Trump Issues Executive Order Impacting DEI Training
Last week, President Trump signed an Executive Order entitled “Executive Order on Combating Race and Sex Stereotyping” (the “Order”), which impacts federal agencies, federal contractors, and federal grantees. Specifically, the order prohibits federal contractors from using “any workplace training that inculcates in its employees any form of race or sex stereotyping . . . or scapegoating”. “Race or sex stereotyping” includes “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs” to a particular race or sex, or to an individual based on their race or sex. “Race or sex scapegoating” means “assigning fault, blame, or bias to a race or sex”, or their members, because of their race or sex. This term also includes statements that individuals by virtue of their sex or race are consciously or unconsciously inherently sexist, racist, or inclined to oppress others.
The Order details specific “divisive concepts” that are prohibited:
That one race or sex is inherently superior to another;
That the United States is fundamentally racist or sexist;
That an individual is inherently racist, sexist, or oppressive, whether consciously or unconsciously, due to the individual’s race or sex;
That an individual should be discriminated against or receive adverse treatment solely or partially due to race or sex;
That members of one sex or race cannot and should not attempt to treat others without respect to sex or race;
That an individual’s moral character is determined by the individual’s race or sex;
That an individual bears responsibility for actions committed in the past by other members of the same race or sex by virtue of the individual’s race or sex;
That any individual should feel guilt, discomfort, anguish, or psychological distress because of his or her race or sex; or
That meritocracy or hard work ethic are racist or sexist or created to oppress another race.
As part of Diversity, Equity, and Inclusion (DEI) Initiatives, some employers have facilitated training programs related to unconscious bias or systemic racism. This Order seemingly prohibits contractors from continuing to participate in or host such training, by asserting that contractors who do not comply with this prohibition risk having their contract canceled, terminated, or suspended in whole or in part, and also may be declared ineligible for future government contracts. Contractors must include language from the Order in their subcontracts and purchase orders. Contractors must also post a notice about the Order in their workplaces and provide the same to any labor unions with whom the contractor has a collective bargaining agreement. Although other portions of the Order go into effect immediately, these provisions apply only to contracts entered into 60 days after the date of the Order. The Order states that it does not prevent contractors from engaging in DEI efforts, provided such efforts are consistent with the requirements of the Order.
The Office of Federal Contract Compliance Programs (OFCCP) will publish a request for information from federal contractors, subcontractors, and their employees, seeking copies of any diversity training, as well as related information. OFCCP will also establish a hotline to investigate complaints that contractors are using trainings in violation of the Order.
Certain federal grantees will be prohibited from using federal funds to “promote the concepts” set forth in the bullets above. A list of potentially impacted grantees is to be submitted by the heads of federal agencies to the Office of Management and Budget within 60 days of the Order.
Most relevantly for all employers, the Order directs the Attorney General to assess the extent to which workplace training that “teaches the divisive concepts” described above may contribute to a hostile work environment and give rise to potential liability under Title VII. The Order states that, if appropriate, the Attorney General and EEOC should issue guidance to assist employers in better promoting diverse and inclusive workplaces.
Many employers are in the process of conducting training to satisfy various state and local training requirements. Government contractors and federal grantees may consider whether a review of such training is advisable in light of this Order. Employers who have questions about the Executive Order should contact Kristina Grimshaw at kgrimshaw@fglawllc.com, or any other attorney at the firm.
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