Update: On December 22, 2020, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction banning the enforcement of Executive Order 13950.

On September 22, 2020, the White House released a new executive order, On Combating Race and Sex Stereotyping.  Among other things, the order instructs government contracting agencies to add provisions to government contracts prohibiting the use of any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”  The executive order lists a number of prohibited concepts—most of which are not commonly emphasized in workplace diversity training programs but some of which are at least related to concepts of implicit bias or the history of systemic racism—that may be included in such programs.  

The Purpose of the Executive Order

The order begins with an 1,100-word statement of purpose which references the Declaration of Independence, the battlefield of Gettysburg, the Montgomery bus boycott, and “the heroic black soldiers of the 54th Massachusetts Infantry Regiment.”  It then contrasts these events with “a different vision of America . . . many people are pushing” that:

[I]s grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

The order cites a number of statements excerpted from training or other materials used by several federal entities and describes the statements as perpetuating racial stereotypes and division and using subtle coercive pressure to ensure conformity of viewpoint. It further states, “[s]uch ideas may be fashionable in the academy, but they have no place in programs and activities supported by Federal taxpayer dollars. Research also suggests that blame-focused diversity training reinforces biases and decreases opportunities for minorities.”

Application of the Executive Order to Government Contractors

The executive order requires government agencies to include in every new government contract, provisions barring the contractor from using:

[A]ny workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the 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; or (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 language of the order is very broad.  It seems possible—but not at all certain—that some elements of some diversity training programs could be interpreted as falling within these prohibited categories. The order also requires contractors to impose the same prohibition on its subcontractors and suppliers and to provide notices to labor unions regarding the employer’s commitments under the executive order.

The executive order provides that government agencies begin to include the new contract clauses in contracts entered into 60 days after the date of the executive order.  However, it is not clear that the regulatory prerequisites for implementing this directive are able to be satisfied within this time period. 

Based on the language of the executive order, it appears that its requirements will not apply by operation of law but only apply to an employer upon entering into a contract that includes the relevant provisions.  Therefore, it seems likely that existing federal contractors and subcontractors will not be subject to the new requirements unless they enter into a new or amended contact.

Application of the Executive Order to Grant Recipients

The executive order also requires federal agencies to review grant programs and identify programs for which the agency may, as a condition of receiving a grant, require the recipient to certify that it will not use federal funds:

[T]o promote the 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; or (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.

Title VII

The executive order also instructs the attorney general of the United States to assess the extent to which workplace training that teaches “divisive concepts” as defined by the order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964.

What Next?

Talking about race in America is hard and it has been a struggle for employers and employees to come up with constructive ways to discuss difficult and important issues.  To the extent that the order seeks to limit discussion of what are often complex and nuanced concepts, employers will want to review the order closely, cognizant of their obligations under federal and state equal employment opportunity laws to provide a workplace free of unlawful discrimination and harassment.  Employers subject to the order will likewise want to ensure that their diversity and inclusion initiatives address in a well-rounded way those issues that their employees, their owners or shareholders, and their customers believe to be of importance. 

Whether this executive order can be implemented consistent with the requirements of the Administrative Procedure Act and the Paperwork Reduction Act—two laws that govern the creation of executive agency rules and the imposition of information collection procedures—is likely to become an issue.  Likewise, the order may be interpreted as an attempt to regulate private speech that is subject to challenge under the First Amendment to the United States Constitution, and may well face legal challenge.  Littler’s WPI will continue to monitor this issue and report on any significant developments.