In a previous blog, we discussed Executive Order 13950, Combating Race and Sex Stereotyping. The EO directed federal agencies, starting on November 21, 2020, to include a clause in their contracts that prohibits contractors, during contract performance, from conducting any workplace training that “inculcates” in their employees any form of race or sex stereotyping or scapegoating. Certain contracts exempt from Executive Order 11246 do not fall under this new EO. Under EO 13950, government contractors who have the clause in their contracts and who provide training prohibited by the Executive Order could be subject to debarment.

Response to the Executive Order

The new Executive Order has generated both criticism and support. Some critics argue that it restricts government contractors’ ability to promote diversity and inclusion in their workforces and may violate freedom of speech protections. Some supporters of EO 13950, on the other hand, argue that the prohibited training, such as the Critical Race Theory, is divisive and racist and should not be taught by government contractors.

Class Action Lawsuit

On October 29, 2020, the National Urban League and the National Fair Housing Alliance, who are represented by the NAACP Legal Defense and Educational Fund, Inc., filed a class action lawsuit against President Trump, the Secretary of Labor, and the Department of Labor seeking to enjoin implementation of the new Executive Order. The plaintiffs, among other things, allege that EO 13950 prevents them from effectively addressing the persistent harms, privileges, and disadvantages associated with systemic discrimination and implicit biases in violation of the First Amendment’s right to free speech. They also allege that the Executive Order is unlawfully vague and violates the equal protection clause of the Fifth Amendment.

The Complaint seeks a declaratory judgment that the Executive Order is unlawful and invalid and a permanent injunction enjoining the implementation of the Executive Order. Unless and until the Executive Order is enjoined, government contractors and subcontractors should prepare for its implementation.