President Trump Issues New Executive Order for Federal Contractors and Employers

On September 22, 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping (the “Executive Order”).The Executive Order applies to federal contractors and subcontractors, as well as organizations that receive federal grant monies.  The Executive Order purports to eliminate the promotion of “race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes.  In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

Among the conduct prohibited in the Executive Order is the promotion of “divisiveness” in the workplace, which includes the education or training in / on “Divisive concepts.”  The Executive Order defines “Divisive concepts” as including the following:

• One race or sex is inherently superior to another race or sex;
• the United States is fundamentally racist or sexist;
• 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 and 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;
• any individual should feel discomfort, guilt, anguish, or any other 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 notes that the “term ‘divisive concepts’ … includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.”  Race or sex scapegoating is expressly defined in the Executive Order to include “any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppressed others.”  It is these latter concepts – unconscious bias and implicit bias – that many organizations have incorporated in their Equity, Diversity and Inclusion training, and view as an absolute necessity from a “best practice” approach for effective ED&I training.

Among the additional obligations of the Executive Order, is a requirement directed to the Director of the OFCCP (Office of Federal Contractor Compliance Programs), to publish federal regulations within the next thirty (30) days to obtain information from Federal contractors and subcontractors that will include (i) an identification of “all training, workshops, or similar programming provided to employees;” (ii) “copies of any training, workshops, or similar programming having to do with diversity and inclusion”; and (iii) information on the duration, frequency and expense of such activities.  There is presently no explanation as to how or by when such information is going to be collected.

It is yet to be seen what litigation may be spurned by this new Executive Order (for example, many have already opined relative to possible First Amendment concerns among other issues), or how the Executive Order will impact Federal contractors’ and subcontractors’ equity, diversity and inclusion training.  Your Foley & Lardner L&E Team will continue to monitor for such developments, and is available to discuss the impacts of this Executive Order on your training programs.

It is important to note that the Executive Order, and its proposed elimination of unconscious and implicit bias training from ED&I programs, is not consistent with current best practice standards for employers not covered by the Executive Order, and the Executive Order appears to be inconsistent with most L&E attorneys’ and professional’s general counsel and advice that employers do incorporate anti-bias in their ED&I training.