Gov't Contractors Can Promote Diversity Despite Trump Order

Law360 (November 23, 2020, 12:46 PM EST) --
Allison Powers
Allison Powers
In recent years, alongside the cultural awakening that has spawned the ongoing resurgence of the civil rights movement, diversity, equity and inclusion, or DEI, has evolved out of employment law, human resources and workplace anti-discrimination principles to become its own domain.

DEI programs have as one objective dismantling systems of oppression and discrimination against protected groups, which may include efforts to address problematic interactions with the public, improve demographics and representation of diverse groups, or enhance workplace culture. 

One of the building blocks of a robust DEI program is employee training that goes beyond merely parroting anti-discrimination statutes like Title VII of the Civil Rights Act to instead make meaningful progress toward advancement of protected groups in the workplace.

Striking at the root causes of discrimination has become an important component of DEI training in both the public and private sectors. For example, a growing number of state and municipal police forces in Connecticut, New Jersey, New York City and Indianapolis; medical professionals in Washington, California, Connecticut, New Jersey and New Mexico; and educators in Illinois and New York City are required to undergo implicit bias or cultural competence training.

In addition, some states, including California and Illinois, require some or all employers to train employees annually on the general topic of sexual harassment. And in recent years, numerous private employers have issued unambiguous anti-racism and anti-discrimination statements and implemented mandatory implicit bias training programs.

Yet, under the administration of President Donald Trump, DEI has come under scrutiny as ineffective and divisive. In September, Trump issued Executive Order No. 13950, Combating Race and Sex Stereotyping, which states the policy of the U.S. is "not to promote race or sex stereotyping or scapegoating" and prohibits federal contractors from inseminating concepts like implicit bias and critical race theory in workplace diversity and inclusion trainings.[1] 

The order became effective immediately when signed on Sept. 22, but requirements for federal contractors and subcontractors will apply to contracts entered into on or after Nov. 21.[2]

Specifically, the order asserts:

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. ... But [such] training ... perpetuates racial stereotypes and division and can use subtle coercive pressure to ensure conformity of viewpoint. Such ideas may be fashionable in the academy, but they have no place in programs and activities supported by Federal taxpayer dollars.[3]

On its face, the order mounts a direct challenge to bedrock principles of DEI as a discipline. As a result (or at least not surprisingly), an avalanche of federal employee groups, employment lawyers and contractors, and the media have denounced it. Several civil rights and advocacy groups have also filed lawsuits challenging the order as an unconstitutional restriction on free speech.[4]

Following the backlash, the Office of Federal Contract Compliance Programs, the agency responsible for enforcing the order,[5] responded with interpretive guidance that specifically addresses, and appears to recant, the prohibition on unconscious bias training. In an FAQ posted to the agency's website, the OFCCP indicated at least some unconscious bias training may continue under the order.[6]

OFCCP Director Craig Leen elaborated on where the line is between unconscious bias training that may continue and courses that must be halted on Oct. 19 during a federal workforce summit for the publication Government Executive:

Unconscious bias training, if it's the sort of traditional training I've experienced, which is based on the human condition where every person has certain biases, stereotypes or prejudices that exist and they have to take account of them to make sure those sorts of biases are not impacting the actual decisions that a person is making or things that person says ... if that's the training it's perfectly fine. [Training] on white fragility or white privilege is likely to be problematic, because it's identifying a particular race and making certain pronouncements regarding people of that race that may be in your workforce, who are a captive audience, listening to the training.

The OFCCP FAQs, together with Leen's comments, appear to stand for the proposition that employers can use the phrases "unconscious bias" or "implicit bias" in their trainings, but would be wise to avoid any of the doctrinal underpinnings of the concept or using "white privilege" as a catchphrase. That narrow opening gives little comfort to employers who have competing obligations to provide anti-discrimination or implicit bias trainings and those who want to act deliberately to be anti-racist and make their spaces safe for underrepresented or marginalized groups.[7]

In addition to federal agencies, some other employers, unsure of what they can and cannot say, and afraid of the stiff penalties of noncompliance with the order, have temporarily discontinued their diversity training programs.[8] These suspensions may not last long, however. 

The Biden administration prioritizes racial equity and commits to ending systemic workplace discrimination.

Since being declared the projected winner of the national election, President-elect Joe Biden and Vice President-elect Kamala Harris have announced the transition team's priorities: COVID-19, economic recovery, racial equity and climate change.[9]

Biden's multipage plan for combatting racial inequality commits to "ensur[ing] workers of color are compensated fairly and with dignity" and to "address[ing] discrimination and harassment in the workplace," including "mak[ing] systemic changes to address sexual harassment and other discrimination so workplaces are safe and fair for all."[10]

Further, the racial equity page on the transition website says that Biden will "work to build an economy where every American enjoys a fair return for their work, and an equal chance to get ahead."[11] Moreover, the transition will prioritize as a core value "diversity of ideology and background."[12]

Given these priorities, it is likely that, once sworn into office, Biden will act quickly to overturn Executive Order No. 13950. No one can say when, of course.

During the transition, motivated employers can still conduct DEI trainings while remaining compliant.

Until there is a law change, employers that are federal contractors or subcontractors entering into new contracts or subcontracts as of Nov. 21 will still be responsible for complying with the order.[13] But there is a lot they can do, even with the restrictions in place.

Covered employers motivated to advance their DEI agendas can still:

  • Issue restatements of their commitment to DEI.

  • Plan and advertise DEI trainings that will occur in the future, under the new administration.

  • Hire staff dedicated to advancing DEI goals within their organizations.

  • Hire, promote and empower qualified diverse employees at all levels.

  • Work toward meeting objective DEI goals stated in their programs.

  • Encourage dialogue among employees across a variety of subjects.

  • Provide trainings unrelated to race, sex or gender diversity.

  • Review their training materials and excise content that has been deemed potentially problematic, to instead focus on broad, informational concepts designed to inform employees or foster discussions about perceived biases and stereotypes that people, regardless of race or sex, may have regarding people who are perceived as different — if they must provide trainings regarding race or gender before the order is repealed.

While there likely will be fewer restrictions under a Biden administration, the transition could be tumultuous, and the landscape could evolve quickly.



Allison N. Powers is a partner at Barack Ferrazzano Kirschbaum & Nagelberg LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See 85 Fed. Reg. 188, 60683 (Sept. 28, 2020), available at https://www.govinfo.gov/content/pkg/FR-2020-09-28/pdf/2020-21534.pdf.

[2] See id. at 60688.

[3] Id. at 60684.

[4] See National Urban League, et al. v. Donald J. Trump, et al., No. 1:20-cv-03121 (D.D.C. filed Oct. 29, 2020); Santa Cruz Lesbian and Gay Community Center, et al. v. Donald J. Trump, et al., No. 5:20-cv-07741 (N.D. Cal. filed Nov. 3, 2020).

[5] The OFCCP also has responsibility for enforcing companion Executive Order 11246, which requires contractors and subcontractors to treat employees without regard to their race or sex, among other protected bases, and requires contractors to take affirmative action to ensure such discrimination does not occur. The OFCCP has taken the position that even before Executive Order 13950 issued, Executive Order 11246 may have already prohibited stereotyping and/scapegoating in training content.

[6] See https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950.

[7] The OFCCP recently published a Request for Information in the Federal Register asking contractors who are unsure about whether their training materials comply with the Executive Order to submit them for review by December 1, 2020 to ensure that they do not "involve race or sex stereotyping or scapegoating." 85 Fed. Reg. 205, 67375 (Oct. 22, 2020). According to the RFI, where a contractor voluntarily submits its materials for review the agency will exercise its enforcement discretion and not take enforcement action if the contractor promptly comes into compliance. However, the agency reserves the right to initiate enforcement actions if it determines that the contractor refused to correct any identified issues. Given the uncertainty of the potential safe harbor and other implications, few employers are likely to accept the OFCCP's invitation, but should in any case consult with counsel prior to doing so.

[8] See, e.g., University of Iowa Statement Regarding Executive Order 13950, available at https://diversity.uiowa.edu/regarding-executive-order-13950.

[9] See https://buildbackbetter.com/priorities/.

[10] See https://joebiden.com/racial-economic-equity/.

[11] See https://buildbackbetter.com/priorities/racial-equity/.

[12] See https://buildbackbetter.com/the-transition/.

[13] Employers that are not federal contractors or subcontractors are not affected by the Executive Order and may have more latitude as to the content of their DEI trainings. However, they should be mindful of the OFCCP's position regarding applicability of Executive Order 11246.

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