Overview
UPDATE: On January 20, 2021, President Joe Biden issued an Executive Order rescinding the previous Executive Order in its entirety.
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 days 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.
