In this episode of The Proskauer Brief, partners Harris Mufson and Guy Brenner discuss the Trump administration’s recent Executive Order on Combating Race and Sex Stereotyping, which restricts the concepts that government contractors can include in their employee diversity and awareness training programs.  It also imposes certain penalties and sanctions, including debarment for failure to comply. Tune in as we discuss key considerations for government contractors in the wake of the order.

Harris Mufson: Welcome to The Proskauer Brief: Hot Topics in Labor and Employment Law. I’m Harris Mufson, and on today’s episode I’m joined by my partner Guy Brenner. We’re going to discuss the Trump administration’s recent Executive Order on Combating Race and Sex Stereotyping. So Guy, last month the Trump administration issued an executive order on combating race and sex stereotyping which has garnered a tremendous amount of attention. Can you describe the Order for our listeners and what it does?

Guy Brenner: Sure, Harris. I’m happy to be with you today. Essentially, the executive order does a number of things, but with regards to the government contract community and government contract employers, what it does is restrict the concepts which government contractors can include in their employee diversity and awareness training, and imposes certain penalties and sanctions, including debarment for failure to comply.

Harris Mufson: What sort of concepts are covered by the executive order, in terms of training?

Guy Brenner: The executive order prohibits a list of concepts in training implemented by the federal government contractors. Some are not controversial. For example, the Order bars that teaching one race or sex is inherently superior to another race or sex, which I would certainly hope no one has a problem with. But the Order also includes other concepts that have been read as trying to restrict certain unconscious bias in white privilege training. For example, the Order prohibits training employees that, “An individual by virtue of his or her race or sex is inherently racist, sexist or oppressive whether consciously or unconsciously.” The executive order also prohibits teaching that individuals of a particular sex or race have responsibility for past actions by members of the same race or sex, or that individuals should feel any guilt as a result of their race or sex. Finally, it also prohibits any training that assigns fault, blame or bias to a race or sex, or to a member of a race or sex because of their race or sex. These provisions have been read as aimed at popular unconscious bias in white privilege training.

Harris Mufson: Yeah, I mean in the wake of the George Floyd killing and the sort of nationwide protests and conversations that we are having, a number of companies have been increasing their diversity and inclusion trainings in the wake of that. How does this Order fit within that rubric?

Guy Brenner: Absolutely, Harris. I know you and I have many clients that have been looking for ways to enhance their trainings in recent months in order to address the social movements that we are all aware of. The timing of this Order is viewed as hostile, to some of those enhanced trainings that we have been seeing across the country.

Harris Mufson: What should government contractors do, those who are concerned about this order, in ensuring they comply with it to avoid debarment? What should they be thinking about in terms of practicality?

Guy Brenner: Here are a few things that government contractors who are concerned about this Order should be aware of. The first thing to be aware of is that the prohibitions and the Order only apply to new contracts entered into 60 days after its enactment; so basically, on November 21, 2020, or later. Until you have one of those contracts these prohibitions don’t directly apply to you. Now, one caveat to that is that the Order requires the OFCCP to set up a hotline to accept complaints about violations of the Order or other violations. That hotline is already in place. The OFCCP has stated that even if you are not subject to the Order, because you don’t have a new contract, trainings that violate the order could also violate some of the other provisions that are regulated by the OFCCP, like Executive Order 11246. So while only contractors with new contracts will be subject to these prohibitions expressly, all contractors need to be aware of them and understand that they could be investigated if an employee submits a complaint to the hotline.

The second thing that contractors should be thinking about when they are thinking about what this Order means to them and what they want to do; particularly, do they want to enter into any new contracts with the government that contain these provisions? I hate to speculate about anything, particularly politics – but, in the event there is a change in the administration, it’s a fairly good bet that the Order is going to be rescinded. The contractors may want to wait and see what happens in November. Hopefully, we will know where we are going in November, before making any decisions about how to handle the new contracts with the government and their strategy for moving forward.

Finally, contractors should look carefully at the letter; the specific text of the Order. I think when they do, they will find that they should be able to comply with the letter of the Order, even if they don’t comply with its spirit or its perceived spirit. For example, if employees are trained that unconscious bias is the result of people’s experiences as opposed to an inherent part of a particular person’s race, then training should comply with that element of the Order. Contractors may be able to get comfortable that they can still do the training that they’ve been doing and still comply with the Order, or at least be comfortable that the risk is minimal.

Harris Mufson: All excellent points. Thanks, Guy. As always your insight is really valuable here. Thank you for joining us on The Proskauer Brief today. Stay tuned for more insights on the latest topics in labor and employment law.