President Trump issued Executive Order 13950 for the stated purpose of addressing race and gender references in diversity and inclusion trainings by federal contractors and entities receiving federal grants.
Under EO 13950, federal contractors and funds disbursed under federal grants cannot be connected with conducting trainings which promote racial or gender stereotyping or scapegoating. Examples include trainings and training materials which support inherent racism or sexism connected with a person’s race/gender as a result of conscious/unconscious bias, projection of guilt or anguish by virtue or race/gender, or race/gender being used to designate responsibility for past actions by the same race/gender group.
There is little in EO 13950 that is not forbidden under current Equal Employment Opportunity Commission and Office of Federal Contract Compliance Programs regulations. Preventing race-based or gender-based stereotyping is the essence of protections under Title VII and related state civil rights statues.
A key source of confusion with EO 13950 is the implicit assertion that conducting implicit bias training is “race shaming” on the basis such programs promote recognition that a person’s background, perspectives, and experience (which include among many things, race and gender) affect their treatment of others.
Executive Order 11246 was issued almost 55 years prior to EO 13950 and is the bedrock of OFCCP’s authority to regulate covered federal contractors on the race and gender profiles of their workforce.
Under existing framework—which is unchanged by EO 13950—contractors and subcontractors who perform services for federal agencies over a certain cost are prohibited from discriminating in employment decisions on the basis of race, color, religion, sex or national origin. These companies are required to take affirmative action to ensure underrepresented populations by race or gender are employed among the respective job groups.
Since these requirements came into existence, companies have prepared annual evaluations or affirmative action plans (AAPs) which document in significant statistical detail their workplace profile. AAPs may include measures to address past discrimination in an industry through targeted recruiting of women and minorities, establishing placement goals for adding women and minorities in positions showing large statistical placement disparities, and conducting implicit bias trainings.
What Is and Is Not Prohibited?
As companies express their commitment to expand diversity and inclusion in 2020, it is important to dispel confusion about what is and is not prohibited in D&I initiatives and HR practices generally.
Myth: Companies should halt their diversity trainings and retract materials associated with implicit bias training.
Reality: There is nothing illegal with conducting implicit bias trainings. The basis of these trainings, under appropriate facilitation and training materials, is a human perspectives guidance which recognizes the different lens that employees have. Companies are well served to have counsel review their training materials and the syllabus used by its facilitators in this area for compliance.
Myth: Establishing diversity goals, such as a commitment to increase Black or Latinx employees by X number/percentage, is illegal.
Reality: Not only is this false, but depending whether the entity is a covered federal contractor with significant statistical disparities, it may actually be required to establish placement goals with the underrepresented group.
Even if a company is not a federal contractor, the U.S. Supreme Court established in the United Steelworkers v. Weber case over for 40 years ago that Title VII does permit certain voluntary race-conscious affirmative action. However, homework is to be done between the legal team and human capital functions in designing aspirational goals as described above, so they are structured appropriately.
Myth: But aren’t diversity goals quotas, which are illegal?
Reality: This is perhaps the most misunderstood principle among practitioners and non-practitioners alike. Quotas are quotas. Diversity goals are not. The difference is a quota is a requirement to have a certain number for a position, which may result in a bar or practical inhibition on the ability of the majority group (usually men or whites) to have opportunity for consideration. That is materially different from a company taking affirmative efforts via various methods, such as increasing the population of diverse applicant candidates, using recruiters specializing in women or minorities, or assigning some plus factor for diversity in the application process.
The methodology used by an employer is important because issues such as how voluntary self-identification information is collected can turn a compliant initiative into a potential legal claim.
Myth: As a federal grant recipient, our acceptance of federal funds gives the government veto power over our diversity programs.
Reality: EO 13950 prohibits the use of federal funds on certain types of trainings, but does not address the ability of an entity to fund such training from its non-public funds. As additional guidance is developed (the Department of Labor is receiving questions for clarification on EO 13950), there will be opportunity to develop compliant trainings subject to the review of counsel. EO 13950 affects covered federal contracts entered into by a company on or after Nov. 21, 2020.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners
Tyrone P. Thomas is a Mintz member who has gained national recognition for his work in employment and sports law. As part of his practice, he advises on compliant implementation of diversity, equity, and inclusion initiatives. He also advises on U.S. Equal Employment Opportunity Commission (EEOC) and Office of Federal Contract Compliance Programs (OFCCP) compliance for federal contractors. In addition to his legal practice, he serves as chair of the firm’s diversity committee.