Executive order on workplace training for federal contractors and federal grant recipients released Executive Order Details On 22nd September 2020 President Donald Trump issued an executive order which prohibits federal contractors and federal grant recipients from conducting any workplace training that, among other things, includes: The concept that (b) an individual under by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously, (f) 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; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as hard work ethic are racist or sexist or were created by a particular race to oppress another race. The term “race or sex stereotyping” means ascribing privileges, status, or beliefs to a race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or members of a race or sex because of their race or sex. The executive order further requires each contractor to:
Send any labor union or workers’ representative with which they have a collective bargaining agreement notice of intent to comply with the order; and Post copies of the notice in conspicuous places available to employees and applicants for employment.
The executive order also directs the Department of Labour to create a hotline for employees to report employers who violate the order. In addition, government agencies are directed to request copies of all diversity and inclusion materials from contractors. This requirement applies to all contracts and grants entered into after the order’s effective date and the requirement takes effect 60 days after the order’s effective date, potentially affecting hundreds of thousands of organizations that currently receive federal assistance through contracts, grants, or other programs. No current changes are required for current grant recipients and federal contractors but they may be required in the future to be awarded new contracts or grants to the extent integrated into contracts and grants. The implementation of this executive order through the Department of Labor will be critical and includes:
Establishment of a hotline to receive complaints; Publication of a request for information from federal contractors and grantees; and Potential promulgation of regulations.
Comment This executive order is likely to be challenged on various grounds, including First Amendment grounds. Nevertheless, employers who are Government contractors – even if the contract is not yet up for renewal – should review their training material, as the definition above could easily extend to
any training that references or educates employees about concepts of unconscious bias or suggests in any way white men face fewer challenges or obstacles than women or people of color. The penalties for violation would include potential disqualification from an award of federal contracts or grants, civil and criminal penalties, and suspension or debarment from participation in federal programs. The executive order also moves beyond federal contractors by directing the attorney general to assess the extent to which workplace training that teaches the foregoing concepts and may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 USC 2000e at seq. Thus, all employers may wish to review their materials in anticipation of future Equal Opportunity Commission action for reverse discrimination.