On September 22, 2020, the Trump administration issued Executive Order 13950 (the Order) prohibiting workplace training that involves “sex stereotyping” or “scapegoating.”  The Order is applicable to federal employees, the military, and private entities that receive grants or federal government contracts. While there is much we do not know about the implications of the Order, this client alert examines the U.S. Department of Labor’s (DOL) limited guidance, issued yesterday, which sheds some light on the Order’s requirements and its implications for government contractors who violate the Order.

The Order requires federal government contracts to include the requirements as of November 21, 2020. When applied, the provisions must be flowed down to subcontractors. There is no exception for contracts under the simplified acquisition threshold or for commercial off-the-shelf items. Additionally, DOL’s Office of Federal Contract Compliance Programs (OFCCP) will be issuing Requests for Information by October 22, 2020. The Request for Information will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of the Order.

Prohibited training includes any component that ascribes “character traits, values, moral and ethical codes, privileges, status, or beliefs to an entire race or sex, or to individuals because of their race or sex” or “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 encompasses any claim that, consciously or unconsciously, and by virtue of their 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.”

The following examples are provided by the Order and included in the DOL guidance:

  • 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.

Many employers have worked hard in recent years to respond to federal, state, and local requirements to implement a diversity training program and now wonder what parts of those trainings could conflict with the Order. It is important to note, that training is not prohibited by the Order. The Order emphasized that training, as well as implicit bias training, continues to be permissible if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive so long as it does not speak to one race or gender, specifically.

Complaints received by the OFCCP will be processed in accordance with the OFCCP’s normal investigation protocols. Contractors found in violation may have their contracts canceled, terminated, or suspended and may be referred for debarment.

Implementation of the Order is in its infancy and should the administration change in January 2021, this Order is likely to be revoked. The Order also may face legal challenges. However, given how quickly the OFCCP is being required to solicit information, now is a good time to examine the training programs and resources available to your workforce to determine whether there is any concerning material. Once the OFCCP has the data, it is likely that it will be evaluated not only for compliance with this Order, but its other regulations regarding equal opportunity and affirmative action in the workplace.

PilieroMazza’s Labor and Employment attorneys offer a variety of training programs, and due to remote work requirements, can offer these programs to your workforce in the form of virtual presentations. If you need assistance implementing a training program, please contact a member of the team.