On September 22, 2020, President Trump issued an Executive Order (EO) titled “Executive Order on Combating Race and Sex Stereotyping.”  The EO arose because various federal agencies had a private diversity-consulting firm conduct a training session last June titled “Difficult Conversations About Race in Troubling Times.”

Howard Ross, the consultant who created the training, reportedly has billed the federal government more than $5 million for such training since 2006. Since President Trump took office, Mr. Ross personally has conducted at least 17 of these training sessions for federal agencies including the Justice Department, the National Institutes of Health, and the Office of the Attorney General. The training sessions are being accused of being "un-American" and "divisive."

In another situation, Sandia National Laboratories sent all of its white male executives to a mandatory three-day training session in 2018 and 2019 titled the “White Men’s Caucus on Eliminating Racism, Sexism, and Homophobia in Organizations.”

On September 4, 2020, Office of Management and Budget Director Russell Vought, said anything involving “white privilege” or “critical race theory” would be on the chopping block.  “The President has directed me to ensure that Federal agencies cease and desist from using taxpayer dollars to fund these divisive, un-American propaganda training sessions,” Vought wrote. “Executive Branch agencies have spent millions of taxpayer dollars to date ‘training’ government workers to believe divisive, anti-American propaganda. For example, according to press reports, employees across the Executive Branch have been required to attend trainings where they are told that ‘virtually all White people contribute to racism’ or where they are required to say that they ‘benefit from racism,” the memo continued. “We cannot accept our employees receiving training that seeks to undercut our core values as Americans and drive division within our workforce.”

These actions culminated with the EO on September 22, 2020 that not only covers government agencies but also government contractors and subcontractors and certain grant recipients.  It outlines what those organizations cannot include in employee training. It will also require contracting agencies to insert a contract clause in contracts (presumably, from the language of the EO new contracts only) entered into 60 days from September 22, 2020 addressing race and sex stereotyping.

This order states that “[i]nstructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country,” and the Order establishes a requirement that contractors and grant recipients not use any workplace training that “inculcates in its employees” any form of race or sex stereotyping or any form of race or sex “scapegoating.”

The EO prohibits training that includes the following:

• One race or sex is inherently superior to another race or sex

• 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

• 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 Office of Federal Contract Compliance Programs is identified in the EO to  publish a request for information within 30 days of September 22 seeking from federal contractors and subcontractors information regarding training, workshops, or “similar programming” provided to employees, and that those materials, as well as information about the expense, frequency, duration of the trainings be provided to OFCCP.  Contractors that do this training could lose the contract.

The Order further instructs the OFCCP to “…establish a hotline and investigate complaints received under both this order as well as Executive Order 11246 alleging that a Federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders.”

The EO is broad, and there is a need for a better understanding of what the EO really targets.  It is expected that there will be challenges to this EO, and how it plays out is uncertain. The effective date is for new contracts entered after 60 days (November 21), so it should be after the election results are in. If Biden wins, no litigation will likely occur as the EO will be rescinded; if Trump is reelected, then there may be litigation.  ASE will monitor the situation.

Source:  Fortney & Scott 9/25/20, Jackson Lewis 9/23/22, Washington Times 9/4/20, NY Post 9/5/20