Executive Order Bans Certain Diversity Trainings for Federal Contractors — May Also Impact Private Employers
On September 22, the president issued an Executive Order on Combating Race and Sex Stereotyping, which prohibits certain types of diversity trainings for federal employees and federal contractors. The Order prohibits federal contractors 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.” The prohibition on these types of training applies to any training that would ascribe “character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex.”
The Order effectively ends trainings for federal contractors on topics such as white privilege, systemic racism, and critical race theory. The Order will become effective for federal contractors on November 21, 2020, at which time it will be illegal for federal employers or contractors to continue with prohibited trainings. In advance of implementing the new rules, the Office of Federal Contract Compliance Programs issued a Request for Information on October 22, seeking information from federal contractors on which diversity and inclusion trainings are currently being conducted.
While the Order only applies directly to federal employers and federal government contractors, it suggests that it may extend in some important ways to private employers as well. The Order calls for the US attorney general to “continue to assess the extent to which workplace training that teaches the divisive concepts [discussed in the Order] may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act....” Title VII, the law prohibiting discrimination in the workplace on the basis of race and sex, applies to private employers as well as governmental employers. Although the Attorney General’s Office has not yet clarified to what extent the Order may apply to private employers, it is important to consider potential risks of continuing these types of trainings, at least until there is more clarity regarding the scope of the Order.
Although it is unclear exactly how the Order may affect private employers, some have already started to take action to limit or refocus their diversity and inclusion trainings so as not to run afoul of the Order’s guidance. At the same time, other businesses and commerce organizations have recently asked the president to reconsider or suspend the Order. There is also widespread speculation that, if he is elected president, Joe Biden will promptly rescind the Order, upon taking office. Businesses should continue to monitor developments surrounding the Order, particularly before enacting new diversity and inclusion training programs.
As of now, nothing in the Order or related guidance from the Department of Labor prohibits private employers from continuing with diversity and inclusion trainings that are currently prohibited for federal contractors. However, private employers offering these trainings should pay close attention in the coming weeks to any developments surrounding the Order to avoid potential liability under Title VII for engaging in these trainings.