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Client Alert: New Executive Order 13950 Prohibits Federal Contractors from Conducting Certain Discrimination Training

On September 22, 2020, President Trump issued Executive Order 13950 (E.O.), which seeks to address race and sex stereotyping in the government workplace and in government contracting.  E.O. 13950 follows the Office of Management and Budget’s guidance from September 4, 2020 directing federal agencies to “identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’” or other racially-focused workplace training and “identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.”

Operating under the assumption that purported race and sex stereotyping promotes division and inefficiency in government operations, E.O. 13950 labels the following as “divisive concepts:”

(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 sex or race;

(7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by 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 E.O. imposes the following requirements on government contractors:

  • Contractors are prohibited from conducting workplace training which “inculcates in its employees” any of the aforementioned “divisive concepts.
  • Contractors must send a notice, which the Contracting Officer will provide, to each labor union or workers’ representative with which the contractor has a collective bargaining agreement to notify them of the contractor’s requirements under the EO.
  • Contractors must post a notice of the EO’s requirements in “conspicuous places available to employees.”
  • Contractors must flow down the EO’s required clauses in their subcontracts and purchase orders.

The E.O. is not self-executing, and thus far, little guidance has been issued advising how the government will implement the E.O., other than providing that all government contracts entered into on or after November 21, 2020 must contain the stated requirements as written in Section 4 of the E.O.  Per the E.O., the government may cancel, terminate, or suspend a contract, in whole or in part, or debar a contractor as a consequence of noncompliance. While the E.O. provides debarment as a possible consequence of non-compliance, the E.O. does not explain how non-compliance would affect a present responsibility determination in a debarment proceeding.

The E.O. directs the Office of Federal Contract Compliance Program, on or before October 22, 2020, to publish a request for information to the Federal Register, seeking comment from federal contractors.

The E.O. has been controversial and may be susceptible to challenge on First Amendment grounds.  Meanwhile, contractors must carefully review new solicitations, awards and change orders for provisions implementing the E.O.  We will continue monitoring any proposed rule amendments effectuating this E.O. and provide further guidance as it becomes available.

For additional questions, contact the authors:

Armani Vadiee
avadiee@smithpachter.com 

Elizabeth N. Jochum
ejochum@smithpachter.com 

Jessica L. Nejberger
jnejberger@smithpachter.com 

Zachary D. Prince
zprince@smithpachter.com 

The authors acknowledge the assistance of Amanda C. DeLaPerriere with the research and drafting of this article.

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