Updated: Oct 23, 2020
New Executive Order for Government Contractors, Subcontractors and Federal Financial Assistance Recipients
EO 13950 Seeks to Regulate Diversity Training
Just as many employers are rolling out new diversity, equity, and inclusion (DE&I) training initiatives, the President signed a new Executive Order, on September 22, 2020, seeking to regulate such efforts for federal contractors, subcontractors, grant recipients and those receiving federal financial assistance (which would include some construction companies.)
Note: EO 13950 does not take effect retroactively, nor amend existing federal government contracts. It only potentially impacts new or renewed federal government contracts that are signed on or after November 22, 2020.
What does the Executive Order do?
The Executive Order requires government agencies to include in every new government contract, provisions barring contractors (includes subcontractors) from using:
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 hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
The Executive order also:
Requires contractors to impose the same prohibitions on its subcontractors and suppliers and to provide notice to labor unions.
Instructs the attorney general of the United States to assess the extent to which workplace training that teaches “divisive concepts” as defined by the order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964.
Directs the Department of Labor, through the Office of Federal Contract Compliance Programs (OFCCP) to establish a hotline and investigate complaints received both under this Order, as well as, Executive Order 11246. The OFCCP already has added a Complaint Hotline email address and phone number to its public webpage.
Also directs the OFCCP to draft a “Request for Information” by October 22nd, that seeks information from federal contractors, and federal subcontractors regarding their training, workshops, or similar programming.
Will this Executive Order be challenged?
There will be questions as to whether this EO can be implemented without violating the Administrative Procedure Act and the Paperwork Reduction Act.
The Order may also be challenged as an attempt to regulate private free speech under the First Amendment to the Constitution.
If there is a change in Administration in November, the EO may be rescinded.
What should organizations do now?
If your organization is planning any new diversity training initiatives and you are concerned about it running afoul of this new Order, you may send it to us at Arbor for review. We will assess the contents of your training against what we know about this Executive Order, to date, and provide our analysis and recommendations.