Employing Alabama

On September 22, 2020, President Trump issued an Executive Order which prohibits government contractors from conducting training which it calls “race and sex stereotyping and scapegoating.”  Here is a link to the Executive Order: Order on Race and Sex Stereotyping

What Training is Prohibited?

Every new federal contract must include a clause that prohibits training by government contractors for employees on the following “divisive concepts”:

1.  One race or sex is inherently superior to another race or sex;
2.  The United States is fundamentally racist or sexist;
3.  An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
4. An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
5. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
6. An individual’s moral character is necessarily determined by his or her race or sex;
7. 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;
8.  Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or,
9. Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The order also prohibits training that includes “race or sex stereotyping,” which 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.”  Additionally, training cannot include “race or sex scapegoating,” which 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.”

While not explicitly called-out, the Order appears to take square aim at stopping diversity training programs teaching about “white privilege” and/or critical race theory.

What Other Obligations Are Imposed On Contractors?

Federal contractors must flow-down the requirements of this Executive Order to their subcontractors and vendors.  It is not clear whether subcontractors must further flow-down these requirements to their subcontractors.

Contractors must post a notice about these training obligations in “conspicuous places” available to employees and job applicants.  Each contracting officer is supposed to give that notice to the contractors.  Contractors must also provide the notice to any applicable labor union.

When Does the Order Become Effective?

The Order’s training prohibitions are supposed to be placed into ever new contract issued on or after November 21, 2020.  It is not clear whether the requirements will be placed into contract renewals.

What Are the Consequences of Violating the Order?

The Order does not mandate any specific penalty if a contractor conducts prohibited training.  Nevertheless, the contractual language notes the possibility of punitive measures such as terminating, suspending, or canceling contracts, and potentially debarring contractors.

What’s Next?

Almost certainly, this order is going to be challenged in court.  In the interim, government contractors should pay close attention to new contracts (and even contract renewals) to determine if the training provisions have been included.  If so, then contractors should carefully review any diversity training to ensure that they do not run afoul of this new order.