Trump Issues Executive Order on Combating Race and Sex Stereotyping

On September 23^rd, 2020, the White House released Executive Order (EO) 13950. Signed the day prior, the EO (“Combating Race and Sex Stereotyping”) covers government contractors and certain grant recipients. The legislation limits diversity, inclusion, sexual harassment, and related equal employment opportunity (EEO) training that contractors provide to employees. This EO comes a little over a month after President Donald J. Trump signed four COVID-19 related EO’s into effect.

Overview of Executive Order 13950

As mentioned, EO 13950 covers all federal contractors and subcontractors. According to the National Law Review, the order requires contracting agencies to insert a clause in any new contracts (beginning November 21^st, 2020) for training purposes. This clause requires that workplace training does not “inculcate[s] in its employees” with any form of race or sex stereotyping or any form of race or sex “scapegoating.” Examples of this stereotyping includes that:

• One race or sex is inherently superior to another race or sex;
• An individual is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
• An individual should discriminate against another or give adverse treatment because of their race or sex
• Members of one race or sex should not attempt to treat others without respect to race or sex;
• An individual’s moral character is necessarily determined by their race or sex;
• An individual bears responsibility for actions committed in the past by other members of the same race or sex;
• Any individual should feel discomfort or any other form of psychological distress on account of their race or sex; or
• Traits such as a hard work ethic are racist or sexist, created to oppress specific races.

Notice Requirements and Enforcement

EO 13950 also requires that contractors and subcontractors post a notice (provided by contracting agencies), directed to employees and applicants. This notice would dictate the contractor’s commitments under the EO. Any labor union with which the contractor has a collective bargaining agreement must also receive the notice. The Office of Federal Contract Compliance Programs (OFCCP), which would be the enforcement agency for these new requirements, will publish a request for information (RFI) by October 22^nd, 2020.  The RFI would seek information from federal contractors and subcontractors regarding any related training provided to employees. The EO, however, does not discuss what the OFCCP needs to do once it collects the information.

Employer Takeaways

If EO 13950 is fully implemented, it would mean significant changes in the content of race and sex training. Many of these topics, including diversity, inclusion, etc. have become common training subjects for many employers. In fact, some federal or state laws require some of the subject matter that has been “banned” in the EO. Due to that, legal challenges to this Executive Order are likely. Affected employers need to stay informed over the next couple of months for any changes to the status or content of Executive Order 13950 and adjust their training programs accordingly.