On September 22, 2020, President Trump issued an Executive Order entitled “Combating Race and Sex Stereotyping” to battle what he calls “offensive and anti-American race and sex stereotyping and scapegoating.” The Executive Order states that instructors and materials teaching that men and members of certain races, as well as the country’s most venerable institutions, that are inherently sexist and racist, are appearing in workplace diversity trainings across the country, including training by government contractors. The Executive Order restricts the content of diversity training that government contractors will be able to provide to their employees.
The Executive Order
The Executive Order was issued in response to what the Executive Order describes as destructive ideology that uses “discredited notions” that the Federal Government was made on the white basis by white men, for the benefit of white men. The Executive Order directs federal agencies to include in their government contracts (except those contracts exempt from Executive Order 11246) a clause that prohibits contractors, during contract performance, from using any workplace training that “inculcates” (i.e., instills through persistent instruction) in their employees any form of race or sex stereotyping or any form of race or sex scapegoating. The Executive Order defines race or sex stereotyping as 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. It defines race or sex scapegoating as assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.
Specifically, contractor training will not be able to include the concepts that:
- One race or sex is inherently superior to another race or sex;
- An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
- An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
- Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
- An individual’s moral character is necessarily determined by his or her race or sex;
- 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;
- Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
- Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
In addition, contractors must send to each labor union or representative of workers with which they have a collective bargaining agreement or other contract or understanding, a notice, to be provided by the contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order. Contractors also have to post copies of the notice in conspicuous places available to employees and applicants for employment. Contractors who fails to comply may have their contracts canceled, terminated or suspended, and the contractor may be declared ineligible for further government contracts.
Government contractors are permitted to promote racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of the Executive Order. The Executive Order states that contractors should continue to foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics as training employees to create an inclusive workplace is appropriate and beneficial.
The Executive Order directs the Office of Federal Contract Compliance Programs (OFCCP) to establish a hotline and to investigate complaints alleging that a government contractor is utilizing prohibited training programs. OFCCP, by October 22, 2020 also is supposed to publish in the Federal Register a request for information seeking information from government contractors, subcontractors, and their employees regarding the training, workshops, or similar programming provided to employees regarding diversity and inclusion.
In addition, the Executive Order directs the heads of all agencies to review their respective grant programs and 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 prohibited concepts specified in the Executive Order. The agency heads have to submit a report to the Office of Management and Budget a list of the identified grant programs by November 21, 2020.
While the Executive Order was effective as of September 22, 2020, the requirements for government contractors only apply to contracts entered into 60 days after September 22, 2020.