IMPACT OF EXECUTIVE ORDER 13950 ON CONTRACTOR DIVERSITY TRAINING
The EO prohibits contractors from conducting diversity and inclusion trainings on “divisive concepts” such as race or sex stereotyping (ascribing character traits, values, moral and ethical codes, privilege, status or beliefs to a race or sex) and race or sex scapegoating (assigning fault, blame, or bias to a race or sex or individuals of that race or sex or any claim that a person is consciously or unconsciously inherently racist or sexist or inclined to oppress others). It specifically prohibits training on: “(1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual's moral character is necessarily determined by his or her race or sex; (7) 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; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) 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 training restrictions appear to apply to all government contractors and their subcontractors, regardless of whether those employees support a federal contract.
The EO provides language that all government contracting agencies and contractors must include in every federal contract or subcontract stating a contractor agrees not to use any workplace training that includes the prohibited concepts, and allows a contract to be cancelled if a contractor fails to comply. The OFFCP is responsible for investigating complaints and enforcing the EO. The Department of Labor, in accordance with the EO, has published a Request for Information from the public relating to workplace trainings that involve race or sex stereotyping or scapegoating. The comment period ends on December 1, 2020.
The EO leaves many government contractors wondering what can be included in equity, diversity and inclusion initiatives and trainings. While the EO likely impacts some current training on unconscious bias, privilege and sexual harassment, such trainings can be conducted so long as they do not assert blame or target a specific group. Trainings can broadly discuss the development of bias, how bias manifests itself, and how it can be combatted. The Director of the OFFCP has stated that unconscious bias training is fine so long as it “teaches that everyone, based upon the human condition, has unconscious biases.” Furthermore, the EO does not place limitations on trainings that involve cultural competence, generational diversity, communicating within differences, and training unrelated to race or gender.
There is the potential the EO will be short-lived depending on the election results. Even if President Trump is re-elected, it is expected the EO will be challenged in Court on various grounds. Nonetheless, employers who may be entering into new or renewed covered federal contracts after November 21, 2020 should evaluate current diversity and inclusion programs to determine whether any changes are warranted.
For more information about the EO, please see the DOL’s Frequently Asked Questions.