Government Contracts EO Creates New Clause Addressing Diversity and Inclusion Training
Monday, October 12, 2020

EO Creates New Clause Addressing Diversity and Inclusion Training

By Government Contracts Editorial Staff

President Trump has issued Executive Order 13950 intended to put an end to what he characterizes as “training sessions based on race and sex stereotyping and scapegoating” in the federal workforce, the uniformed services, and among contractors. The EO states that “many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual.” According to the EO, “[t]his ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.” Under the White House’s interpretation of existing practice, instructors and materials teaching that “men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country,” including in components of the government and among contractors.

Stereotyping and Scapegoating. The EO sets forth a policy “not to promote race or sex stereotyping or scapegoating” in the federal workforce and the uniformed services, and to prevent grant funds from being used for these purposes. Also, contractors “will not be permitted to inculcate such views in their employees.” The EO further notes that executive departments and agencies, the uniformed services, contractors, and federal grant recipients “should, of course, continue to foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics. Training employees to create an inclusive workplace is appropriate and beneficial. The Federal Government is, and must always be, committed to the fair and equal treatment of all individuals before the law.”

Contract Clause. Except in contracts exempted in the manner provided by Section 204 of Executive Order 11246, as amended, all government contracting agencies must, 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.” The EO defines “divisive concepts” as those providing that:

  • One race or sex is inherently superior to another race or sex;
  • The U.S. is fundamentally racist or sexist;
  • An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • An individual’s moral character is necessarily determined by his or her race or sex;
  • 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;
  • Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • 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.” The clause must be included in “every Government contract hereafter entered.” Contractors that do not comply may have their contracts canceled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further government contracts.

Complaint Hotline. The Department of Labor, through its Office of Federal Contract Compliance Programs, must establish a hotline and investigate complaints received under both the new EO and EO 11246 alleging that a contractor is utilizing training programs in violation of the contractor’s obligations under those orders. The DOL may take enforcement action and provide remedial relief, as appropriate.

Government Training. Finally, the EO requires agency heads to use their authority under 5 USC 301, 302, and 4103 to ensure that the agency, agency employees while on duty status, and any contractors hired by the agency to provide training, workshops, forums, or similar programming to agency employees do not teach, advocate, act upon, or promote in any training to agency employees any “divisive concepts” as defined in the order. Agency diversity and inclusion efforts must also encourage agency employees not to judge each other by their color, race, ethnicity, sex, or any other characteristic protected under federal law.

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