New Executive Order Limits Workplace Diversity Training Offered by Federal Contractors

On September 22, 2020, President Donald J. Trump issued an Executive Order on Combating Race and Sex Stereotyping designed to “promote unity in the Federal workforce” and “combat offensive and anti-American race and sex stereotyping and scapegoating.” Contending that many are pushing a harmful ideology “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country” and that “some people, simply on account of their race or sex, are oppressors,” the Order prohibits federal contractors and federal grantees from utilizing workplace training that contains certain “divisive concepts.”

Among the prohibited divisive concepts are the following:

• 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;
• Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

Requirements for Federal Contractors

New Contractual Provisions and Notice Requirements
The Order requires that all federal contracts entered into by organizations on or after November 21, 2020 include language affirming that during the performance of the contract, the contractor will not utilize workplace training that “inculcates in its employees any form of race or sex stereotyping or…scapegoating,” including training that contains the above-defined “divisive concepts.” Federal contractors must also include the foregoing contract language in all covered subcontracts and purchase orders.

In addition, the Order requires federal contractors with unionized workforces to provide their labor union with a notice (which will be prepared by the federal agency’s contracting officer) that advises the union of the Company’s commitments under the Executive Order. The Company must post copies of the notice in conspicuous places viewable to employees and applicants.

Information Collection
In addition to these contract and notice requirements, the Order directs the Office of Federal Contract Compliance Programs (OFCCP) to publish a request for information by no later than October 22, 2020 which seeks information from federal contractors, subcontractors and their employees regarding the training and workshops offered to employees. Per the Order, the OFCCP should also request copies of any training programs that relate to diversity and inclusion.

The OFCCP Hotline and Enforcement

Pursuant to the Order, on September 28, 2020, the Department of Labor launched a hotline and email address to “receive and investigate complaints” alleging that a federal contractor is utilizing training programs that violate the Executive Order. Federal contractors found in violation of the Order could face significant repercussions, including the suspension, cancellation, or termination of their government contracts.

On October 7, 2020, the OFFCP issued its first round of guidance relating to the Order, which confirms the November 21 effective date, reiterates the definitions of prohibited "race or sex stereotyping and scapegoating," and encourages individuals or groups with complaints regarding unlawful training programs to report their concerns via the hotline. The guidance further clarifies that unconscious or implicit bias training is not prohibited by the Order "if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people--regardless of 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."

Next Steps for Employers

The lasting effects of the Order remain up in the air. Particularly given its political nature, the Order will almost certainly be rescinded in the event President Trump is not reelected in November 2020. If not rescinded, the Order will likely face challenges in the courts.

Nonetheless, for so long as the Order remains in place, federal contractors should review their in-place and planned training programs to ensure that they are well-rounded and do not contain prohibited “divisive concepts” identified in the Order. Federal contractors should also be prepared to comply with the above-referenced contract and notice requirements beginning on November 21, 2020.

For assistance in reviewing your diversity training programs, reviewing contract language, or resolving any questions regarding the Executive Order, please contact your local Quarles & Brady attorney or:

• Lindsey Davis: (414) 277-3073 / lindsey.davis@quarles.com
• Christopher Nickels: (414) 277-5419 / chris.nickels@quarles.com