On September 20, 2020, President Trump issued Executive Order 13950 (EO 13950) which takes direct aim at certain diversity and/or inclusion training programs that the President views as promoting what he calls race and sex stereotyping. This Order applies to employers who contract with the federal government or receive federal grant money. Contractors who run afoul of these new mandates jeopardize their current and future contracts and grant recipients jeopardize their funding. Below is summary of the new training rules:

What Does EO 13950 Prohibit?

EO 13950 prohibits federal contractors and recipients of federal grants from inculcating or promoting in their workplace training materials that promote race or sex stereotyping or scapegoating. [link] Such topics are often included as part of a diversity and inclusion initiative. Prohibited training materials are those which include what the Order calls “divisive concepts” defined as follows:

  • one race or sex is inherently superior to another race or sex;
  • the United States is fundamentally racist or sexist;
  • an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • an individual’s moral character is necessarily determined by his or her race or sex;
  • 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; or
  • meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

“Race or sex stereotyping” is further defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” “Race or sex scapegoating” is defined as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex [and] encompasses any claim that, consciously or unconsciously, and by virtue of his or her 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.”

The stated purpose of EO 13950 is the belief in the “inherent equality of every individual” which is in stark contrast to the training EO 13950 prohibits, which has as its subject the ideology that “America is an irredeemably racist and sexist country,” that “some people, simply on the account of their race or sex, are oppressors, and that racial and sexual identities are more important than our common status as human beings and Americans.” The following are given as examples of training materials that prompted the President to issue the Executive Order.

  • A seminar that promoted arguments that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism,” and encouraged employees to avoid “narratives” that Americans should “be more color-blind” or “let people’s skills and personalities be what differentiates them.”
  • Training materials stating that racism “is interwoven into every fabric of America” and described statements like “color blindness” and the “meritocracy” as “actions of bias.”
  • Materials for use by nonminority males stating that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other.
  • A graphic claiming that concepts like “[o]bjective, rational linear thinking,” “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” It also stated that “[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.”

What Does EO 13950 Require of Government Contractors and Grant Recipients?

Section four of EO 13950 contains the requirements for government contractors. There are now four required clauses that all government contracting agencies must include in every government contract.

  1. The first clause bans any workplace training that inculcates in its employees any form of race or sex stereotyping or scapegoating by including “divisive concepts.”
  2. The second clause requires notice to each labor union or representative of workers which will be provided by the contracting officer advising the union or representative of the contractor’s commitments under EO 13950. The contractor must also post the notice in conspicuous places available to employees and applicants.
  3. The third clause provides penalties for noncompliance with clauses 1, 2, and 4 which can result in cancellation or suspension, in whole or in part of the contract, debarment, and any other sanctions authorized by regulations governing government contractors.
  4. The fourth clause mandates inclusion of clauses 1-4 in each nonexempt subcontract or purchase order. This clause also authorizes the contractor to enforce the provisions of EO 13950 against a subcontractor and provides that in the event of litigation with the subcontractor, the contractor can request the United States to intervene.

Guidance issued by the OFCCP includes a telephone and email hotline on its website (link) through which it can receive and investigate any complaints regarding use of prohibited training programs. In addition, OFCCP is currently drafting a request for information, which will be published in the Federal Register by October 22, 2020, that seeks information from federal contractors regarding diversity and/or inclusion training currently offered to employees.

Notably, these requirements apply to government contracts entered into on or after November 22, 2020.

What Does EO 13950 Not Prohibit?

EO 13950 does not prohibit contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided those efforts are consistent with the requirements of the EO. For example, training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

Other Requirements of EO 13950

Although recipients of federal grants are not subject to EO 11246 for affirmative action purposes, EO 13950 authorizes federal agencies, as a condition of providing federal grants, to require the recipient to certify that it will not use any of the funds to promote the “divisive concepts.” Consequently, if your organization receives federal grants, it should ensure that it can make the certification, if required, by the federal agency.

Finally, contractors that provide training to federal agencies are prohibited from promoting any “divisive concepts” and may be subject to debarment from future contracts for doing so.

What Should Government Contractors Do Now?

  1. Review any diversity and/or inclusion training materials currently being used by your organization to determine whether they are compliant with the EO. If they are, you need do nothing.
  2. If the organization’s training materials are not compliant with the contractor’s obligations, determine the cost and time to come into compliance. If the organization is going to continue contracting with the federal government, it must come into compliance for any contracts entered into on or after November 22, 2020.
  3. Since EO 13950 is not effective until November 22, 2020, to the extent your organization could renew any federal contracts before that time, the EO would not apply (at least for the next year) allowing your organization additional time to come into compliance.
  4. Monitor OFCCP’s website to stay current on further developments regarding EO 13950, including the information request which is to be published in the Federal Register no later than October 22, 2020.
  5. Although EO 13950 does not go into effect until November 22, 2020, contractors should still be mindful that OFCCP may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246, which requires contractors and subcontractors to treat employees without regard to their race or sex, among other protected bases, and requires contractors to take affirmative action to ensure such discrimination does not occur.

If you have any questions regarding the issues discussed in this edition of Compliance Matters, please call your firm contact in California at (818) 508-3700 or in North Carolina at (704) 765-1569, or visit us online at www.brgslaw.com.

David Harvey
Richard S. Rosenberg
Ballard Rosenberg Golper & Savitt, LLP