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President Trump recently signed Executive Order 13950, Combating Race
and Sex Stereotyping (the “EO”), which seeks to “combat offensive and
anti-American race and sex stereotyping and scapegoating,” and end “divisive
concepts” covered in some of these workplace trainings. The EO establishes
requirements aimed at “promoting unity in the Federal workforce,” by
prohibiting messages in workplace trainings that imply “an individual, by
virtue of their race or sex, is inherently racist, sexist or oppressive,
whether consciously or unconsciously.”
The EO covers
government contractors and certain grant recipients. The EO seeks to limit and
curtail the diversity and inclusion, sexual harassment, and related equal
employment opportunity training contractors and recipients are allowed to
provide their employees. The training restrictions in the EO appear to apply to
trainings for all employees of Government Contractors and their subcontractors,
regardless of whether those employees support a federal contract.
The Office of
Federal Contract Compliance Programs (“OFCCP”) has been designated to investigate
complaints and enforce the EO. In order to do this, the OFCCP has established a
hotline to field whistleblower complaints alleging that a Government Contractor
is utilizing prohibited training programs in violation of EO. The EO also
requires the OFCCP to publish in the Federal Register, no later than October
22, 2020, a request for information from Government Contractors and
subcontractors, as well as their employees. Those who violate the EO’s
requirements may be subject to contract suspension or termination, and the
contractor may be subject to suspension or debarment.
Government
Contractors should take into account that the EO applies specifically to
“training,” and not policies or other documents that employers may publish as
part of their diversity and inclusion efforts. If the EO is fully implemented,
its terms could trigger significant modifications to current diversity and
inclusion trainings. Employers that anticipate entering into new covered
federal contracts, and Government Contractors that will be renewing federal
contracts after November 21, 2020, should evaluate their diversity and
inclusion training programs in order to determine whether they are complying
with the new requirements under the EO.