Trump Administration Issues Significant Executive Order: "Combating Race and Sex Stereotyping"

Seyfarth Synopsis: Yesterday, President Trump issued an Executive Order on "Combating Race and Sex Stereotyping.”  The Executive Order will impact federal contractors, federal agencies and federal grant recipients in certain key ways including: (1) prohibiting employment training that implicates race or sex stereotyping, “scapegoating” or “divisive concepts” like unconscious bias; (2) implementing new notice and posting requirements; (3) instructing the OFCCP to create a complaint hotline for violations of the order; and (4) instructing the Agency to initiate a process for collecting employee training materials and related information used by contractors relating to diversity and inclusion efforts.  While the Order is effective immediately, the key provisions that impact federal contractors will only be applicable to contracts signed after November 22, 2020.

On September 22, 2020, the Trump Administration issued an Executive Order, titled “Executive Order on Combating Race and Sex Stereotyping.” The Order, which comes at a time when many employers, including federal contractors, have increased their diversity, equity, and inclusion efforts, criticizes the ideology that America is “inherently sexist and racist” or that any race or sex are afforded certain privileges as beliefs that are “designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.”

New Obligations for Federal Contractors

The Order prohibits Federal contractors from implementing workplace training that addresses “any form of race or sex stereotyping[1] or race or sex scapegoating.”[2] The prohibition expressly applies to training that implicates “conscious or unconscious” bias on the basis of an individual’s race or sex.  The Order further directs contractors to abstain from including in training 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.

Finally, the Order mandates that contractors must include specific language provided in the Order in their subcontracts and purchase orders, send notice of their obligations under the Order to their labor unions and post such notice in conspicuous places available to applicants and employees.

OFCCP Hotline and Data Collection of Diversity and Inclusion Training

In addition to the new requirements placed on Federal contractors, the Office of Federal Contracting and Compliance Programs (“OFCCP”) has 30 days to publish a request for information in the Federal Register seeking information from Federal contractors and employees regarding any training, workshop, or similar diversity, equity, and inclusion programming provided to employees.  The request for information contemplates collecting such materials from Federal contractors although neither the regulatory scheme nor the format, timing or collection methodology is known at this time. 

The Order further instructs the OFCCP to “…establish a hotline and investigate complaints received under both this order as well as Executive Order 11246 alleging that a Federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders.” 

Additional Provisions of the Order

The Order instructs the heads of all agencies to review their current grant programs and notes that agencies may require, as a condition of receiving Federal grant funds, that recipients certify that they will not use federal funds to promote the prohibited concepts discussed above.

Of particular significance to all employers, regardless of their status as federal contractors, is the provision that instructs the Attorney General to assess the extent to which private employer workplace training that promulgates the “divisive concepts” previously described could give rise to a Hostile Work Environment claim and potential liability under Title VII.

What Does This Mean for Employers?

While the Order states that it does not prevent contractors from promoting “racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order,” the Order represents a significant shift in how many employers currently approach diversity, equity and inclusion training.

Federal contractors found in violation of the Order could face serious consequences, including cancellation, termination, or suspension of their government contracts.  It is important to note that the key requirements of this Order pertaining to Federal contractors do not take effect immediately. Section 4 of the Executive Order, which implicates the posting requirements, notice requirements, and limitations on training content, applies to contracts signed after November 22, 2020.

Seyfarth’s People Analytics Team, will continue to monitor developments related to this Order and provide updates as they become available.  If you have any questions, please feel free to reach out to Annette Tyman (atyman@seyfarth.com), Christine Hendrickson (chendrickson@seyfarth.com), Sadé Tidwell (stidwell@seyfarth.com), or Mike Childers (mchilders@seyfarth.com).

 

 

[1] The Order defines race or sex stereotyping as “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”

[2] The Order defines race or sex scapegoating as “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 Order further states that race or sex scapegoating also includes claims that members of a certain sex or race are inherently inclined toward discrimination or oppression “consciously or unconsciously, by virtue of his or her race or sex.”