UPDATE: As of January 20, 2021, Executive Order 13950 has been rescinded by President Joe Biden.

President Trump has issued an Executive Order entitled “Combating Race and Sex Stereotyping.” The Executive Order is dated September 22, 2020, and is available on the White House website and in the Federal Register.

The intended purpose of the Executive Order is to prevent any form of race and/or sex stereotyping that may be committed by government agencies or federal contractors. However, the effect of the Executive Order will be to limit the ability of those affected by the order to provide training on systemic racism and/or unconscious bias. There are also likely to be limitations on various forms of diversity and inclusion training.

Impact on Federal Contractors and Subcontractors

There are various sections of the Executive Order that specifically impact federal contractors and subcontractors. Government agencies issuing contracts are required to include new provisions that restrict the type of training that may be provided by employers. The Executive Order states that:

“The [federal] contractor shall not use any 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.”

Executive Order on Combating Race and Sex Stereotyping, Section 4(a)1.

Federal contractors and subcontractors are required to notify their unions of the provisions of this Executive Order. They must also post a notice and make it available to applicants and employees about the Executive Order.

If an employer violates this Executive order, the relevant contract “may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts.”

OFCCP Ordered to Establish Hotline and Collect Training Materials on Diversity and Inclusion

The Office of Federal Contract Compliance Programs has been specifically ordered to take two actions in regard to this Executive Order. First, the agency has been ordered to establish a hotline and “investigate complaints received under both this order as well as Executive Order 11246 alleging that a Federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders.”

Second, and much more problematic, is a requirement that OFCCP is seeking copies of training provided by federal contractors and subcontractors on diversity and inclusion. This request would ask for:

“Copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities”

Executive Order on Combating Race and Sex Stereotyping, Section 4(c).

OFCCP has been ordered to publish a notice in the Federal Register by October 21, 2020, seeking the training materials described above.

Issues with Executive Order on Combating Race and Sex Stereotyping

We expect there will be multiple issues associated with the new Executive Order. Employers are likely to express concerns about how this Executive Order may impact their rights to free speech. Federal contractors and subcontractors will question how and when this Executive Order will go into effect. OFCCP will likely be required to request public comment on any collection of information it intends to do to effectuate this Executive Order. This especially applies to the collection of any training materials.

We will monitor the situation regarding this Executive Order and provide updates on our news page as more information becomes available.

This post has been slightly modified to add a link to the PDF version of the Executive Order and to reflect the fact the Executive Order is now available on the Federal Register.