New EO on Diversity Training Could Potentially Impact Most Employers

[Editor's Note:  As expected, President Biden rescinded this EO on his first day.]

On September 22, 2020, President Trump issued Executive Order 13950 which bars federal agencies, federal grant recipients and federal contractors from engaging in employee training which utilizes racial or sexual stereotyping or scapegoating.   It does not ban all training about implicit or unconscious bias, but only that employees may not be instructed that they hold such implicit bias by virtue of their sex or race.    The Office of Federal Contract Compliance Programs (OFCCP) has been tasked with enforcement.  OFCCP has issued FAQ and on September 28, 2020 opened a hotline to receive employee complaints about the banned stereotyping and scapegoating and about employment discrimination in general (which is covered by Executive Order 11246).  The EO also directs the Attorney General to examine Title VII ramifications and with the EEOC to "issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII." While certain provisions and applications of the new Executive Order are likely to be challenged under the First Amendment, most of it would be relatively uncontroversial if this were not an election year.

“While the order is effective immediately, its specific requirements for Federal contractors apply only to those with Federal contracts entered into 60 days after the date of the order, or Nov. 21, 2020. However, training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.  An employee may file a complaint regarding training programs that they believe to be in violation via OFCCP’s website at https://www.dol.gov/agencies/ofccp/contact/file-complaint or OFCCP can send them a copy of the complaint form by email or regular mail.

The stated policy of the new EO is "is “not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

The type of messages which the EO seeks to prohibit include the following:

(a) “Divisive concepts” means the concepts that (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 term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.

(b) “Race or sex stereotyping” means 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.

(c) “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. It similarly 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.

With respect to federal contractors covered by affirmative action requirements, the EO provides that future government contracts shall contain the following requirement of contractors:

1. The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (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 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, 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.

2. The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

3. In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided by any rules, regulations, or orders the Secretary of Labor has issued or adopted pursuant to Executive Order 11246, including subpart D of that order.

4. The contractor will include the provisions of paragraphs (1) through (4) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”

By the end of this month, OFCCP is also directed to request through the Federal Register information about diversity training offered to employees by federal contractors.  It is unclear whether this is past training or future training materials.

Within 30 days of the date of this order, the Director of OFCCP shall publish in the Federal Register a request for information seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. The request for information should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.

It is unclear what the purpose of the Request for Information is or how this information will be utilized.  OFCCP indicates that its Request for Information will seek the following:

The Request for Information will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950.

The EO also directs action involving the applicability of Title VII.

Sec. 8. Title VII Guidance. The Attorney General should continue to assess the extent to which workplace training that teaches the divisive concepts set forth in section 2(a) of this order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. If appropriate, the Attorney General and the Equal Employment Opportunity Commission shall issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.

The EO specifically does not ban “as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.”

Recipients of federal grants will be prohibited from using federal funds to promote the “divisive concepts.”

OFCCP’s FAQ make clear that implicit bias training is not prohibited by the EO.

Unconscious or implicit bias training is prohibited 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.

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.

OFCCP’s FAQ also gives examples of the type of training concepts which are banned:

·       One race or sex is inherently superior to another race or sex;

·       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.

The Office of Management and Budget has also directed federal agencies to search through procurement and financial records for certain terms in order to identify potentially problematic diversity training materials that might violate the Order, but such a keyword review, by itself, would be insufficient to satisfy the directive and must be accompanied by a more detailed review of the particular training materials.  Those key words include "critical race theory," "white privilege," "intersectionality," "systemic racism," "positionality," "racial humility," and "unconscious bias."

I do not make editorial comments here very often, but when I have provided training in the past, it would never have occurred to me to suggest that a person has implicit bias by virtue of a race or sex.  I still have discussed implicit bias as humans and attribution errors where we – as humans – assume a motivation for someone else’s actions.   Nonetheless, I attended a training recently that made a compelling argument for why it is a mistake to be color blind when trying to be sensitive to others and think that this is a concept worth discussing.  Perhaps it will still be permitted as an academic discussion without endorsement.  But did I just endorse it?  Yikes.  I will add that I understand the importance of making color-blind decisions in employment.  Or I have I dug a deeper hole for myself?   In any event, we are likely to have an idea within the next month of how much of this EO – if any of it – survives into 2021.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.