President Trump’s recent Executive Order 13950 (the EO) seeks to prohibit the federal agencies and federal contractors from using employee trainings that “promote race or sex stereotyping or scapegoating” or use “divisive concepts.” There has been a lot of discussion about the EO, both from its challengers and its proponents, especially because many of you have recently stepped up focus on inclusion, diversity, equality, racism, and injustice in light of recent events such as the deaths of George Floyd and Breonna Taylor. Our intent here is to provide you with information so you can make the best decisions for your organizations as they relate to the EO.
First, let’s recap the basics of the EO. It offers the following definitions of the prohibited training topics:
- “Race or sex stereotyping” means 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.
- “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. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.
- “Divisive concepts” means the 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. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.
The future of this EO is uncertain. If a new administration takes over in January, this EO is highly likely to be rescinded. Additionally, there may be legal challenges, which may impact the ability of the Office of Federal Contract Compliance Programs (OFCCP) to enforce the EO. However, parts of the EO are effective immediately, and the OFCCP has already set up a hotline for complaints. The OFCCP has been tasked to investigate every complaint and part of the EO states that a Notice in the Federal Register will request copies of contractor training programs. We assume the request for copies of training programs will be voluntary, but it is unknown for sure at this time. With so many unknowns, many of you may want to wait until further regulatory and legal developments take place before fully complying with this EO. The penalties for non-compliance could be anything from a Notice of Violation to loss of government contracts or debarment to monetary penalties (financial remedies to those determined to have been in a training that constituted a “hostile work environment”).
Federal contractors, entering into or renewing contracts on or after November 22, 2020, may want to decide to do the following:
- First, consult your organization’s legal counsel before you make changes to your programs.
- Consider eliminating, for now, parts of your training programs that could be construed as including one or more of the nine specific “divisive concepts” that are prohibited. Talk to your trainers to make sure they understand what is allowed and not allowed. The EO does say, “Training employees to create an inclusive workplace is appropriate and beneficial,” so you do not have to stop D&I and/or EEO training. Letting employees know your organization strives for equal opportunity and inclusion, and will not tolerate discrimination, is essential.
- Provide the “Notice” to all employees, applicants and unions and post it on the company bulletin board and intranet (this “Notice” has yet to be provided by the government).
- Include a new clause (EO 13950 Sec. 4(a) paragraphs 1-4) in every purchase order and contract. It isn’t known if you can include the language by reference, so for now you would need to include all four paragraphs verbatim.
- Be prepared, if you had trainings like those now prohibited, to be investigated by the OFCCP. Decide if you want to provide your training materials to the OFCCP (most of our clients will probably NOT be doing this unless it is mandatory).
If you would like us to take a look at your D&I and/or EEO training, please let us know and we would be happy to do so. We also provide AA/EEO training that meets the requirements of EO 13950. Please contact your Maly Consultant for more information.