April 11, 2021

Volume XI, Number 101

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April 08, 2021

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Court Order Enjoins Enforcement of Executive Order Limiting Diversity Training

A federal district court has entered a nationwide preliminary injunction stopping the administration from enforcing Executive Order (EO) 13950 - Combating Race and Sex StereotypingSanta Cruz Lesbian and Gay Cmty. Ctr., et al. v. Trump, No. 5:20-cv-07741-BLF (N.D. Cal. Dec. 23, 2020).

EO 13950 prohibits federal contractors and subcontractors from using “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating,” including a list of “divisive concepts.” The Office of Federal Contract Compliance Programs (OFCCP) had set up a hotline to receive complaints regarding training materials and issued an information request soliciting federal contractors to submit training materials for review. In addition, a clause implementing the requirements of EO 13950 was to be inserted into new federal contracts. The clause may have been inserted already into certain Department of Defense contracts.

The district court ruled that the EO violates the Free Speech Clause of the First Amendment “because it impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The court also ruled that parts of the EO are so vague that they violate the Fifth Amendment Due Process Clause because “it is impossible for Plaintiffs to determine what conduct is prohibited.”

A preliminary injunction is a court’s tentative conclusion that the plaintiff is likely to succeed on the merits of the case and otherwise meets the criteria for a preliminary injunction. Thus, the preliminary injunction may be rescinded as the case progresses or reversed on appeal. For now, the OFCCP and other federal government agencies may not enforce the EO.

While the OFCCP has said that training on “divisive concepts” also violates long-existing principles under EO 11246 requiring federal contractors to provide equal employment opportunities, it may be unlikely that the OFCCP will take any enforcement action under EO 11246 in light of the court’s order.

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Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 358
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Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney
Principal

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

303-225-2382
Leslie Stout-Tabackman, Labor Employment Attorney, Shareholder, Jackson Lewis Law Firm
Shareholder

Leslie Stout-Tabackman is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She has a broad-based practice counseling and representing employers on compliance with federal and state workplace laws and regulations, and designing and implementing sound practices and policies.

Ms. Stout-Tabackman regularly counsels and represents clients with matters before the U.S. Department of Labor’s (DOL) Wage and Hour Division, including Fair Labor Standards Act (FLSA) issues and prevailing wage and benefits issues arising under the Service Contract Act...

703-483-8345
F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial...

303-225-2381
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