Working for Justice

Executive Order 13950 Threatens Workplace Diversity and Inclusion Trainings

Posted November 23rd, 2020 by Lucy Zhou and Carolin Guentert in Employment Discrimination.

On September 22, 2020, President Donald Trump signed Executive Order 13950, “Combating Race and Sex Stereotyping,” which, contrary to its title, seeks to undercut workplace equity and inclusion. The Executive Order—ostensibly targeting the anti-racism trainings that proliferated in the wake of the murder of George Floyd and the subsequent national reckoning with systemic racism—prohibits federal contractors and federal grant recipients from “promot[ing] race or sex stereotyping or scapegoating” and teaching “divisive concepts” in their workplace diversity and inclusion trainings.

E.O. 13950’s Provisions

Pursuant to the Executive Order and accompanying FAQs issued by the Office of Federal Contract Compliance Programs (“OFCCP”), federal contractors and subcontractors, federal agencies, the military, and federal grant recipients such as universities and non-profits can no longer administer unconscious or implicit bias training if that training teaches that “an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.” Nor may federal contractors teach employees the “malign ideology . . . that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist.” For example, the Executive Order specifically rebuked the Department of the Treasury for holding “a seminar that promoted arguments that ‘virtually all White people, regardless of how ‘woke’ they are, contribute to racism,’” viewing such trainings as “contrary to the fundamental premises underpinning our Republic.”

Although the workplace training restrictions for federal contracts will apply to those contracts entered into after November 21, 2020, certain aspects of Executive Order 13950 were immediately effective. On September 28, 2020, the OFCCP, which is tasked with enforcing the Executive Order, established a complaint hotline to receive reports of any proscribed training programs or content and made clear that it would begin investigating claims immediately. A government contractor found to be in violation faces penalties including cancellation, termination, or suspension, in whole or in part, of their federal contracts, as well as debarment and/or monetary sanctions.

The Practical Effect of E.O. 13950

Even though Executive Order 13950 does not categorically prohibit unconscious or implicit bias training, and only prohibits training “to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously,” the practical effect has been to chill valuable and legitimate efforts to foster more inclusive workplaces.

Shortly after the Executive Order was issued, the U.S. Office of Personnel Management paused all diversity and inclusion trainings for Executive Branch employees while it conducted a review of all agency training materials. On September 28, 2020, the Office of Management and Budget issued a Memorandum requiring agencies to identify training programs and spending related to diversity and inclusion, and to review such trainings to determine whether they promote the “divisive concepts” prohibited by the Executive Order. The Memorandum identified certain keywords that could help identify prohibited training, including “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” and “unconscious bias.” Soon after, the Department of Justice suspended all diversity and inclusion trainings for its staff.

Schools like Stanford University, the University of Arkansas, the University of Iowa, and John A. Logan College have since moved to comply with the Executive Order, revising or halting diversity programs and canceling scheduled events for fear of losing federal funding. Similar directives may be issued in the coming weeks as federal agencies, contractors, and universities significantly roll back diversity trainings and programs to avoid potentially violating the Executive Order.

The Future of E.O. 13950

Fortunately, the future of Executive Order 13950, while still uncertain, is likely precarious following the outcome of the 2020 presidential election. It is the hope and expectation of civil rights organizations and private sector employers dedicated to promoting workplace equity that President-elect Joseph R. Biden will rescind Executive Order 13590 once he takes office.

In the meantime, the Executive Order has already faced numerous expected legal challenges. On October 29, the NAACP filed a proposed class action on behalf of the National Urban League and the National Fair Housing Alliance, seeking an injunction against Executive Order 13950. According to the complaint, the Executive Order violates the Fifth Amendment’s Equal Protection Clause, as well as the First Amendment because it “identifies viewpoints that the Trump administration dislikes—such as the existence of white privilege, implicit bias, systemic racism, structural inequalities, or intersectional experiences of discrimination—and attempts to purge them from the national conversation.” On November 2, 2020, a coalition of LGBT groups also filed a lawsuit challenging the Executive Order under the First Amendment’s Free Speech Clause and the Fifth Amendment’s Due Process Clause. They allege that under Executive Order 13950, “organizations and individuals that rely on federal funding to provide important social services to marginalized communities are forced to choose between funding that is critical to their clients, and the trainings that are necessary to enable Plaintiffs to serve those clients effectively.”

Executive Order 13950 has also been met with legislative challenge: on October 16, U.S. Congresswoman Joyce Beatty (D-OH-03) introduced a bill to invalidate the Executive Order and reinstate prohibited diversity and inclusion training in federal departments, agencies, and impacted private sector employers. Though the bill is highly unlikely to pass the Republican-controlled Senate, and even less likely to be signed into law by President Trump, the bill is an important symbolic rebuke of Executive Order 13950. The federal government should be leading by example in combatting systemic racism in the workplace. Training and guidance on how employers and employees alike can better foster more diverse, inclusive, and equitable work environments is a mark of progress toward a more just society, not a threat to it.

If you have questions about your rights as an employee, you should consult with an employment lawyer. Sanford Heisler Sharp, LLP has experienced employment lawyers in New York, Washington DC, Baltimore, San Francisco, San Diego, and Tennessee.

Lucy Zhou is an Associate in the Baltimore office of Sanford Heisler Sharp, LLP. She received a bachelor’s degree in Law, Jurisprudence, and Social Thought from Amherst College and a J.D. from NYU School of Law.
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Carolin Guentert is an Associate in the New York office of Sanford Heisler Sharp, LLP. She received her J.D. from New York University School of Law in 2014, her LL.M. with distinction from Georgetown University Law Center in 2019, and her B.A. summa cum laude in International Studies from The College of New Jersey, with minors in French and Women’s and Gender Studies.
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