Bloomberg Law
Oct. 30, 2020, 9:00 AM

Trump Rule Leads Contractors to Cut Diversity, Bias Training

Paige Smith
Paige Smith
Jeff Green
Jeff Green
Bloomberg News

President Donald Trump’s recent attempt to curb corporate diversity training will linger even if he loses Tuesday’s election to former Vice President Joe Biden. Already, federal contractors are unsure of what they can say about race.

More than 300 events, training programs, research projects and other diversity-related activities have been delayed or canceled because of concern about a Sept. 22 executive order aimed at banning federal contractors and agencies from using terms in diversity training that the administration considers divisive and illegal, according to the African American Policy Forum, a social justice think tank. A Labor Department official said last week that the agency’s already received more than 100 complaints via a government hotline to report possible violations.

The executive order, which bars the use of concepts such as “White privilege” and “White fragility,” runs counter to a rush by corporations to enhance diversity efforts after the police killing of George Floyd in May. Many executives have pledged to tackle structural or implicit racism, which the Trump order also flagged as potentially illegal. The prospect of scrutiny from the government calls such initiatives into question, and casts a shadow that could long outlast the Trump administration.

The U.S. Chamber of Commerce and a group of more than 150 companies have asked that the order be rescinded. The NAACP Legal Defense and Educational Fund also said Thursday that it is representing the National Urban League and the Fair Housing Alliance in a lawsuit over the order. Other suits may follow, said Shirley Wilcher, who was head of the U.S. Department of Labor’s Office of Federal Contract Compliance Programs during the Clinton administration. She’s now the executive director of the American Association for Access, Equity, and Diversity.

Even if Biden wins, companies will still have to be careful with what kinds of training materials they use, said Laura Mitchell, a principal with the law firm Jackson Lewis. She works with employers dealing with the OFCCP, which is asking federal contractors to turn over training materials and is fielding complaints through the new hotline.

The White House frames the new rule as mirroring existing anti-discrimination statutes, including Executive Order 11246 from 1965.

“It is unacceptable for taxpayer dollars to fund workplace training that promotes racial stereotypes or encourages discrimination based on the color of an employee’s skin,” White House spokesman Judd Deere said in an email Thursday.

By trying to change the interpretation of established policy, the administration could shape corporate training for years to come, even if Trump’s successor rescinds the September executive order.

The complaint hotline probably is here to stay, said Mickey Silberman, an attorney who represents federal contractors in OFCCP matters. Under any administration, an agency charged with fighting discrimination wouldn’t want to be seen eliminating a hotline that lets workers submit complaints.

For now, he said, companies have either put diversity training on hold until after the election, revised their training materials to meet the mandate or decided to ignore the order.

Sterling Cruz-Herr, founder of TransClue, a training and consulting company focused on equality for transgender and non-binary people, said the company was among the groups already affected by the rule. TransClue had a training session scheduled Oct. 7 for employees of the U.S. Environmental Protection Agency, but it was postponed because of the order.

“It’s not so clear what fits and doesn’t fit,” Cruz-Herr said. The training would have offered tips on how the resilience of LGBTQ people against discrimination can be a pattern for people navigating the stress of Covid-19 as well as racial protests, they said in an interview.

Schools also might have to adjust, dropping certain references to slavery and racism in history lessons, said Vincent Wong, research associate with the African American Policy Forum. The group used a member mailing list and social media to gather examples of programs and materials being reconsidered. “It’s spread like wildfire,” he said.

Wong sees the executive order as a sign of the conservative reaction against the culture’s growing recognition of systemic racism. He expects the rule to resonate for years.

“It’s not going to go away if Trump loses the election,” Wong said. “All of the infrastructure — that’s going to remain.”

To contact the authors of this story:
Paige Smith in Arlington at

Jeff Green in Southfield at

To contact the editor responsible for this story:
Philip Gray at

Jay-Anne Casuga

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