“By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to promote economy and efficiency in Federal contracting, to promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping and scapegoating, it is hereby ordered as follows: …”.
With those opening words in a new 10 page “Executive Order on Combatting Race and Sex Stereotyping” (Executive Order 13950), President Trump ignited a firestorm of discussion last week on all sides of the issue concerning the content of diversity and inclusion training programs. DirectEmployers has not seen its Members react with such immediate and forceful opinions on any other OFCCP or EEO topic in the recent past…with both vocal proponents and detractors of the Order.
Also, for those overwhelmed by the developments of last week, please scroll to the bottom of this Blog to see what you and your company/institution must do now and some new and special resources to help DE Member Companies and non-Member companies meet the new requirements and obtain certification through DE’s newly established “D&I Certification Task Force.”
What Did the Order Do/Not Do?
Executive Order 13950 did not ban or discourage D&I training:
“Executive departments and agencies (agencies), our Uniformed Services, Federal 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.” (p.3)
* * * *
“Sec. 10. General Provisions. (a) This order does not prevent agencies, the United States Uniformed Services, or contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order. (p. 9)
(b) Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.”
Editor’s Note: Section 2(a) of the Order is the definitions section which defines, among other things, “divisive concepts”. (p. 9)
The Order does, however:
- seek to control and limit the content of D&I training federal contractors and subcontractors deliver;
- The Order does not define either term or set contract financial value thresholds to exempt any federal contractors (although coming OFCCP Rules to implement this EO will undoubtedly do so). (pp. 5-6)
- supply federal contracting officers with newly minted contract language and mandate use of the language in all new “Government contracts” (meaning OFCCP-covered contracts, but NOT contracts for Federal Financial Assistance (i.e. “grants”) signed 60 days AFTER September 22, 2020 = Sunday November 22, 2020). (page 5)
Important Note: EO 13950 does NOT retroactively amend existing federal Government contracts already signed before November 22, 2020. Said another way, existing federal Government contractors need to do NOTHING at this time…just when you sign a new contract or renew one on or after Sunday, November 22, 2020.
- directs the heads of all federal agencies to require (what appears will likely be only certain selected) recipients of Federal Financial Assistance to make eight (8) certifications EO 13950 specifies about the content of any D&I training programs the grantees offer to or order employees to attend (p. 7; Section 5).
- directs OFCCP to establish a “hotline” (no deadline set forth) and to investigate complaints that a “Federal contractor” (not just a “federal Government contractor”) is using programs in violation of EO 13950 and to take “appropriate enforcement action and provide remedial relief, as appropriate”. (p. 6; Section 4(b)
- Note: this means violative contractors could face debarments and OFCCP could seek financial payments from “Federal contractors” on behalf of victims of D&I training content in violation of EO 13950 and/or of Executive Order 11246.
- Note: EO 13950 is BROADER than Executive Order 11246, as amended, in three important respects:
- EO 11246 applies only to “Government” contractors while EO 13950 applies some obligations to all “Federal contractors”; and
- EO 13950 expands the obligations of federal contractors and all federal “Government contractors” beyond the obligations EO 11246 otherwise imposes, and
- EO 13950 now directs OFCCP to keep in its complaint inventory and to investigate all Complaints arising under EO 13950 (thus not permitting OFCCP to refer these individual complaints over to the EEOC for potential investigation.)
- Note: Assuming OFCCP does not narrow the scope of its authority in implementing Rules OFCCP will now have to publish to implement EO 13950, OFCCP will now face the prospect of expanding its jurisdiction over ALL federal contractors for the purposes of EO 13950, and not just “Government contractors”.
- direct OFCCP to “within” 30 days of September 22, 2020 (which DirectEmployers calculates to be on or before Thursday October 22) publish an information request in the Federal Register “seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees. The request for information should request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.” (pp. 6-7)
What Motivated the Order?
EO 13950 identified the galvanizing events which gave rise to the Order, as follows:
“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, even in components of the Federal Government and among Federal contractors.” (p.2)
With that introduction, the Order described D&I training materials at four federal agency and federal contractor locations which ignited President Trump’s Order:
- “For example, the Department of the Treasury recently held a seminar that promoted arguments that “virtually all White people, regardless of how ‘woke’ they are, contribute to racism,” and that instructed small group leaders to encourage employees to avoid “narratives” that Americans should “be more color-blind” or “let people’s skills and personalities be what differentiates them.” (p. 2)
- “Training materials from Argonne National Laboratories, a Federal entity, stated that racism “is interwoven into every fabric of America” and described statements like “color blindness” and the (sic) “meritocracy” as “actions of bias.” (p. 2)
- “Materials from Sandia National Laboratories, also a Federal entity, for non-minority males stated that an emphasis on “rationality over emotionality” was a characteristic of “white male[s],” and asked those present to “acknowledge” their “privilege” to each other.” (p. 2)
- “A Smithsonian Institution museum graphic recently claimed that concepts like “[o]bjective, rational linear thinking,” “[h]ard work” being “the key to success,” the “nuclear family,” and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” The museum also stated that “[f]acing your whiteness is hard and can result in feelings of guilt, sadness, confusion, defensiveness, or fear.” (p. 3)
In defense of the principle of merit in the workplace, the Order noted that:
“Our Federal civil service system is based on merit principles. These principles, codified at 5 U.S.C. 2301, call for all employees to “receive fair and equitable treatment in all aspects of personnel management without regard to” race or sex “and with proper regard for their . . . constitutional rights.” Instructing Federal employees that treating individuals on the basis of individual merit is racist or sexist directly undermines our Merit System Principles and impairs the efficiency of the Federal service. Similarly, our Uniformed Services should not teach our heroic men and women in uniform the lie that the country for which they are willing to die is fundamentally racist. Such teachings could directly threaten the cohesion and effectiveness of our Uniformed Services.” (p. 3)
A fundamental concept underpinning the Order is its view that the types of D&I trainings the Order calls out and prohibits going forward:
“…promote division and inefficiency when carried out by Federal contractors. The Federal Government has long prohibited Federal contractors from engaging in race or sex discrimination and required contractors to take affirmative action to ensure that such discrimination does not occur. The participation of contractors’ employees in training that promotes race or sex stereotyping or scapegoating similarly undermines efficiency in Federal contracting. Such requirements promote divisiveness in the workplace and distract from the pursuit of excellence and collaborative achievements in public administration.”
Here is the Policy the Order Set Down Affecting Government Contractors
“Therefore, it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.” (p.4)
Important New Definitions
- “Divisive concepts” means the concepts that:
- one race or sex is inherently superior to another race or sex;
- the United States 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 “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.” (p .4)
- “Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex. (p. 4)
- “Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others. (pp. 4-5)
What “Government” Contractors Must Do Now
Important: please note the shift in language from “federal contractor” to now “Government contractor”. (A “Government” contractor is a legally defined creature…i.e. the ones among all federal contractors over which OFCCP has jurisdiction. Note: OFCCP’s Rules exempt thousands of federal contractors from its jurisdictional reach).
Section 4 of the Order prescribes “Do” and “Don’t” requirements for federal contractors.
Section 5 of the Order prescribes “Do” and “Don’t” requirements for federal grantees (applicable to many construction contractors and universities and colleges).
Section 6 of the Order prescribes requirements for federal agencies (not discussed here).
Section 4(a) of EO 13950 is important because it imposes obligations beginning in 60 days (on and after Sunday November 22, 2020) which will attach to all new federal Government contracts BY OPERATION OF THE CONTRACT and not by operation of OFCCP Rules. So, this is the place to read about these new coming requirements for federal Government contractors. Accordingly, we quote this text verbatim from EO 13950:
“Sec. 4. Requirements for Government Contractors. (a) Except in contracts exempted in the manner provided by section 204 of Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity), as amended, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:
“During the performance of this contract, the contractor agrees as follows:
- 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 (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) 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; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) 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 “race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex, and the term “race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.
- The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
- In the event of the contractor’s noncompliance with the requirements of paragraphs (1), (2), and (4), or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order of September 22, 2020, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246, and such other sanctions may be imposed and remedies invoked as provided by any rules, regulations, or orders the Secretary of Labor has issued or adopted pursuant to Executive Order 11246, including subpart D of that order.
- The contractor will include the provisions of paragraphs (1) through (4) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.”
Note RE Timing: EO 13950 is effective immediately (p. 9; Section 9), except that “the requirements of Section 4 of this order shall apply to contracts entered into 60 days after the date of this order.” (Again, DirectEmployers calculates the date federal Government contracting officers will begin to insert the new language EO 13950 mandates in federal Government contracts over which OFCCP has jurisdiction to be on and after Sunday, November 22).
Section 5 of EO 13950 applies to “Federal Grants” (i.e. applicable to those companies and institutions which sign federal contracts for “Federal Financial Assistance”; i.e. “grants”). Section 5 reads verbatim as follows (without any editing):
“Sec. 5. Requirements for Federal Grants. The heads of all agencies shall review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use Federal funds to promote the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) 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; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. Within 60 days of the date of this order, the heads of agencies shall each submit a report to the Director of the Office of Management and Budget (OMB) that lists all grant programs so identified.” (p. 7)
Special Note RE Timing of New Grant Restrictions Pursuant to EO 13950
EO 13950 does not prescribe a date after which federal grantees will have to make the eight certifications Section 5 of EO 13950 prescribes. Rather, “within” 60 days from September 22, 2020 (i.e. on or before Sunday, November 22, 2020), EO 13950 requires all federal Executive Branch agencies to file a Report with OMB listing all grant programs for which the agency may, as a condition of receiving such a grant, require the recipient to make the eight certifications Section 5 of EO 13950 allows the federal Executive Branch agencies to require of grantees. Presumably, OMB would then issue further instructions to the federal Executive Branch agencies (perhaps in the new year 2021) as to how they may and must proceed as to contracts for federal grants.
What Contractors/Grantees Need to Do Now
- For those companies preparing to sign new, or to renew, federal Government contracts or federal Government subcontracts on or after Sunday November 22, you should carefully review the Section 4(a) and 4(b) requirements of EO 13950 and prepare to comply with them before you must sign the contract or contract renewal, if your company is not already compliant with EO 13950.Strategy Consideration: If potential compliance with Section 4(a) and 4(b) of EO 13950 is a “big lift” for your institution or company to determine, for whatever reason, you may wish to consider signing or renewing your federal Government contract BEFORE November 22. This strategy would either buy you needed time to investigate your D&I training program(s) for either (a) a full year when your contract will next thereafter come up for renewal, or (b) until your next contract comes up for renewal AFTER November 22, 2020 (for those of you working for companies signatory to more than one federal Government contract);
- Federal Government Contractors/Subcontractors should also be on the lookout for OFCCP’s Information Collection Request (“ICR”) OFCCP will publish between now and October 22, 2020 seeking information and copies of your D&I training materials. Compliance with the expected coming requests for copies of your D&I training materials and information about the frequency, size and cost of your programs will presumably be voluntary, you may wish to consider now whether you wish to participate. If so, you may want to start gathering the information and documents now depending on how large an effort that is within your organization. On the other hand, it would be equally prudent to wait for another, probably, three weeks, to see exactly what OFCCP’s ICR will seek and whether it is mandated or in your discretion to supply to OFCCP either with or without corporate branding. A number of DE Member companies have reported that they are going to sit back, do nothing, let the dust settle a bit after a very strenuous week of discussion about EO 13950 and see where all this goes in the next three weeks.
- For Federal Grantees, you have nothing to do at this time. However, we suggest you retrieve and review a copy of all program materials handed out at D&I training events to see whether your company or institution could certify your company’s or institution’s compliance with each of the eight certifications Section 5 of EO 13950 may eventually ask your company or institution to make. On the other hand, too, it would not violate any requirement within EO 13950 if you, too, just sat back, did nothing, let the dust settle a bit after a very strenuous week of discussion about EO 13950 and see where all this goes in the next 60+ days as to federal grantees. Remember, you are on a different timeline from federal Government contractors and it is not clear that all federal grants will be subject to EO 13950 certification requirements. Also, if your company is BOTH a federal Government contractor AND a grant recipient, your company or institution will have to comply with both requirements: those for federal Government contractors and those for federal grantees.
What to Do If You Are Lost or Drowning (Regis, I Want to Use My Lifeline!)
Taapestry, DirectEmployers Association’s Affirmative Action Plan development and OFCCP advice group, has established a special “D&I Certification Task Force”. Co-Chaired by Tony Perkins, VP in charge of Taapestry, and Jay J. Wang, Esq of Fox, Wang & Morgan P.C., DE’s D&I Certification Task Force is now available to:
- provide compliance advice to companies to assist them to comply with Executive Order 13950,
- review existing corporate D&I training programs for compliance with EO 13950;
- supply D&I training programs compliant with EO 13950, and
- with Jay Wang’s help, issue certifications of compliance with EO 13950 if you are in the market for a third-party certification of compliance.
You may contact Tony Perkins now at firstname.lastname@example.org or at (317) 874-9013.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
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