This update follows the September 24 Lewis-Burke note “Policy Update: President Trump Releases Executive Order on ‘Race and Sex Stereotyping’ Impacting Federal Grants and Contractors.”
Background
On September 4, the White House Office of Management and Budget (OMB) issued memorandum M-20-34, which directed executive branch agencies to end trainings on topics such as “critical race theory,” and “white privilege.” On September 22, President Trump released Executive Order (EO) 13950, entitled “Executive Order on Combating Race and Sex Stereotyping.” The purpose of the September 22 executive action is to “combat offensive and anti-American race and sex stereotyping and scapegoating,” and “divisive concepts” and includes restrictions on federal contractors and federal grant recipients. On September 28, OMB issued memorandum M-20-37, which addressed the September 4 OMB memo and the September 22 EO. The September 28 OMB memo states:
“Federal contractors are to be required to represent that they will not conduct such trainings for their own employees, with potential sanctions for noncompliance. Agencies are to review their grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the divisive concepts set forth in the E.O.”
The September 28 memo directs federal agencies to review internal trainings, “for terms including, but not limited to: ‘critical race theory,’ ‘white privilege,’ ‘intersectionality,’ ‘systemic racism,’ ‘positionality,’ ‘racial humility,’ and ‘unconscious bias.” While these terms in and of themselves would not disqualify a training, they provide examples of the trainings that could violate the September 22 EO and the September 4 OMB memo.
The September 28 memo also directs federal funding agencies to “look at all Federal grant and cooperative agreement programs, not just those for the purposes of providing training.” Federal agencies are directed to update their guidance, “to ensure that future notice of funding opportunities and the terms and conditions of Federal awards restrict the use of Federal funds, including funds to meet cost share requirements, from being used to promote the divisive concepts set forth in the E.O. (including by conducting research premised upon these concepts), to the extent consistent with the statute(s) governing the grant program and all other applicable law.”
DOL Complaint Hotline
To date, it appears that the only federal agency guidance that has been released is from the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP). The September 22 EO directed OFCCP to set up a hotline and investigate complaints received under both EO 13950, “Executive Order Combating Race and Sex Stereotyping,” issued on September 22, 2020, and EO 11246. EO 11246 was issued in 1965 to ensure equal opportunity for minorities in federal contractors’ employment practices. While the September 22 EO applies to federal contracts and grants entered into after November 21, 2020, OFCCP will investigate complaints filed under the decades-old EO 11246. OFCCP will also publish, as directed by the September 22 EO, a request for information (RFI) from Federal contractors regarding trainings and programming provided to employees that may violate EO 11246 or EO 13950. That RFI is expected to be published by October 22. A potential example of OFCCP acting on the September 22 EO is evident in a disclosure from Microsoft that it received a letter from OFCCP in response to its announced commitment to “double the number of Black and African American people managers, senior individual contributors and senior leaders in our U.S. workforce by 2025.” Microsoft states that its initiative complies with federal employment law.
Reactions to EO
In general, the response to these executive actions has been mixed. Some federal contractors and institutions of higher education have chosen to pause diversity trainings and review employee programming. Several higher education associations and organizations have sent a letter to the Administration calling for EO 13950 to be withdrawn. The viability of the EO is uncertain. A change in Administration and legal challenges could lead to the EO being rescinded. These legal challenges could include violations of rulemaking procedures, lack of congressional input, or violations of the First Amendment. Federal grant recipients and contractors should remain alert for communications from federal grant agencies as to any implementation efforts. Organizations may want to evaluate their diversity, equity, and inclusion programs in light of the EO. Further regulatory and legal challenges, however, are likely needed before organizations consider significant adjustments.
Sources and Additional Information:
- The September 4 OMB Memo is available at https://www.whitehouse.gov/wp-content/uploads/2020/09/M-20-34.pdf.
- The September 28 OMB memo is available at https://www.whitehouse.gov/wp-content/uploads/2020/09/M-20-37.pdf.
- The September 22 EO 13950 “Executive Order on Combating Race and Sex Stereotyping” can be found at https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/.
- The OFCCP guidance on EO 13950 is available at https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950#Q1.
From “Executive Order on Combating Race and Sex Stereotyping”
Sec. 2. Definitions. For the purposes of this order, the phrase: (a) “Divisive concepts” means the concepts that
(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 term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.