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Trump’s Diversity Training Ban Draws NAACP Legal Challenge (2)

Oct. 29, 2020, 6:19 PM; Updated: Oct. 30, 2020, 1:32 PM

The NAACP and other civil rights groups hit the Trump administration Thursday with a constitutional challenge to the president’s recent executive order banning federal contractors and grant recipients from holding workplace diversity trainings that discuss “divisive” topics like race and sex “stereotyping and scapegoating.”

“The order identifies viewpoints that the Trump administration dislikes—such as the existence of white privilege, implicit bias, systemic racism, structural inequalities, or intersectional experiences of discrimination—and attempts to purge them from the national conversation,” the lawsuit says. “This targeted censorship violates the First Amendment.”

The proposed class action was filed on behalf of the National Urban League and the National Fair Housing Alliance, two civil rights groups, in the U.S. District Court for the District of Columbia. It targets Executive Order 13950, titled “Combating Race and Sex Stereotyping,” which President Trump signed in late September.

The U.S. Department of Labor has been tasked with enforcing the order, which outlaws any training that suggests a worker is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

A DOL spokesperson defended the order Friday and said the agency expects it to be upheld.

“The elimination of race and sex stereotyping and scapegoating in employment is a key civil rights priority of the Trump Administration,” the spokesperson said. “The Department of Labor is confident it will prevail in this lawsuit.”

The White House didn’t respond to a request for comment Thursday.

The DOL’s Office of Federal Contract Compliance Programs has established complaint hotlines where workers can report instances of “offensive” trainings, and is seeking public input and sample training materials from federal contractors.

Craig Leen, who heads the contractor watchdog agency, previously said not all implicit or unconscious bias training is banned by the order. But he did say it outlaws programs on “white privilege” or “white fragility.”

The complaint calls the order “an extraordinary and unprecedented” act involving a “broad-based prohibition of private speech on matters of immense public concern” that “strikes at the heart” of efforts “to eradicate race and sex stereotyping” against “people of color, women, and LGBTQ individuals.”

“The depth and scope of EO 13950’s constitutional flaws are alarming and, if left unremedied, will erode the core principles of our democracy and the foundations of our pluralistic society,” the suit says.

It’s also unenforceably vague, according to the complaint.

In addition to Trump himself, it targets the Labor Department and Labor Secretary Eugene Scalia.

The case landed on the docket of Judge Amit P. Mehta, an Obama appointee who was assigned last week to oversee the Justice Department’s landmark antitrust lawsuit against Google.

Cause of Action: First Amendment; due process and equal protection clauses of the Fifth Amendment.

Relief: An injunction declaring the executive order unlawful and blocking it; costs and fees.

Potential Class Size: “All persons and entities who contract” or “bid to contract” with the federal government—as well as all recipients of, or applicants for, federal grants—that “offer or intend to offer” workplace diversity training sessions meant to “examine and dismantle racism and gender discrimination.”

Attorneys: The civil rights groups are represented by NAACP Legal Defense and Educational Fund Inc.

The case is Nat’l Urban League v. Trump, D.D.C., No. 20-cv-3121, complaint filed 10/29/20.

(Updates Oct. 29 story with Labor Department response.)

To contact the reporters on this story: Mike Leonard in Washington at mleonard@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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