Presidential Executive Order Prohibits Promoting “Divisive” Race and Diversity Concepts by Federal Contractors and in Federal Grant Programs

On September 22, 2020, President Trump issued Executive Order 13950, Combating Race and Sex Stereotyping. The stated purpose of the Executive Order is to discourage the promotion of “race or sex stereotyping or scapegoating” concepts because they cause division and inefficiency. Executive Order 13950 announces that it will be federal public policy not to promote race or sex stereotyping or scapegoating in the federal workforce or the armed services and not to allow federal grant funds to be used for these purposes.

“Race or sex stereotyping” is defined in the Executive Order as ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to an entire race or sex, or to individuals because of their race or sex. “Race or sex scapegoating” is defined as assigning fault, blame, or bias to a race or sex, or to members of a race or sex, because of their race or sex and specifically includes any claim that, consciously or unconsciously, and by virtue of their 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.

The Executive Order provides that federal contracts entered into commencing 60 days after the Executive Order shall contain provisions prohibiting contractors from using any workplace training that inculcates in its employees any form of “race or sex stereotyping” and requiring contractors to notify their unions and include the terms of the Executive Order in any subcontracts.

With respect to federal grants, the Executive Order mandates that, within 60 days of the Executive Order, the heads of federal agencies, like the U.S. Department of Education, must review their respective grant programs and identify programs for which they may require grant recipients to certify that grant funds are not used 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.

The Executive Order notes that it does not prohibit discussing the “divisive concepts” listed in the Executive Order as part of a larger course of academic instruction in an objective manner without endorsement. A DOL FAQ issued following the Executive Order further clarifies that unconscious or implicit bias trainings are prohibited to the extent they teach or imply that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously. However, the FAQ makes clear that diversity and inclusion trainings are not prohibited if they are designed to inform staff, or foster discussion, about pre-conceptions, opinions, or stereotypes that people, regardless of their race or sex, may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive. 

Lastly, the Executive Order states that the Attorney General should continue to assess the extent to which workplace training teaching the “divisive concepts” outlined in the Executive Order may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964. The U.S. Attorney General and the EEOC are directed to issue publicly available guidance to assist employers in “better promoting diversity and inclusive workplaces consistent with Title VII.” Title VII prohibits employment discrimination based on race, color, religion, sex, including sexual harassment, and national origin.

The Executive Order provides that it is effective immediately. Thus, even though we will not know for at least 60 days which federal programs will require grant recipients to certify compliance, it is possible that workplace trainings occurring even before that date could give rise to Title VII complaints under the policy statement outlined in this Executive Order. The full scope of applicability of this Executive Order to school districts and other entities receiving federal grant funds will not be known until the individual federal agencies identify the programs in which certifications of compliance may need to be submitted and additional guidance is issued.

School districts should consult with their legal counsel on any questions regarding compliance of current workplace diversity and inclusion training programs with the Executive Order. Contact your HLERK Labor/Personnel attorney with your training questions and Heather Brickman with questions related to federal grant issues.

Source: Executive Order 13950; DOL FAQ on Executive Order 13950

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