Executive Order Seeks to Regulate Government Contractors’ Training Concerning Workforce Inclusion

On September 22, 2020, the White House issued an Executive Order (“EO” or “Order”) titled “Combating Race and Sex Stereotyping.” The requirements applicable to government contractors are effective with respect to contracts entered into 60 days after the date of the EO. The EO is based on the president’s authority under the Federal Property and Administrative Services Act, 40 U.S.C. § 101-1315, which concerns “provid[ing] the Federal Government with an economical and efficient system for procuring and supplying property and non-personal services” and the performance of related functions. Under the EO, federal contractors "will not be permitted" to provide workplace training sessions that would "inculcate … views" that would "promote race or sex stereotyping or scapegoating" as defined in the Order. Contractors will be required to include the provisions of the EO in "every subcontract or purchase order," with certain exceptions.

Section 1 states the background for the EO by, among other things, describing a series of workforce training events conducted for federal employees and contractors that were reported to have involved, in some instances, stereotyping. The EO states the position, among other things, that such training sessions, which many companies provide to increase workforce cohesion and sensitivity, actually have the effect of “divid[ing] us and . . . prevent[ing] us from uniting as one people in pursuit of one common destiny for our great country.”

The EO explains that “[o]ur Federal civil service system is based on merit principles.” It indicates that “[i]nstructing Federal employees that treating individuals on the basis of individual merit is racist or sexist directly undermines our Merit System Principles and impairs the efficiency of the Federal service.” It also states that the “Uniformed Services should not teach our heroic men and women in uniform the lie that the country for which they are willing to die is fundamentally racist.”

Because certain materials and instruction described in the EO are viewed by some as “promot[ing] division and inefficiency when carried out by Federal contractors,” the EO declares that “it shall be the policy of the United States not to promote 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.”

With respect to restrictions on training provided by federal contractors to their employees, the EO provides two relevant definitions. First, “race or sex stereotyping” means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” Second, “race or sex scapegoating” is defined as:

assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

As explained in the EO, the prohibited activities include instruction that (quoting):

• 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.

Under the EO, contractors must post the Order in their workplaces and are required to provide notice of the EO to labor unions or other organizations bargaining on behalf of the contractor’s personnel.

If contractors do not comply with the EO, the Order threatens that their “contracts may be canceled, terminated, or suspended in whole or in part.” In addition, the contractor may suspended or debarred, e.g., “declared ineligible for further Government contracts.” To oversee potential violations by contractors, the Order requires the Office of Federal Contract Compliance Programs (OFCCP) to establish a “hotline and investigate complaints received under [] this order” and be certain that contractors are not “utilizing such training programs in violation of the contractor’s obligations under those orders.” The Department of Labor shall take appropriate enforcement action and provide remedial relief, as appropriate.

The Order also provides that the federal government may assist contractors sued over compliance with the EO. Specifically it states that “in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”