Labor & Employment Law Daily Biden revokes predecessor’s ban on diversity training, makes equity federal government policy
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Monday, January 25, 2021

Biden revokes predecessor’s ban on diversity training, makes equity federal government policy

By Pamela Wolf, J.D.

Instead, the Biden Administration is taking steps to ensure “a comprehensive approach to advancing equity for all.”

Amid a flurry of executive actions taken on his first day as President on January 20, 2021, Joe Biden revoked the Trump Administration’s Executive Order 13950 of September 22, 2020, “Combating Race and Sex Stereotyping”—dubbed a ban on diversity training—which had been poorly received even by the business community as difficult to discern, too vague to implement, and likely to prompt unwarranted complaints.

Policy declaration. In his “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” President Biden declared it the policy of his Administration that the federal government “should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” The Executive Order (EO) makes affirmatively advancing equity, civil rights, racial justice, and equal opportunity the responsibility of the whole federal government. “Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies (agencies) must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity,” the EO states.

Advancing equity across the federal government will create opportunities for the improvement of communities that have been historically underserved, which benefits everyone, according to the EO, which pointed to an analysis showing that closing racial gaps in wages, housing credit, lending opportunities, and access to higher education would amount to an additional $5 trillion in gross domestic product in the American economy across the next five years. The goal of the federal government in advancing equity is to provide everyone with the opportunity to reach their full potential. Accordingly, each agency must assess whether, and to what extent, its programs and policies “perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups,” in order to better equip agencies to develop policies and programs that deliver resources and benefits equitably to all.

Definitions. The EO defines “equity” to mean “the consistent and systematic fair, just, and impartial treatment of all individuals,” including those who belong to underserved communities that have been denied such treatment, such as:

  • Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders, and other persons of color;
  • Members of religious minorities;
  • Lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons;
  • Persons with disabilities;
  • Persons who live in rural areas; and
  • Persons otherwise adversely affected by persistent poverty or inequality.”

The term “underserved communities” means populations sharing a particular characteristic, as well as geographic communities that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life, as exemplified by the list iterated in the definition of “equity.”

Domestic Policy Council. The White House Domestic Policy Council (DPC) will coordinate the formulation and implementation of the Biden Administration’s domestic policy objectives. The DPC will coordinate efforts to embed equity principles, policies, and approaches across the federal government, including efforts to remove systemic barriers to and provide equal access to opportunities and benefits, identify communities that the federal government has underserved, and to develop policies designed to advance equity for those communities. The DPC-led interagency process will ensure that these efforts are made in coordination with the directors of the National Security Council and the National Economic Council.

Study on methods of assessing equity. The EO directs the Office of Management and Budget (OMB) Director, in partnership with agency heads, to study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals. Within six months, the OMB Director must deliver a report to the President describing the best practices identified by the study and, as appropriate, recommending approaches to expand use of those methods across the federal government.

Conducting equity assessments at federal agencies. The EO further directs each agency head or designee, in consultation with the OMB Director, to select certain of the agency’s programs and policies for a review assessing whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available under those policies and programs. Each agency head or designee must provide a report to the Assistant to the President for Domestic Policy (APDP) reflecting findings on the following:

1. Potential barriers that underserved communities and individuals may face to enrollment in and access to benefits and services in federal programs;
2. Potential barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities;
3. Whether new policies, regulations, or guidance documents may be necessary to advance equity in agency actions and programs; and
4. The operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.

Allocating federal resources. President Biden also directed that the federal government should, consistent with applicable law, allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities, as well as individuals from those communities. To this end the OMB Director must identify opportunities to promote equity in the budget that the President submits to the Congress. The OMB Director also shall, in coordination with the agency heads, study strategies, consistent with applicable law, for allocating federal resources in a manner that increases investment in underserved communities, as well as individuals from those communities, and report the findings of this study to the President.

Promoting equitable benefits delivery and equitable opportunities. The EO states that government programs are designed to serve all eligible individuals; government contracting and procurement opportunities should be available on an equal basis to all eligible goods and services providers. To meet these objectives and to enhance compliance with existing civil rights laws:

  • Within one year, each agency head must consult with the APDP and the OMB Director to produce a plan for addressing any barriers to full and equal participation in programs identified pursuant to this order, and any barriers to full and equal participation in agency procurement and contracting opportunities identified under this order.
  • The Administrator of the U.S. Digital Service, the United States Chief Technology Officer, the Chief Information Officer of the United States, and other agency heads or their designees, must take necessary actions, consistent with applicable law, to support agencies in developing such plans.

Engaging underserved communities. In carrying out the EO, agencies are directed to consult with members of communities that have been historically underrepresented in the federal government and underserved by, or subject to discrimination in, federal policies and programs. Each agency head is charged with evaluating opportunities, consistent with applicable law, to increase coordination, communication, and engagement with community-based organizations and civil rights organizations.

Data Working Group. President Biden noted that many federal datasets are not disaggregated by race, ethnicity, gender, disability, income, veteran status, or other key demographic variables, which has cascading effects and impedes efforts to measure and advance equity. A first step to promoting equity in government action is to gather the data necessary to inform that effort. The EO thus establishes an Interagency Working Group on Equitable Data (Data Working Group).

The DPC will work closely with the Co-Chairs of the Data Working Group and assist in the Data Working Group’s interagency coordination functions. The Data Working Group will consult with agencies to facilitate the sharing of information and best practices, consistent with applicable law.

Functions. The Data Working Group will, through consultation with agencies, study and provide recommendations to the APDP identifying inadequacies in existing federal data collection programs, policies, and infrastructure across agencies, and strategies for addressing any deficiencies identified. It will also support agencies in implementing actions, consistent with applicable law and privacy interests, that expand and refine the data available to the federal government to measure equity and capture the diversity of the American people.

Trump EOs revoked. In his executive order, President Biden also revoked EO 13950 of September 22, 2020, “Combating Race and Sex Stereotyping,” and ordered agency heads covered by the now-revoked order to review and identify proposed and existing agency actions related to or arising from EO 13950. Within 60 days, each agency head must consider suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants pursuant to EO 13950, as appropriate and consistent with applicable law.

The largest federal employees’ union immediately reacted to the EO’s revocation: “Diversity and inclusion programs help employees understand each other’s perspectives and help employers build workplaces that treat everyone with dignity, fairness, and respect, regardless of their background,” AFGE National President Everett Kelley said in a statement. “By revoking the previous administration’s order eliminating such trainings, President Biden is affirming his commitment to advancing equity across the federal government and providing everyone with an opportunity to reach their full potential.”

President Biden also revoked the Trump Administration’s EO 13958 of November 2, 2020, “Establishing the President’s Advisory 1776 Commission.”

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