Executive Order Puts Federal Contractors and Grant Recipients on Notice: End "Divisive" Diversity Training or Risk Being Barred from Doing Business with the Federal Government
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On September 22, 2020, President Trump issued an Executive Order On Combating Race and Sex Stereotyping.  This order expanded a ban on “un-American” racial sensitivity training at federal agencies to now include all federal contractors and grant recipients. 

The executive order prohibits federal contractors and grant recipients from engaging in training that “inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”  This executive order follows the September 4, 2020 memo from the White House’s Office of Management and Budget, which directed federal workplaces no longer to conduct “divisive, anti-American propaganda training” where workers are told that “virtually all White people contribute to racism” or where they are required to say that they “benefit from racism.”  Such training will no longer be allowed because it focuses on race theory and white privilege.  While the executive order does not ban all diversity or racial sensitivity training outright, it does preclude training that promotes any of the following concepts:

  • that one race or sex is inherently superior to another race or sex;
  • that an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • that an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • that members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • that an individual’s moral character is necessarily determined by his or her race or sex;
  • that 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;
  • that any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • that meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

Federal agencies and contractors are also forbidden by the order from promoting the concept that “the United States is inherently racist or sexist.”

The executive order requires that a new clause be included in all government contracts that expressly precludes the contractor from engaging in workplace diversity or sensitivity training that promotes any of the “divisive concepts” listed above.  The stakes are high for federal contractors and grant recipients because those violating the executive order may be barred from further doing business with the U.S. government.  Furthermore, the executive order calls for DOL to establish a hotline and investigate complaints.

Federal contractors and grant recipients should proceed with caution in conducting diversity or sensitivity training to ensure such training does not implicate the executive order.  Given that the line of demarcation as to exactly what is permissible diversity or sensitivity training is less than clear (for example, is training that promotes the concept that all or most people carry some implicit biases banned under the executive order?), it would be prudent for federal contractors and grant recipients to seek guidance from legal counsel before conducting the training.

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