On September 22, 2020, President Trump issued an executive order with respect to diversity training provided to government employees; employees of government contractors, subcontractors, and suppliers; and possibly recipients of federal grants. According to the language of the order, it is intended to, among other things, “promote unity in the Federal workforce, and to combat offensive and anti-American race and sexual stereotyping and scapegoating.”
The order prohibits workplace training that “inculcates in [the] employees” any form of race or sex stereotyping or any form of race or sex scapegoating, including 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.
(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” is defined to mean 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. The term “race or sex scapegoating” is defined to mean 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 requires all government contracts to contain a provision requiring the contractor to agree to comply with the provisions of the order. Government contractors are required to send a notice to any labor organization with which they have a collective bargaining agreement advising the labor organization of the contractor’s commitments under the order. Government contractors are also required to post copies of the notice in conspicuous places available to employees and applicants for employment. Certain provisions of the order must also be included in contracts with subcontractors and vendors in a fashion that binds any subcontractor or vendor. Any contractor or subcontractor found to have violated the order may have its contract canceled or be disbarred from federal contracts.
Under the order, the Office of Federal Contract Compliance Programs (OFCCP) is to establish a hotline to accept complaints about federal contractors utilizing training programs that violate the order, to investigate those complaints, and to “take appropriate enforcement action and provide remedial relief, as appropriate.” The director of OFCCP is also to publish in the Federal Register a request for information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees, including requesting copies of the materials used in such programs having to do with diversity and inclusion as well as information concerning the duration, frequency, and expense of such programs. Federal contractors, subcontractors, and grant recipients should be mindful of the provisions of the order establishing the hotline and requiring affirmative acts to investigate and insure compliance by OFCCP, agency inspector generals, and political appointees.
The order (Section 5) requires that the heads of all agencies review their respective grant programs and identify programs for which the agency may, as a condition of receiving a grant, require the recipient to certify it will not use federal funds in violation of the terms of the order and to identify those programs to the director of the Office of Management and Budget. The order contains no guidance or criteria for the review of federal grants.
All provisions of the order are effective immediately with the exception of the those parts of the order (Section 4) that require the insertion of specific language in contracts and subcontracts. That portion of the order is effective 60 days following the issuance of the order.
No guidance beyond the order has been provided by any agency. However, the order requires active monitoring at the agency level, including monitoring for compliance by the inspector general for each agency and assignment of at least one senior political appointee to assure compliance with the order.
Challenges to the order are expected. None have been filed as of the date of this alert.
If you have any questions regarding the content of this alert, please contact Alan Peterman, partner, at apeterman@barclaydamon.com, Michael Murphy, partner, at mjmurphy@barclaydamon.com, or another member of the Labor & Employment Practice Area.