governmental departments and agencies, including the Justice Department, have cancelled or suspended diversity and inclusion training programs. Pro-business groups, such as the U.S. Chamber of Commerce, have reacted negatively to EO 13950, expressing concern that the order causes confusion and uncertainty over what types of diversity programs government contractors may offer. These groups have also commented that EO 13950 hinders employers’ ability to promote diversity and combat discrimination in the workplace. Likewise, civil rights groups, including the NAACP Legal Defense Fund and a coalition of LGBTQ groups, have challenged the Trump Administration’s implementation of EO 13950 in the courts on First and Fifth Amendment grounds. Currently, the courts have not resolved the issues.

How can Executive Order 13950 be changed?

Aside from the legal challenges EO 13950 faces, an incoming Biden Administration could revoke or rescind EO 13950 via executive order sometime after inauguration day on January 20, 2021. Some believe that a Biden administration would move quickly to issue new executive orders following in the footsteps of Presidents Obama and Trump, each of whom issued executive orders undoing executive orders issued by their predecessors within days of being sworn in.

What happens between now and any change from the incoming administration?

Until a new administration revokes or rescinds EO 13950, or until a court issues an injunction preventing the Trump administration from enforcing EO 13950, government contractors should be mindful of its terms and review their diversity and inclusion training programs to ensure compliance with EO 13950.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 325
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About this Author

Chris Cruz Employment Attorney Greenberg Traurig

Chris Cruz is an experienced employment law litigator and counselor who focuses on representing employers in a wide range of complex, single plaintiff and multiparty matters involving wage and hour, wrongful termination, and retaliation issues. His work as an in-house attorney has provided him with deep insight into the business objectives of his clients and their day-to-day concerns, allowing Chris to provide practical legal advice to his clients on compliance and strategic matters such as employee discipline, reductions in force, accommodations and leaves of absence, development and...

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Philip Person Attorney Litigation Lawyer Greenberg Traurig

Philip I. Person focuses his practice on representing employers in wrongful termination, harassment, discrimination, retaliation, wage and hour, trade secret misappropriation, non-competition, non-solicitation, and whistleblower claims. Philip is an experienced litigator, having defended employers against single-plaintiff and class action litigation in both federal and state courts. He also represents employers in labor and employment arbitrations.

Philip counsels and advises his clients on employment issues pertaining to leaves of absences, disciplinary actions, terminations,...

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