Executive Order Bans Training on Privilege and Systemic Bias for Government Contractors

In his September 22, 2020, Executive Order on Combating Race and Sex Stereotyping,  President Trump mandated sweeping changes to the content of any affirmative action trainings conducted by Federal contractors in conjunction with their Affirmative Action Plans. These new requirements go into effect for qualifying Federal contracts entered into or renewed after November 21, 2020.

Most private entities doing business with the Federal Government must maintain an Affirmative Action Plan (AAP) identifying methods by which they will seek to increase hiring and promotion of protected class individuals (e.g. women and minorities). AAP’s usually include training for managers and employees, which usually focus on eliminating unconscious bias by the decisionmakers to combat systemic barriers facing members of a protected class in regard to employment and advancement.

No Talk of “Divisive” Concepts Regarding Race/Sex 

The Executive Order identifies concepts it labels as “divisive” which must be removed from any training program maintained by a Federal contractor. Contractors not complying with this directive risk significant penalties, including cancellation/termination of the contract and ineligibility for future contracting opportunities.

The Order prohibits trainings that cover any of the following concepts:

  • 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.

The Order additionally prohibits training or instruction regarding “race or sex stereotyping,” which 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.”

Finally, the Order prohibits: “race or sex scapegoating” 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.”  Thus, trainings that members of any race or gender are inherently racist or sexist, or are inclined to oppress others, are prohibited.

Shifting the Focus from Equity to “Merit-Based”

Anti-bias training undertaken in accordance with AAP’s has almost always included a component instructing managers not to stereotype other persons based on their protected class status, and to refrain from allowing race or gender to handicap individuals in search of employment or advancement. This meant encouraging managers to recognize that certain systemic, economic and/or social may have impacted access to opportunity, and to think more expansively about a candidate’s credentials.  In short, this training emphasized equity and opportunity.

The Order now essentially blacklists the concepts of “privilege” or “inherent biases” from being discussed during these trainings, preventing contractors from training employees to account for any advantage an individual has because their race or gender. Trainings under the new Executive Order must focus solely on the candidate’s comparative merit on paper.

The timing of this order could be problematic for some contractors. The new requirements are scheduled to go into effect after the upcoming November election, but before the January, 2021, inauguration date.  If President Trump is not re-elected, it is reasonable to believe that a Biden administration would repeal this Order. However, with a two-and-a-half-month gap between election and inauguration, contractors needing to renew in that period may have to choose between modifying their training programs now or risking that enforcement of this new Order will be sufficiently tepid as to not impair their chances at contract renewal.

Two Additional Areas of Concern for ALL employers

The Executive Order pose another concern, one which apply to all employers, by directing the attorney general to “assess the extent to which workplace training that teaches the . . . [foregoing] concepts . . . may contribute to a hostile work environment and give rise to potential liability under Title VII…” It is not clear how this assessment will take place but it does seem to signal the possibility for increased government intervention for employers deemed guilty of providing training inconsistent with the Executive Order’s goals.

Moreover, the Office of Federal Contract Compliance Programs (OFCCP) has announced the creation of a hotline for employees to complain about workplace training that breaches the Executive Order’s intent to “combat offensive and anti-American race and sex stereotyping and scapegoating.”  These complaints may trigger investigations and possible enforcement actions.  Given the intensity of the current political environment, as well a historic pattern of resistance to equity training on the part of many employees, this hotline may be ringing off the hook in the coming months

Bottom Line

This Executive Order greatly changes the paradigm for federal contractors, enough so that we expect to see legal challenges very soon.  Some parties have suggested that this order infringes on constitutional protection of speech, while others question whether the order impermissibly ignores procedural requirements for changing contractor obligations.

This should be a bumpy ride for the next few months.