Federal Contractors and Lawful Diversity and Unconscious Bias Training

Friday, November 20, 2020

President Trump’s l Government Order 13950 (“EO 13950”) – meant to fight “Race and Intercourse Stereotyping,” as per the President – might require federal businesses, federal authorities contractors and subcontractors, and federal grant recipients to vary the way in which they implement variety and sensitivity coaching or face the potential of shedding their authorities contracts. With Joe Biden’s presumptive presidential election win (pending official certification of outcomes) ), will employers nonetheless want to vary their coaching supplies?

What does Government Order 13950 prohibit?

Beneath EO 13950, companies coming into into authorities contracts on or after November 21, 2020 are prohibited from conducting any office coaching “that inculcates in its workers any type of race or intercourse stereotyping or any type of race or intercourse scapegoating.” Such” scapegoating” consists of any declare that consciously or unconsciously, and by advantage of their race or intercourse, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a intercourse are inherently sexist or inclined to oppress others.

Examples of prohibited scapegoating listed within the Government Order are wide-ranging. Precluded ideas embody teachings that:

A person, by advantage of his or her race or intercourse, is inherently racist, sexist, or oppressive, whether or not consciously or unconsciously;
A person, by advantage of his or her race or intercourse, bears accountability for actions dedicated up to now by different members of the identical race or intercourse;
Any particular person ought to really feel discomfort, guilt, anguish, or every other type of psychological misery on account of his or her race or intercourse;
Meritocracy or traits akin to “a tough work ethic” are racist or sexist, or had been created by a specific race to oppress one other race.

How does Government Order 13950 impression federal contractors?

The Workplace of Federal Contract Compliance Applications asserts that coaching shouldn’t be prohibited if it informs staff, or fosters dialogue, about pre-conceptions, opinions, or stereotypes that folks might have. Nonetheless, there’s a concern that coaching on points akin to unconscious and systemic bias, privilege, or affirmative-action could possibly be thought of to be in violation of EO 13950, particularly if an worker attending the coaching feels uncomfortable because of such coaching.

A authorities contractor discovered to be in violation of the Government Order might have its contracts canceled, terminated, or suspended, and could also be declared ineligible for future federal authorities contracts.

Has there been any response to Government Order 13950?

Varied governmental departments and businesses, together with the Justice Division, have cancelled or suspended variety and inclusion coaching packages. Professional-business teams, such because the U.S. Chamber of Commerce, have reacted negatively to EO 13950, expressing concern that the order causes confusion and uncertainty over what kinds of variety packages authorities contractors might provide. These teams have additionally commented that EO 13950 hinders employers’ capacity to advertise variety and fight discrimination within the office. Likewise, civil rights teams, together with the NAACP Authorized Protection Fund and a coalition of LGBTQ teams, have challenged the Trump Administration’s implementation of EO 13950 within the courts on First and Fifth Modification grounds. At the moment, the courts haven’t resolved the problems.

How can Government Order 13950 be modified?

Apart from the authorized challenges EO 13950 faces, an incoming Biden Administration might revoke or rescind EO 13950 through government order someday after inauguration day on January 20, 2021. Some imagine {that a} Biden administration would transfer rapidly to difficulty new government orders following within the footsteps of Presidents Obama and Trump, every of whom issued government orders undoing government orders issued by their predecessors inside days of being sworn in.

What occurs between now and any change from the incoming administration?

Till a brand new administration revokes or rescinds EO 13950, or till a court docket points an injunction stopping the Trump administration from implementing EO 13950, authorities contractors must be aware of its phrases and evaluation their variety and inclusion coaching packages to make sure compliance with EO 13950.