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President Releases Executive Order Prohibiting Training for Contractors and Federal Grant Recipients

OVERVIEW


On September 22, 2020, US President Donald Trump issued an Executive Order, which prohibits federal contractors and recipients of federal grants from conducting any workplace training that, among other things, includes:

the concepts that . . . (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; . . . (f) 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; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing . . . privileges, status, or beliefs to a race or sex, . . . and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.

The Executive Order further requires each contractor to: (i) send any labor union or representative of workers with which they have a collective bargaining agreement notice of intent to comply with the Order; and (ii) post copies of the notice in conspicuous places available to employees and applicants for employment. The Executive Order also directs the Department of Labor to create a hotline for employees to report employers who violate the Order. Government agencies are also directed to request copies of all diversity and inclusion materials from contractors.

This requirement applies to all contracts and grants entered into after the effective date of the Order, and the requirement takes effect 60 after the effective date of the Order, potentially affecting hundreds of thousands of organizations that currently receive federal assistance through contracts, grants or other programs. No current changes are required for current grant recipients and federal contractors, but may be required in the future to be awarded new contracts or grants to the extent integrated into contracts and grants. To this end, the implementation of this Executive Order through the Department of Labor will be critical, which includes establishment of a hotline to receive complaints, publication of a Request for Information from federal contractors and grantees and potential promulgation of regulations.

This Executive Order is likely to be challenged on various grounds, including First Amendment grounds. Nevertheless, employers who are government contractors—even if your contract is not yet up for renewal—should review their training materials as the definition above could easily extend to any training that references or educates employees about concepts of unconscious bias or suggests in any way that white men face fewer challenges or obstacles than women or people of color. The penalties for violation would include potential disqualification from award from federal contracts or grants, civil and criminal penalties and suspension/debarment from participation in federal programs.

The Executive Order also moves beyond federal contractors by directing the attorney general to “assess the extent to which workplace training that teaches the . . . [foregoing] concepts . . . may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.” Thus, all employers may wish to review their materials in anticipation of future Equal Opportunity Commission (EEOC) action for reverse discrimination.

© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 274
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About this Author

Rachel Cowen, McDermott Law Firm, Chicago, Labor and Employment Law Attorney
Partner

Rachel B. Cowen focuses her practice in various employment discrimination and wrongful termination cases in federal and state courts.

Rachel’s experience includes prosecuting and defending employee mobility and trade secret litigation on an emergency injunctive basis. She also counsels employers facing union organizing activity and picketing, and has successfully tried numerous cases before the National Labor Relations Board. She also handles collective bargaining and labor arbitrations. Additionally,...

312-984-6944
James W. Kim Government Contract Attorney McDermott Will Emery Law Firm
Partner

James W. Kim represents clients in a wide variety of matters related to government contracting, with a particular focus on cases involving the healthcare industry.

 

James has successfully litigated bid protest actions before the Government Accountability Office as well as the US Court of Federal Claims. He also has experience representing government contractors in civil and criminal government fraud investigations involving the False Claims Act, the Procurement Integrity Act and the Anti-Kickback Act. In addition, James represents federal government contractors on a broad range of compliance issues, including Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) compliance, Small Business Administration programs and TRICARE contracting. He also advises clients on transactional matters involving acquisition and/or sale of entities that hold government contracts.

James regularly represents healthcare providers, insurers, and pharmaceutical and medical device companies on regulatory and policy issues related to the health industry, with a particular focus on federal healthcare programs, including federal grant programs, fraud and abuse, 340B Program participation and privacy issues.

Previously, James served as a law clerk to Judge Christine Odell Cook Miller of the US Court of Federal Claims in Washington, DC, and was employed by The September 11th Fund/United Way of New York City, where he managed the delivery of charitable relief services to families of victims of September 11, 2001.

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Maria Rodriguez Employment Lawyer McDermott Will Emery Law Firm
Partner

Maria C. Rodriguez advises US and international corporations with regard to employment law compliance and mergers and acquisitions; and defends employment cases and class action litigation. She is a trusted advisor to clients helping them avoid or resolve disputes and protect resources through proactive and strategic planning. She is experienced working with clients in the sports, media and entertainment, technology, food and restaurant, airline, transportation and distribution, health care and fashion industries.

 

She advises on and defends against class, collective,...

310-788-1586
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