Federal Contractors’ Diversity and Inclusion Training Under Fire

Issued on September 22, 2020, Executive Order 13950 prohibits federal contractors from providing any workplace training that “inculcates” in their employees “any form of race or sex stereotyping or race or sex scapegoating.” “The term “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”

As of November 21, 2020, all government contracting agencies must include in every contract certain language attesting to this requirement; and federal contractors must also include this language in contracts with their subcontractors and vendors. Employers must also send this notice to their unions and post it in the workplace. Any violation of the executive order risks losing their federal contracts.

Importantly, the Executive Order does not change any employer’s obligations under Title VII of the Civil Rights Act of 1964, including prohibitions against discrimination based on any protected category. Employers can and should still provide employees with training to eliminate the existence of and potential for discrimination in the workplace. However, federal contractors, subcontractors, and vendors must now be careful of the content in the training provided. The Executive Order establishes a reporting hotline for employees to report their employers for violating the Executive Order.

Additionally, the U.S. Attorney General is required to assess the extent to which workplace training that teaches race or sex scapegoating may contribute to a hostile work environment under federal law. The Attorney General and the Equal Employment Opportunity Commission are also directed to issue publicly available guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII. With a presidential election in full swing, it remains to be seen whether this Executive Order will remain in play for the long term, but at the very least will be in effect for the next few months. Continue to look for updates on this ongoing topic.

Action Items

1. Review the Executive Order here.
2. Have diversity and inclusion training content reviewed for compliance.
3. Have contract templates updated for subcontractors and vendors.
4. Provide notice to unions and display posters of the new requirements.
5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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