Executive Order Restricts Diversity Training

---

On September 22, 2020, the White House issued Executive Order 13950, “Combating Race and Sex Stereotyping.” The sweeping Executive Order states, “it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating” through workforce training.

The Executive Order addresses training for the military, federal employees, grant recipients, and federal contractors. It could have a significant impact on federal contractor training programs.

The Executive Order requires that federal contracts include provisions that

• Prohibit “any workplace training that inculcates in its employees any form of race or sex-stereotyping or any form of race or sex scapegoating”
• Require that contractors provide notice to their labor unions of commitments under the Executive Order and also post the notice in conspicuous places available to employees and applicants for employment
• Recognize that noncompliance could result in loss of contract and debarment, and
• Flow-down these provisions to subcontracts.

The U.S. Department of Labor’s Office of Federal Contract Compliance Program (OFCCP) is directed to establish a hotline and investigate complaints. OFCCP has already posted FAQs to address some of the questions arising out of the Executive Order, including what constitutes race and sex stereotyping and scapegoating, and what are examples of race and sex stereotyping and scapegoating. Link to OFCCP’s FAQ; https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950

OFCCP published a Request for Information on October 22, 2020, to gather information from federal contractors, subcontractors, and employees (https://www.federalregister.gov/documents/2020/10/22/2020-23339/request-for-information-race-and-sex-stereotyping-and-scapegoating). The White House has indicated, however, that it plans to deviate from standard rulemaking and implement the Executive Order by November 21 without a public comment period.

It is unclear how this Executive Order will apply to state and local contracts that result from federal grants. Agencies are directed to “identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts.”

It is also not clear if this will be automatically applied to existing contracts or if contract clauses will be applied. Additional information will become available by November 21. You can review the Executive Order at https://www.federalregister.gov/documents/2020/09/28/2020-21534/combating-race-and-sex-stereotyping

We will provide more information as it becomes available.