On his first day in Office, President Biden issued Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (“Executive Order”), stating that “[i]t is . . . the policy of [his] Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all.” The Executive Order revokes President Trump’s Executive Order 13950, which had imposed restrictions on workplace diversity training under the guise of combatting race and sex stereotyping.

As we reported in our October 20, 2020 Act Now Advisory, Executive Order Prohibits Inclusion of “Divisive” Concepts in Workplace Training, Executive Order 13950 prohibited federal government contractors, as well as federal agencies, the military, and recipients of federal grants, from using a workplace training program that “inculcates in [their] employees any form of race or sex stereotyping or any form of race or sex scapegoating.”  While training employees to create an inclusive workplace was deemed appropriate and beneficial, programs that appeared to support concepts such as implicit bias, systemic racism, white privilege, male privilege, and the idea that the United States is a racist country, were not.

The new Executive Order requires the heads of federal agencies, within 60 days of the date of the Order (i.e., March 21, 2021), to consider suspending, revising, or rescinding any action related to or arising from Executive Order 13950.  In response, the United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) announced on January 27, 2021, the specific additional steps it was taking, including:

• Rescinding the Frequently Asked Questions section related to Executive Order 13950.

• Eliminating the telephone hotline and email address set up to receive complaints relating to Executive Order 13950.

• Administratively closing any complaints regarding alleged noncompliance with Executive Order 13950.

• Not enforcing any of the provisions of Executive Order 13950 contained in any federal government contracts or subcontracts.

Accordingly, federal government contractors and grant recipients may resume their workplace diversity training programs without restriction.