Could Your Diversity & Inclusion Training Programs Land You in Hot Water?–Five Things Employers Need to Know About Executive Order 13950

On September 22, 2020, President Trump issued Executive Order 13950, Combating Race and Sex Stereotyping. The Order is remarkable not because it imposes on federal contractors obligations with respect to diversity (this is nothing new), but because of the nature of the obligations it imposes—to refrain from conducting diversity and inclusion training on certain “divisive concepts.” Those concepts include “inculcating” employees in “any form of race or sex stereotyping or any form of race or sex scapegoating.”

EO 13950 has left many employers puzzled since its issuance because it runs counter to almost all of the regulatory action undertaken by the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) since its founding over forty years ago. The OFCCP is responsible for ensuring that employers doing business with the federal government comply with the laws and regulations regarding employment non-discrimination, so employers have grown accustomed to OFCCP regulatory action meaning more—not less—aggressive action with respect to diversity and inclusion. EO 13950 stands this tradition on its head.

Though much remains unknown about EO 13950—there are no implementing regulations, at least not yet, here are five things employers need to know about the Order now:

  1. EO 13950 applies to federal contractors and only to federal contracts awarded after November 21, 2020, but it also may impact non-contractor employers.

Although coverage may be clarified in the future, for now, the Order appears to apply to almost all federal contracts awarded after November 21, 2020. And the Order’s requirements with respect to diversity and inclusion training will be mandatory flowdown provisions for all subcontracts at every tier.

While the Order by its language only applies directly to federal contractors, it requires the U.S. Attorney General to “assess the extent to which workplace training that teaches the divisive concepts … may contribute to a hostile work environment and give rise to potential liablity under Title VII ….” What this means in practice remains to be seen, but the Order seems to suggest that an employer’s requiring diversity and inclusion training that includes topics such as white privilege, systemic racism, and critical race theory may give rise to actionable claims of discrimination for those who are “scapegoated” in such training.

  1. EO 13950 prohibits federal contractors from using workplace training that “inculcates” any form of “race or sex stereotyping” or “race or sex scapegoating.”

The 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” and encompasses “any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex or inherently sexist or inclined to oppress others.”

In short, the Order by its plain terms appears to restrict federal contractors from training employees on many diversity-and-inclusion-related topics, such as sex- and race-based privilege, that have become relatively commonplace.

Though the limits of the Order’s training prohibitions are fairly amorphous, it does contain a list of specific training concepts that are off limits for federal contractors:

(1) that one race or sex is inherently superior to another race or sex;

(2) that an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

(3) that an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;

(4) that members of one race or sex cannot and should not attempt to treat others without respect to race or sex;

(5) that an individual’s moral character is necessarily determined by his or her race or sex;

(6) that 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;

(7) that an individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex;

(8) that meritocracy or traits such as hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

  1. In informal guidance, the OFCCP has stated that EO 13950 does not prohibit all forms of unconscious and implicit bias training.

In an attempt to clarify the limits of the Order’s training prohibition, the OFCCP has stated in an FAQ that unconscious or implicit bias training is prohibited only to the extent it teaches or implies that “an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.” But such training is permissible “if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.”

While the OFCCP’s clarification is, perhaps, more descriptive than actual language of EO 13950, it is far from clear. What seems to be a reasonable conclusion that can be drawn from the Order’s language and the OFCCP’s FAQ is that the Order prohibits what most human resources and diversity and inclusion professionals would consider “standard” modules commonly included in unconscious and implicit bias training programs.

For example, it appears permissible under the Order to train employees on the concept of implicit bias generally—i.e., that all of us, as humans, have attitudes or ascribe to stereotypes that affect our understanding, actions, and decisions in an unconscious manner. But the Order appears to prohibit training on any link between such implicit bias and sex or race. So it would be improper to train under the Order that White employees may, unconsciously, make employment decisions or take employment actions that favor other White employees, or disfavor non-White employees.

  1. The OFCCP has already taken steps to prepare for the implementation of EO 13950.

Only about a month has passed since the issuance of EO 13950. But in that time the OFCCP has already taken actions toward full implementation of the Order:

  • Shortly after the issuance of the Order, the OFCCP released the FAQ mentioned above that covers very basic questions about the Order. Significantly, the FAQ explains that the OFCCP may immediately begin investigating “claims of sex and race stereotyping” based on its power under Executive Order 11246.
  • The OFCCP has established a webpage for EO 13950 that includes a hotline that can be used to submit complaints of “race and sex stereotyping and scapegoating.”
  • The OFCCP issued a request for information that seeks, among other things, examples of trainings that include concepts prohibited by the Order. In statements about the request for information, the OFCCP has indicated that it anticipates that employees will submit copies of training materials that are believed to incorporate prohibited concepts.
  1. EO 13950’s fate likely will be determined by the upcoming presidential election.

Notably, the Order’s training prohibitions are to be included in federal contracts entered after November 21, 2020—several weeks after Election Day 2020. And it seems likely that election will determine the Order’s lifespan. If President Trump is reelected, the Order likely will remain in place and steps toward full implementation will continue uninterrupted. But if Vice President Biden is elected, it seems exceedingly unlikely that the Order will survive more than a few months. A President Biden would almost certainly revoke the Order as one of his first acts after Inauguration Day in January 2021.

Employers also should keep in mind that court challenges of executive actions such as EO 13950 have become common, and it is possible that in the near future (likely sometime shortly after November 21, 2020, if at all) a court could enjoin the Order, stopping it from becoming effective, at least temporarily.

The Bottom Line for Employers

At current, the likely fate of Executive Order 13950 is as unclear as its requirements. Even so, if the Order becomes effective, it could require wholesale overhaul of diversity and inclusion training programs currently used by federal contractors across the country. And while it seems less likely, it is possible that the Order will impact non-contractor employers as well. All employers should therefore keep abreast of Order-related developments, both those that further clarify the meaning and effect of the Order and any that provide a better indication as to whether the Order’s provisions will become, and stay, effective after November 2020.