Labor & Employment Law Daily Civil rights groups challenge diversity training executive order
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Tuesday, November 10, 2020

Civil rights groups challenge diversity training executive order

By Pamela Wolf, J.D.

The EO serves to censor federal contractors and grantees who wish to present historically accurate information and context to their employees to advance the goals of diversity, equity, and inclusion, the plaintiffs contend.

The National Urban League and National Fair Housing Alliance are challenging President Trump’s controversial Executive Order 13950 of September 22, 2020, “Executive Order on Combating Race and Sex Stereotyping” on the grounds that it violates guarantees of Free Speech, Equal Protection, and Due Process under the First and Fifth Amendments. The civil rights groups, which are represented by the NAACP Legal Defense and Educational Fund, Inc., filed their complaint in federal court in Washington, D.C.

Revisionist history and censorship. The executive order (EO) makes federal contracts contingent upon subscription to a “false and revisionist history” of the United States and “compliance with censorship of what the administration deems ‘Divisive Concepts,’ ‘Race or Sex Stereotyping,’ and ‘Race or Sex Scapegoating,’” according to the plaintiffs. They see the EO as “chillingly punitive, requiring contractors, subcontractors, vendors, and potentially grantees, to comply with exacting speech limitations and submit to the government all plans for diversity and inclusion training to ensure the demand for censorship is satisfied, or risk termination of their contract.”

Wide reach. The EO, which was implemented swiftly, serves to censor federal contractors and grantees who wish to present historically accurate information and context to their employees to advance the goals of diversity, equity, and inclusion, the plaintiffs contend. Because it extends to subcontractors and vendors, the EO has a wide reach.

What is the EO’s purpose? The civil rights groups raise questions about the true intent of the EO. “The very text of the Order confirms that its purpose is not to combat unlawful stereotyping, but to prohibit private entities’ expression of views on race, sex, and gender that take into account the history and persistent discrimination of people of color, women, and the LGBTQ community in order to foster a diverse and inclusive workplace that values all employees,” the complaint states. “EO 13950 imposes the inaccurate and ahistorical viewpoints of the Trump Administration on federal contractors and grantees simply because President Trump disagrees with the Protected Speech.”

Cementing existing inequities. The EO purportedly serves the goal of cementing structural barriers and inequities, according to the complaint. “The Order presents an ahistorical and counterfactual narrative that prohibits consideration of the structural barriers rooted in race and gender discrimination, thereby reinforcing and cementing existing inequalities into a permanent status quo,” the civil rights groups allege. “EO 13950 restricts Protected Speech by proscribing the teaching of ‘divisive concepts’ defined to include vague and subjective categories of speech that might cause an individual to feel ‘discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex’ based on fact-based discussions about structural inequalities.”

Among other things, the EO prohibits workplace training discussing “implicit biases and the collective responsibility of people of all races and sexes to counteract implicit biases, eradicate systemic discrimination, and ensure a hostility-free work environment,” the complaint alleges. As the civil rights groups see it, the EO bars any federal contractor from engaging in speech, including training for employees, that may foster belief in certain concepts that Trump has deemed divisive, “but which are widely-accepted, historically based concepts that have been used for years in trainings and programs across the country in corporate, public sector, and educational settings.”

Business community reaction. Notably, the civil rights groups are not alone in challenging the EO. 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 the 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.”

The case is No. 1:20-cv-03121.

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