KMK Law Management Rights Blog

On September 22, 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping that prohibits federal contractors and grantees from engaging in many forms of diversity, inclusion, and implicit bias training. 

The Order requires that government agencies to include in every new government contract, provisions barring the contractor from using workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including concepts that:

1. one race or sex is inherently superior to another race or sex;
2. an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
3. an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
4. members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
5. an individual’s moral character is necessarily determined by his or her race or sex;
6. 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;
7. any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
8. 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 training that “assign[s] fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”  Specific anecdotal examples of training targeted by the Order include:

• Training materials from Argonne National Laboratories, a Federal entity, stated that racism “is interwoven into every fabric of America” and described statements like “color blindness” and the “meritocracy” as “actions of bias.”
• Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other.
• A Smithsonian Institution museum graphic recently claimed that concepts like “[o]bjective, rational linear thinking,” “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” The museum also stated that “[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.”

The Order also applies to federal grant programs and may require recipients to certify that they will not use federal funds for restricted forms of training.  In addition, the Order instructs the attorney general to assess the extent to which workplace training that teaches divisive concepts may contribute to a hostile work environment under Title VII. 

The Order becomes effective in 60 days and includes a notice posting requirement for contractors.  The Office of Federal Contract Compliance Programs (OFCCP) is directed to establish a hotline and investigate complaints of prohibited training.  Potential sanctions for violations include terminating, suspending, or canceling contracts, or debarring contractors.  The Order does not prevent contractors from promoting racial, cultural, or ethnic diversity and inclusiveness in a manner consistent with the Order.

The Order is certain to be the subject of legal challenges on multiple bases.  For now, businesses with government contracts should closely monitor the situation.

For assistance with training issues, contact any member of our Labor & Employment Group for further assistance.