EO 13950 states it was issued “to combat offensive and anti-American race and sex stereotyping and scapegoating.”
On September 22, 2020, President Trump issued Executive Order (EO) 13950, “Combating Race and Sex Stereotyping.” This comes on the heels of a memo issued by the Office of Management and Budget (OMB) to federal agencies criticizing what the memo characterized as “divisive, anti-American propaganda” training conducted at some agencies and the use of tax dollars to support such training. EO 13950 formally extends this admonition to federal government contractors, prohibiting contractors from conducting employee training that the order labels “blame-focused diversity training” that it claims “perpetuates racial stereotypes and division” and “reinforces biases and decreases opportunities for minorities.”
OMB Memo Preceding Executive Order 13950
The September 4, 2020, OMB memo attacked agency trainings containing specific messaging, including:
- Instruction that “virtually all White people contribute to racism”;
- The requirement for white individuals to say that they “benefit from racism”; and
- Instruction that “racism is embedded in the belief that American is a land of opportunity or in the belief that the most qualified individual should receive the job.”
The OMB memo stated that such training undercuts the core values of America and drives further division in the country. The OMB instructed all agencies to identify contracts or spending on “any training on ‘critical race theory,' ‘white privilege,' or any other training or propaganda effort that teaches or suggests either (1) that the U.S. is an inherently evil or racist country or (2) that any race or ethnicity is inherently evil or racist.”
Employee Training Targeted by Executive Order 13950
EO 13950 states it was issued “to combat offensive and anti-American race and sex stereotyping and scapegoating.” In ideologically tinged language highly unusual for an executive order applicable to employment-related activities of federal government contractors, EO 13950 states that:
Today… many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual. This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist county; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans. … Unfortunately, this malign ideology is now migrating from the fringes of American society and threatens to infect core institutions of our country. Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country, even in components of the Federal Government and among Federal contractors.
Accordingly, EO 13950 states at the conclusion of Section 1 (Purpose):
[I]t 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. In addition, Federal contractors will not be permitted to inculcate such views in their employees.
Notably, the EO does briefly allow that:
Executive departments and agencies [such as] our Uniformed Services, Federal contractors, and Federal grant recipients should, of course, continue to foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics. Training employees to create an inclusive workplace is appropriate and beneficial. The Federal Government is, and must always be, committed to the fair and equal treatment of all individuals before the law.
What Federal Contractors Need to Know About EO 13950
To What Federal Contracts Does EO 13950 Apply?
Federal contracts entered into on or after November 21, 2020, are required to comply with the provisions of EO 13950. Unfortunately, EO 13950 does not clarify whether it applies to renewals or modifications of existing contracts or to purchase orders.
New Contract and Subcontract Clause
The EO establishes a new required contract clause that federal contractors also must include in subcontracts to covered federal contracts, as follows:
During the performance of this contract, the contractor agrees as follows:
The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.
Prohibited Content of Federal Contractor Employee Training
EO 13950 prohibits training that includes race or sex stereotyping or scapegoating. “Race or sex stereotyping” is defined as “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.” “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.”
EO 13950 also identifies and prohibits the following nine specific “divisive concepts”:
- That one race or sex is inherently superior to another race or sex;
- That the United States is fundamentally racist or sexist;
- 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; and
- That meritocracy or traits such as hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
Notice to Employees, Applicants and Unions
EO 13950 requires federal contractors to provide a notice to employees, applicants and unions. The notice must be posted in a conspicuous place available to employees and applicants (similar to other workplace posters) and must be sent to any union representing the contractor's employees. The notice required to be provided has not yet been published.
The new EO also required a specific hotline be established for reporting violations of EO 13950. The Office of Federal Contract Compliance Programs (OFCCP) quickly created the hotline, which is now active.
As with most other employment-related federal contractor obligations, the OFCCP is responsible for enforcing EO 13950. Potential penalties for violations include technical violations, damages to employees and potential debarment.
EO 13950 also instructs the OFCCP to solicit information from contractors regarding training, workshops or similar programming provided to employees, as well as the duration, frequency and expense of such activities.
What This Means for Employers
Federal government contractors who enter into federal government contracts or subcontracts covered by EO 13950 should work with employment counsel to carefully review their diversity and inclusion training programs for employees as well as all employee training touching on issues such as race and sex discrimination and harassment to ensure compliance with EO 13950. Covered contractors also should ensure compliance with the “technical” requirements of EO 13950, including inserting the required contract clause into any covered subcontracts and complying with the EO's notice posting and issuance requirements.
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