Executive Order 13950 – Combating Race and Sex Stereotyping

On September 22, 2020, the President signed Executive Order 13950 – Combating Race and Sex Stereotyping (EO 13950). The new Executive Order is intended “to combat offensive and anti-American race and sex stereotyping and scapegoating[.]” To implement that goal, EO 13950 states that the government’s policy is “not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services …. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

In practical terms, this means that federal contractors will be prohibited from conducting or providing workplace training that teaches what EO 13950 identifies as “divisive concepts.” The prohibited “divisive concepts” include the concepts that:

• One race or sex is inherently superior to another race or sex;
• The United States is fundamentally racist or sexist;
• 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.

In recently released FAQs, the Office of Federal Contract Compliance Programs (OFFCP) explained that unconscious bias or implicit bias training will still be permitted to the extent that “it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.” However, the training will violate EO 13950 if it “teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.”

Because EO 13950 does not define the term “contractor,” it appears that the new training requirements apply to the training of all contractor employees, not just those working on a federal contract. There is no exclusion for commercial item contractors.

These requirements will be incorporated into all new contracts entered into after November 21, 2020. The new contract clause must be flowed down to all subcontracts and purchase orders at every level regardless of value.

The OFCCP has already established a hotline to take reports of violations. In the FAQs, the OFCCP also made the unexpected assertion that it already has the authority to enforce prohibitions on race and sex stereotyping, suggesting that it intends to investigate reported contractor violations of EO 13950 before its November 21, 2020 effective date.

Violations of the contract clause may subject a contractor to cancellation, termination, or suspension of its contract, as well as debarment. EO 13950 also contemplates referrals to the Equal Employment Opportunity Commission or the Department of Justice for enforcement under Title VII of the Civil Rights Act of 1964.

Since its issuance, EO 13950 has drawn criticism and calls for the President to rescind it. The U.S. Chamber of Commerce wrote a letter to the White House, signed by more than 150 businesses and nonprofits, including the Associated General Contractors of America, the American Institute of Architects, and the American Council of Engineering Companies, asking the President to rescind the order, citing its ambiguities and subjectivity and noting that some contractors have stopped all diversity and inclusiveness training rather than risk debarment. The Chamber of Commerce letter states, “As currently written, we believe the E.O. will create confusion and uncertainty, lead to non-meritorious investigations, and hinder the ability of employers to implement critical programs to promote diversity and combat discrimination in the workplace. We urge you to withdraw the Executive Order and work with the business and nonprofit communities on an approach that would support appropriate workplace training programs. While it is encouraging that the E.O. states that, ‘Training employees to create an inclusive workplace is appropriate and beneficial,’ we fear that the E.O. will diminish the amount of training that takes place.”

In a letter to the Office of Management and Budget, the American Society for Engineering Education called EO 13950 “destructive, misguided, misleading, and brazen in its usage of civil rights imagery and language to justify its position.” The American Hospital Association urged the President to rescind the order because it “would effectively reverse decades of progress in combating racial inequality.” The HR Policy Association, the American Council on Education, and the Information Technology Industry Council, among many others, have also called for the order to be withdrawn.

Irrespective of whether EO 13950 would survive a potential change in administration or even a legal challenge, the ramifications of this order merit attention by contractors. While EO 13950 remains in effect, contractors should be aware of these new requirements and be prepared to see the new clause in contracts after November 21, 2020.

Jacob W. Scott is Of Counsel in Smith Currie’s Washington, D.C. office. In serving his extensive national client base, Jake practices government contract law and construction litigation, with a focus on federal construction law, where the intersection of his skill sets in litigation and contracts manifests. He can be reached at jwscott@smithcurrie.com or 202.452.2140.