By: Kaitlyn Richards
Presidential Executive Order 13950 Combating Race and Sex Stereotyping (“the Order”) was issued on September 22, 2020, and already has had a significant impact on the business community. The New York Times refers to the Order as “banning the ‘malign ideology’ of racial sensitivity training.”
The Order prohibits federal government, its contractors, subcontractors and grantees, from offering certain racial and gender sensitivity training.
With a change in administration to Joe Biden and Kamala Harris, we expect to see a rescission of this order but a review of what happened as a result, and what to do in the interim, is important.
The business community has been extremely vocal about opposition to the Order, going so far as to write letters to the White House urging it to be withdrawn. Since issued, the Order has created an environment of confusion, uncertainty, and frustration. The Times quotes a Southfield, Michigan trainer, VanPelt, “To see the progress, to see the movement, and then all of a sudden, ‘propaganda,’ ‘divisive,’ those words just are so, so untrue of what this training actually does. If we’re going to actually have this conversation, move the needle, get people thinking about and doing something about systemic racism, you have to talk about it.”
Danielle Conway, Dean of Penn State Dickinson Law, emphasized similar thoughts to those of VanPelt in an essay entitled, “Department of Defense Procurement Practices After Adarand.” Referencing Justice Ginsburg’s dissent in the Adarand decision, she stated, “…Acknowledging the existence of racial inequality is only the beginning. As Justice Ginsburg noted: ‘[b]ias, both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.’” And in a separate essay, Dean Conway pointed out that “Color-blindness is a convenient tool of the privileged. It lies dormant for some issues and alive for others.” This Order appears to be an application of this notion in implying that silence is the best policy for topics related to race or sex differences.
Until the Order is withdrawn, or at least re-worked, it is clear it will have a significant, detrimental impact on businesses and workers across the country, and our society at large. Fortunately, the expectation is that in 2021 this Order will be rescinded.
what types of training does the executive order prohibit?
Executive Order 13950 states that contractors 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.” The Department of Labor guidelines state that 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 Office of Federal Contract Compliance Programs has elaborated on what kind of diversity training may NOT be offered by contractors. Prohibited concepts include:
- 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 Order applies to governmental contracts executed after November 21, 2020. Therefore, the Order does not apply to any contracts that are currently in place. And the Order does not mention applicability to a business where only one component of the enterprise has a federal contract. However, to be safe, any organizations in this category should assume that the Order applies to their entire enterprise.
Contracts that are in violation of the Order may be canceled, terminated, or suspended. Contractors could be ineligible for future federal contracts as well, although one would expect that when Joe Biden takes the helm that this may also be rescinded. Nevertheless, we aren’t sure so it is important for employers with federal contracts or those who intend to secure them, to review all training materials for subjects that may be prohibited by the Order, at least in the short-term. There are many problems with the U.S. Government telling businesses not to provide diversity bias and anti-discrimination training to their employees, which is what the Order does in practical terms.
It seems imperative to compare this Order to the previous Executive Order 11246 issued by President Lyndon B. Johnson in 1965. E.O. 11246 required federal contractors to take affirmative action and prohibited them from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. This Order appears to take a large step in the opposite direction. Here, it appears to be an attempt to reverse any beneficial impacts of President Johnson’s previous executive order, going so far as to prohibit concepts that are widely accepted and historically-based.
widespread confusion within the business community
Many businesses have written letters to the White House, expressing opposition; just this month, the U.S. Chamber of Commerce and over 100 other business groups wrote a letter outlining their concerns. There is a worry that the Order will “create confusion and uncertainty, lead to non-meritorious investigations, and hinder the ability of employers to implement critical programs to promote diversity and combat discrimination.” Many businesses use trainings to ensure that their workplaces are inclusive and competitive. Other groups are pushing for the Order to be re-imagined in a way that takes the business community into perspective and would support “appropriate” workplace training programs.
While the stated purpose of the Order is to combat divisiveness, it is having the opposite effect primarily because it fails to recognize systemic discrimination issues we have in our country. It is clear some change is needed to counteract such divisive tactics and ensure that these valuable trainings may be implemented and with President-elect Joe Biden, we should see such changes.
President Barron of Penn State University recently expressed Penn State’s opposition to the Executive Order on Combating Race and Sex stereotyping. 
Since the Order applies to colleges and universities, President Barron and Penn State University had to react. He actively opposes the Order and requests its withdrawal with other American colleges and universities, being a signatory on a letter from the American Council of Education to President Trump.
While I encourage you to read the letter in its entir
ety as it provides excellent viewpoints, here are some impactful quotes from it:
“Higher education, our country’s business and military communities, and other sectors of American society fundamentally agree that promoting and enabling diversity and inclusion are essential to the long-term strength, economic competitiveness, and security of our nation. It is also the right thing to do. The recent tragedies of racial violence underscore now, more than ever, the importance of vigorous efforts to address racism and injustice and to promote diversity and inclusion, as Americans strive together to create a more perfect union.”
“Workplace diversity and inclusion training programs on our campuses align with federal and state anti-discrimination laws and, at institutions that are government contractors, the non-discrimination-in-employment mandates of Executive Order 11246. Executive Order 13950 is already disrupting the planning and delivery of these programs, creating a chilling effect on the good faith and lawful efforts of campus officials to build and sustain non-discriminatory and non-hostile workplaces and learning communities.”
Recently, a class action lawsuit was filed by civil rights groups: The NAACP Legal Defense and Educational Fund, National Urban League and National Fair Housing Alliance stating in their complaint that the Order is “chillingly punitive” and that it violates the guarantees of free speech, equal protection and due process. Further, “EO 13950 unconstitutionally forces Plaintiffs to choose between censoring speech on these important issues or forfeiting any opportunity to enter into a federal contract for the provision of goods or services or to receive federal funds as a grant recipient.”
The Order’s legal impact on employers
There is significant legal importance and value of trainings that would now be prohibited under the Order. These prohibitions could prove detrimental to businesses and nonprofit communities. Many Federal statutes, most importantly Titles VII and IX, require that employers have proactive policies against racial and sexual discrimination. Many states have anti-discrimination statutes in place as well and as pointed out above, businesses and universities have training in place based on the statutes currently applicable. Without strict guidelines and examples of what trainings are permitted, many employers could see themselves tied up in complex, time-consuming litigation, all because they are trying to do the right thing and train against implicit and explicit bias and discrimination.
Diversity trainings are critically important in the workplace environment. Especially given the current political climate in the United States, it is imperative that employers address racial or sexual tensions proactively, to ensure a respectful workplace environment. Instead, the Order seems to imply that silence is the best policy regarding these topics. Trainings on topics such as implicit or unconscious bias are now prohibited to the extent that they teach that an individual, by virtue of their race or sex, is racist, sexist, or oppressive. However, these trainings are allowed if they are designed to inform workers or foster discussion about opinions or stereotypes. Knowing the key definitions are going to be instrumental to your planning and moving forward.
Currently, to avoid issues at all, many businesses have ceased training altogether, according to a recent article by NPR. Businesses need to remember that this should only be a short-term hiatus to be taken until the Order can be rescinded.
The consequence of being in violation of the Order, as of this writing? If the Office of Federal Contract Compliance Programs of the DoL receives a complaint about your training program, it will investigate immediately. Federal contractors, universities, grantees, etc. that violate the Executive Order may have their federal contracts canceled, terminated, or suspended. Worse yet, the business who violates the Order may also be declared ineligible for further federal contracts.
what trainings need to be reviewed?
In adherence to the Order, any trainings that discuss affirmative action or accommodating racial and sexual differences should be reviewed to ensure that they do not imply that individuals should be treated differently solely or partly because of their race or sex.
Additionally, trainings that reference reparations, implicit bias, or systemic discrimination should also be reviewed. Employers should confirm that the language of their trainings is objective and broad enough so as to be permissible under the Order. They must be designed in a way that fosters discussion but does not pressure conformity of any one viewpoint.
Any employers who are not putting training on temporary hold should carefully read (and speak to a labor lawyer about) the Order and the DOL Guidelines. It is crucial to thoroughly understand the various phrases used in the Order, most importantly the definition of “race and sex scapegoating.” Unfortunately, many phrases are not yet defined. So, absent further guidance, employers should probably play it safe and read through their trainings with an intensely critical eye. No activities should promote divisiveness.
This area of the law may change swiftly, so keep an eye out. This post was created on November 9, 2020.
Kaitlyn Richards, at the time of this post, is a 3L at Penn State Dickinson Law. Originally from Wilson, North Carolina, Kaitlyn attended The University of North Carolina at Chapel Hill for her undergraduate degrees. She is interested in employment law, corporate compliance, and education policy. Kaitlyn plans to move back to her home state after graduation to pursue a career in employment law with a focus on employee discrimination and disability rights.
SOURCES:
https://www.federalregister.gov/documents/2020/09/28/2020-21534/combating-race-and-sex-stereotyping
https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950
https://us10.campaign-archive.com/?e=13a33fc926&u=41fab58a900ff039c399dedb8&id=2d9ec47847
https://us10.campaign-archive.com/?e=13a33fc926&u=41fab58a900ff039c399dedb8&id=bea2b8329c
New York Times, Trump Attack on Diversity Training Has a Quick and Chilling Effect
NPR: Agencies, Contractors Suspend Diversity Training to Avoid Violating Trump Order.
PHOTO SOURCES:
https://news.blrstage.com/app/uploads/sites/3/2019/01/Diversity-Inclusion-02.jpg
