Policy Update: President Trump Releases Executive Order on “Race and Sex Stereotyping” Impacting Federal Grants and Contractors

On September 22, President Trump released an Executive Order (EO), entitled “Executive Order on Combating Race and Sex Stereotyping.”  The EO has implications for federal agencies, grantees, and contractors and is a follow-up to a September 4 executive memorandum, M-20-34, which directed executive branch agencies to end trainings on topics such as “critical race theory,” and “white privilege.”  The purpose of the September 22 executive action is to “combat offensive and anti-American race and sex stereotyping and scapegoating,” and “divisive concepts.”  The EO charges that workplace diversity trainings and efforts to address bias and privilege are not to be supported with Federal funding.  This EO is widely perceived to be political messaging by the President leading up to the November election and is likely to be challenged in court as potentially unconstitutional and in conflict with civil rights and state laws.  Similar efforts, such as targeting federal funding to “sanctuary cities,” have failed to hold up in court.

The EO directs federal agencies to review all grant programs under their jurisdiction that could include, as a condition of receipt, a certification by the grant recipient that the Federal funds would not be used to promote concepts such as, “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; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) 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 states an exception for discussing these concepts in a “larger course of academic instruction” in an objective manner and without endorsement.  Each agency would assign at least one senior political appointee to ensure compliance with the EO.

Some agencies, such as the Air Force, have already begun implementing the September 4 memorandum by cancelling contracts with outside organizations that have been providing diversity training.  Under the September 22 EO, federal contracting agencies will be required to insert a contract clause addressing race and sex stereotyping into contracts entered into 60 days from September 22, 2020.  Contractors, if noncompliant, would risk having contracts cancelled, terminated, or suspended and may become ineligible for future federal contracts.  Contractors would have to notify any subcontractors, labor unions or workers’ representatives of these requirements.  The Department of Labor (DOL) would be tasked through its Office of Federal Contract Compliance Programs (OFCCP) with establishing a hotline and investigating complaints of noncompliance.  OFCCP would be directed to solicit comments via the Federal Register from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding programming.  The EO does not state what OFCCP should do with submissions.

Federal grant recipients and contractors will have concerns about whether diversity and inclusion and sexual harassment trainings provided to their employees will preclude them from federal funding.  While the EO directs the executive branch to “issue guidance and directives pertaining to agency obligations under, and ensuring compliance with, this order;” at this time, the EO contains no provisions for grant agencies to promulgate regulations to enforce it.  There are numerous concerning provisions in the EO, however; given that similar EOs and executive actions have faced successful legal challenges, this EO may face a similar fate.  Absent federal regulations or further guidance, it is uncertain how organizations should respond but recipients of federal funding should be alert for possible updates from federal agencies.  Lewis-Burke will continue to monitor and provide updates.

ASPB is engaged in an effort to respond to the EO in collaboration with other STEM societies and has signed on to two multisociety letters opposing the EO (read more).

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