On Sept. 24, 1965, President Lyndon Johnson signed Executive Order 11246 stating that “[i]t is the policy of the Government of the United States … to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency.” Fifty-five years later—nearly to the day—the Trump White House released Executive Order 13950 “On Combating Race and Sex Stereotyping.”
Under the terms of the order, government contracting agencies are required to add provisions to all government contracts prohibiting the use of any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”
Most of the so called “divisive concepts” that the order then explicitly prohibits are very rarely, if ever, included in workplace diversity programs, but some do relate to concepts of implicit bias or systemic racism that may be covered in such programs, and others could arise when employees express their concerns or feelings during a training program. However, even to the extent that such concepts could arise during a training, one would never expect them to be expressed, as they are in the order, without any nuance or context.
According to the order, stereotyping and scapegoating includes but is not limited to: the concepts that an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; 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; or that any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.
Shock and Dismay
The immediate reaction of federal contractors to the order was overwhelmingly one of shock and dismay. Most federal contractors feel strongly that a diverse workforce is a key to success in the modern global economy.
Moreover, following the tragic death of George Floyd in Minneapolis earlier this year and related events, many employers have been making new commitments to address racial injustice and inequity, particularly for Black employees.
These efforts have included commitments to increasing the representation of Black employees in the workplace, particularly at leadership levels, but have also included a commitment to honestly addressing our country’s history of systemic racism and the continuing impact of that history.
The very broad language of the order was reasonably interpreted by many contractors as intended by the government as a prior restraint on protected speech that could put an end to meaningful workplace diversity training.
Ironically, it is the Office of Federal Contract Compliance Programs (OFCCP), the agency within the Department of Labor that is responsible for enforcing Executive Order 11246 to protect and advance minorities’ rights, that was given the mission of also enforcing this new order. It was a role that OFCCP took on with unprecedented alacrity, almost immediately setting up and then publicizing the availability of a hotline that individuals could use to complain about employer violations of the order.
A Chilling Effect
Under these circumstances, even if OFCCP chooses to interpret the EO narrowly as permitting some training that covers, for example, unconscious bias, there is still a chilling effect due to the language of the order, which conveys an impression that such training is unlawful, as well as the efforts of OFCCP to promote complaints and a political and cultural climate that encourages the escalation of disagreements into the public realm through social media.
All of this is terribly unfortunate. Talking about race in America is already hard enough and it has been a struggle for employers and employees to come up with constructive ways to discuss difficult and important issues.
To the extent that the order forces complex and nuanced concepts into Manichean categories and then seeks to prohibit any discussion of such concepts, the order makes it much harder for employers to fulfill their obligations under federal and state equal employment opportunity laws.
It also makes it more difficult to address in a well-rounded way issues that their employees, their owners or shareholders, and their customers believe to be of importance.
Under these circumstances, it is not surprising that a civil action already has been filed in federal court seeking to strike down the order as, among other things, violating the First Amendment.
In the meantime, the order instructs executive agencies to begin including provisions requiring compliance with the order in government contracts entered into after Nov. 23, 2020. This order, however, like all executive orders purporting to affect government procurement, should be subject to the Federal Property and Administrative Services Act (FPASA).
If the FPASA applies, the order cannot be implemented until after the Federal Acquisition Regulatory Council has adopted and publishes appropriate contract clauses. If the FPASA is ignored, civil actions by contractors to enjoin implementation of the order seem likely. If the FPASA is followed, then implementation of the order will also be delayed.
In either event, there is a very good possibility that the order will not be implemented before Jan. 20, 2021, when President-elect Biden will take office and almost undoubtedly rescind it.
Unfortunately, even after rescission, there will likely be some repercussions, as at least some employees continue to feel empowered to disrupt or resist training as a result of the rhetoric in and surrounding the order.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners
David J. Goldstein co-chairs Littler Mendelson P.C.’s OFCCP Practice group. He devotes most of his practice to assisting employers with the implementation and maintenance of effective affirmative action programs and representing government contractors before the OFCCP as well as similar state and local agencies.