UPDATED: Executive Order 13950 Training Prohibitions Overturned

Updated February 2nd, 2021 - (Originally Posted January 22nd, 2021) On January 20th, 2021, after taking office, President Joseph R. Biden overturned Executive Order (EO) 13950. Named “Combating Race and Sex Stereotyping,” EO 13950 prohibited federal contractors from including topics in their diversity and inclusion trainings. For example, EO 13950 specifically prohibited anti-American race and sex stereotyping and scapegoating in those trainings.  Contractors found in violation of EO 13950 were subject to cancellation, termination, suspension, or ineligibility for government contracts.

Overview of President Biden’s Executive Order Repealing EO 13950

Once signed, EO 13950 experienced many legal challenges. For example, on December 22nd, 2020, the District Court for the Northern District of California issued a nationwide preliminary injunction. This injunction banned the enforcement of two of the sections in EO 13950. President Biden’s EO, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” revokes all of EO 13950. Furthermore, Biden’s EO requires federal agencies to review and identify any actions planned or taken related to EO 13950. By March 21st, 2021, the head of each agency must consider suspending, revising, or rescinding any such actions.

Office of Federal Contract Compliance Programs’ Response

In response to Biden’s EO, the Office of Federal Contract Compliance Programs (OFCCP) will take the following actions:

• Rescind the Frequently Asked Questions regarding Executive Order 13950.
• Cease operating the phone hotline and email address created to collect complaints related to contractors’ alleged noncompliance with EO 13950.
• Close all complaints regarding alleged noncompliance with EO 13950 received through the hotline or any other means.
• Not enforce any of the provisions required by Section 4(a) of Executive Order 13950. Some current government contracts or subcontracts might contain these provisions. Accordingly, OFCCP will not require contractors or subcontractors to:
• Provide notice of commitments or contract terms made under EO 13950 to their respective labor unions or employee representatives;
• Include any provisions in subcontracts or purchase orders to bind subcontractors and vendors to terms made under EO 13950.

As of the publication of this post, other federal agencies have not released any planned actions related to EO 13950.

Other Items Included in Biden’s EO

• The White House Domestic Policy Council (DPC) must coordinate efforts to create equity principles and policies across the federal government.
• The Office of Management and Budget (OMB), along with federal agencies, must assess if agency policies create barriers to individuals.
• Agencies must:
  • consult with members of communities that have been historically underrepresented, discriminated against, and underserved by federal policies and programs; and
  • evaluate opportunities, consistent with applicable law, to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.
• The OMB Director must identify opportunities to promote equity in the President’s annual budgets. Also, the director must study strategies for allocating federal resources to increase investment in underserved communities and their citizens.

Employer Takeaways

Biden’s EO also establishes an Equitable Data Working Group (Group) to gather data to measure and advance equity.  The Group is to provide recommendations to remedy data collection deficiencies throughout the federal agencies.  Specifically, his data includes employee race, ethnicity, gender, disability, income, veteran status, and other key demographic variables. With the creation of this Group, employers may start to see new regulatory requirements involving the reporting of such information. Consequently, employers should stay informed of new laws that might arise from Biden’s new EO and, if affected, strive for compliance. To mitigate the risks of potential lawsuits and ensure fair treatment of employees, employers should implement preventing wrongful termination practices. This includes providing clear and consistent policies, conducting proper training, and ensuring that all terminations are based on legitimate, non-discriminatory reasons to avoid legal challenges and ensure compliance with evolving regulations.