On its first day in office, the Biden administration issued an executive order (EO) in which it revoked an EO by the previous administration that purported to “combat race and sex stereotyping.” After it was issued on September 22, 2020, the previous administration’s EO, No. 13950, was strongly criticized by business and civil rights groups, who complained that (among other things) it violated the First Amendment and was vague and difficult to apply. Three months later, a federal district court enjoined the Office of Federal Contract Compliance Programs from enforcing the sections of EO 13950 that imposed requirements on government contractors and grant recipients. Based on the Biden administration’s revocation, companies doing business with, or performing under grants from, the federal government no longer need to devote resources to determining how to comply with EO 13950.
As we previously explained, EO 13950 attempted to prohibit federal contractors from providing workplace training sessions that would "inculcate … views" potentially "promot[ing] race or sex stereotyping or scapegoating," as defined in the order. The EO justified the new restrictions by referencing reports concerning four exemplary “workplace diversity training” programs in which content characterized as “contrary to the fundamental premises and underpinnings of our Republic” was purportedly presented. Based on the concerns raised by the described training sessions, the EO prohibited contractors from providing any instruction related to a series of topics, such as teaching that “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” (The entire list of prohibited “divisive concepts” is quoted in our previous Legal Update and is found in Section 2 of EO 13950.)
Many business and civil rights groups—including the U.S. Chamber of Commerce, the NAACP, and Lambda Legal—publicly opposed implementation of EO 13950, complaining that (among other things) it will create confusion and uncertainty and lead to non-meritorious investigations. In addition, several civil rights groups challenged the EO in federal courts. On December 22, 2020, a federal district court issued a preliminary injunction in a case brought by a California LGTBQ+ group. The court did not strike down the entire EO but prohibited any enforcement (nationwide) of the “requirements for government contractors” and “requirements for federal grants.”
On his first day in office, President Biden issued an expansive EO “On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” In Section 10, the EO explicitly revoked EO 13950 in its entirety. The new EO also made clear that the heads of agencies covered by EO 13950 must “review and identify proposed and existing agency actions related to or arising from [EO] 13950” and “consider suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants.” (The EO also revoked the previous administration’s EO 13958, which established the Presidential Advisory 1776 Commission.)
President Biden’s EO makes clear that it will be the policy of his administration that “the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” The White House’s Domestic Policy Council is tasked with coordinating “efforts to embed equity principles, policies, and approaches across the federal government.” This effort will require that different offices and agencies:
- identify methods to assess equity
- conduct equity assessments
- allocate federal resources to advance fairness and opportunity
- promote equitable delivery of government benefits and opportunities
- consult and engage with members of underserved communities
- establish an equitable data working group to reduce the number of federal datasets that are not “disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables”
The new EO does not currently impose any requirements directly on government contractors. That said, government agencies or offices conducting the required equity assessments described above may request information from government contractors or grant recipients.