Client Alert
Executive Order on “Combatting Race and Sex Stereotyping”
September 28, 2020
By Kenneth W. Gage, Kenneth M. Willner, Adriana N. Simmons & Blake Bertagna
On September 22, 2020 President Trump issued an “Executive Order on Combating Race and Sex Stereotyping” (the “Order”), focused in large part on workplace training programs used by Government Contractors, recipients of Federal Grants, U.S. Uniformed Services, and Federal Agencies.
The stated purpose of the President’s Order is to combat the ideology that the United States of America is “inherently sexist and racist,” which the Order suggests is currently promoted in workplace diversity trainings. This comes at a time when many employers have intensified their diversity and inclusion initiatives, some with a particular focus on concepts of unconscious bias and reflections on whether certain majority groups have benefited (and continue to benefit) from privilege.
Below is a summary of the key provisions.
New Requirements for Government Contractors
Starting with Contracts entered into November 21, 2020 or after, all Government Contracts shall include the following provision:
The Contractor agrees not to use workplace training that “inculcates in its employees” any form of race or sex stereotyping, “scapegoating,” or “divisive concepts,” including the following concepts:
one race or sex is inherently superior to another race or sex;
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 Contractor agrees to send to each labor union a notice, to be provided by the Agency contracting officer, advising the union of the employer’s commitment to the Order, and to post copies of such notice in conspicuous places available to applicants and employees;
The Contractor agrees that non-compliance with items 1, 2 and 4 can result in cancellation, termination or suspension of the contract, or debarment from Government Contracting; and
The Contractor shall include the above provisions in every subcontract or purchase order.
OFCCP Data Collection of Diversity and Inclusion Training
The Order further directs the Office of Federal Contract Compliance Programs (“OFCCP”) to publish a request for information in the Federal Register seeking information from Contractors “and employees