Executive Order Prohibits Federal Contractors and Grantees From Using Many Forms of Diversity and Implicit Bias Training

On September 22, 2020, President Trump issued an Executive Order Combatting Race and Sex Stereotyping that will prohibit federal contractors and grantees from engaging in many forms of diversity, inclusion, and implicit bias training that have gained popularity in recent months. 

The new Executive Order announces a federal policy “not to promote race or sex stereotyping or scapegoating” and not to permit contractors to “inculcate such views in their employees.”  To that end, the order requires agencies to include in most new federal government contracts a clause prohibiting contractors from using any workplace training program that includes the concepts that:

• 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 or 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;

• An individual should feel discomfort, guilt, anguish, or any 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.

The Executive Order also prohibits trainings that “assign[] fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”  These prohibitions follow a previous Executive Order prohibiting similar trainings by federal agencies.

Contractors are required to post a notice with the substance of the Executive Order in a conspicuous place in the workplace, and include the Executive Order’s prohibitions in any subcontracts.  The Office of Federal Contract Compliance Programs (OFCCP) is directed to establish a hotline and investigate complaints of prohibited training programs.  As sanctions for noncompliance, the Executive Order requires agencies to consider such drastic measures as terminating, suspending, or canceling contracts, or even debarring contractors.  The Executive Order does provide that it does not prevent contractors from promoting racial, cultural, or ethnic diversity and inclusiveness in a manner consistent with the Order.

The Executive Order appears to target diversity and inclusion training programs like the popular White Fragility that focus on concepts of implicit bias.  These trainings have gained prominence in the wake of the George Floyd shooting earlier this year.  New federal contracts or grants would prohibit contractors from implementing these types of efforts with severe consequences.  It is anticipated that the constitutionality and validity of the Executive Order will be challenged in litigation.  Federal contractors and grantees should keep close track of these developments due to the heavy potential penalties for noncompliance.