Labor & Employment Law Daily Business groups urge President Trump to withdraw diversity training order
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Tuesday, October 20, 2020

Business groups urge President Trump to withdraw diversity training order

By Pamela Wolf, J.D.

The “E.O. is already having a broadly chilling effect on legitimate and valuable D&I training companies use to foster inclusive workplaces, help with talent recruitment, and remain competitive in a country with a wide range of different cultures.”

President Trump’s September 22 “Executive Order on Combating Race and Sex Stereotyping” is not playing well among the business community. In an October 15 letter to the President (and copied to Labor Secretary Eugene Scalia), the U.S. Chamber of Commerce and a coalition of similar state and local organizations and other business groups expressed concerns over the impact of order.

“As currently written, we believe the E.O. will create confusion and uncertainty, lead to non-meritorious investigations, and hinder the ability of employers to implement critical programs to promote diversity and combat discrimination in the workplace,” the business coalition wrote. “We urge you to withdraw the Executive Order and work with the business and nonprofit communities on an approach that would support appropriate workplace training programs.”

Restrictions on diversity training. President Trump’s executive action was intended to put an end to what he characterized as “training sessions based on race and sex stereotyping and scapegoating” in the federal workforce, the Uniformed Services, and among federal contractors (see Trump takes action to restrict diversity training, September 23, 2020). Some saw it as part and parcel of Trump’s stated plan to promote “patriotic education.”

Government contractors hit hard. As pertains to government contractors, many of whom are members of the business coalition organizations, the EO directs government contracting agencies to, among other things, include in every government contract specific language, including that the contractor “shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts” that are specifically delineated in the EO as “divisive.”

What are “division concepts”? They are concepts that:

1. One race or sex is inherently superior to another race or sex;
2. The U.S. 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 also includes “any other form of race or sex stereotyping or any other form of race or sex scapegoating.”

Serious consequences for noncompliance. Notably, the contracts of contractors that do not comply may be canceled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further for government contracts.

Ambiguous and subjective. According to the business coalition, the specific concepts identified in the EO as prohibited, “leaves considerable ambiguity as to what content would not be permitted in diversity and inclusiveness (D&I) training.” The business coalition also points out that there is “a great deal of subjectivity around how certain content would be perceived by different individuals.” Here the business coalition focuses on the E.O.’s definition of “divisive concepts,” which it says leaves many gray areas and will likely result in many different interpretations.

Suspension of training in response. “Because the ultimate threat of debarment is a possible consequence, we have heard from some companies that they are suspending all D&I training,” which is “contrary to the E.O.’s stated purpose, but an understandable reaction given companies’ lack of clear guidance,” the coalition letter states. “Thus, the E.O. is already having a broadly chilling effect on legitimate and valuable D&I training companies use to foster inclusive workplaces, help with talent recruitment, and remain competitive in a country with a wide range of different cultures.”

Concerns about the hotline. The coalition letter also raises concerns by the employee complaint hotline that is established under the EO. “Employers are concerned that this will invite non-meritorious complaints from employees who may be disgruntled about a range of different matters,” wrote the business coalition. “Also, because of the ambiguity and subjective nature of the key terms that define what training materials are not allowed, whether the training material in question is compliant could very well depend on the outlook of the person filing the complaint.”

The business coalition also noted that training sessions often involve discussions between participants, and things that are heard during these discussions “could easily form the basis of a complaint even though they are not part of the official course materials.”

Other issues. The coalition letter also raises concerns about how multi-national companies that are federal contractors should proceed with training for employees outside the United States. The letter expresses concerns about the use of the federal procurement and contracting process to address issues unrelated to goods or services being purchased by the government. “Such an approach effectively creates two sets of rules, one for those companies that do business with the government and another for those that do not,” the business coalition said.

“Federal contractors are firmly committed to maintaining a diverse and inclusive workforce and to providing their employees the necessary training to reinforce this goal,” the business coalition wrote. “The Executive Order on Combating Race and Sex Stereotyping does not help contractors in this regard, and in fact creates several significant obstacles and impediments.”

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