• Executive Order 13950 – Combating Race And Sex Stereotyping: Contractor Workplace Training Requirements Are Changing November 22, 2020

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    October 15, 2020
    On September 22, 2020, the President signed Executive Order 13950 – Combatting Race and Sex Stereotyping (EO 13950). The new Executive Order is intended “to combat offensive and anti-American race and sex stereotyping and scapegoating[.]” To implement that goal, EO 13950 states that the government’s policy is “not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services …. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

    In practical terms, this means that federal contractors will be prohibited from conducting or providing workplace training that teaches what EO 13950 identifies as “divisive concepts.” The prohibited “divisive concepts” include 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.
    In recently-released FAQs, the Office of Federal Contract Compliance Programs (OFFCP) explained that unconscious bias or implicit bias training will still be permitted to the extent that “it is designed to inform workers, 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.” However, the training will violate EO 13950 if it “teaches or implies 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.”

    Because EO 13950 does not define the term “contractor,” it appears that the new training requirements apply to the training of all contractor employees, not just those working on a federal contract. There is no exclusion for commercial item contractors.

    These requirements will be incorporated into all new contracts entered into after November 21, 2020. The new contract clause must be flowed down to all subcontracts and purchase orders at every level regardless of value.

    The OFCCP has already established a hotline to take reports of violations. The OFCCP has also asserted that it already has the authority to enforce prohibitions on race and sex stereotyping, making it unclear whether OFCCP intends to investigate reported contractor violations of EO 13950 before November 21, 2020.

    Violations of the contract clause may subject a contractor to cancellation, termination, or suspension of its contract, as well as debarment. EO 13950 also contemplates referrals to the Equal Employment Opportunity Commission or the Department of Justice for enforcement under Title VII of the Civil Rights Act of 1964.

    Irrespective of whether EO 13950 would survive a change in administration or even a legal challenge, the ramifications of this order merit attention by contractors. While EO 13950 remains in effect, contractors should be aware of these new requirements, and be prepared to see the new clause in contracts after November 21, 2020.
    Daniel McLennon, Partner
    dfmclennon@smithcurrie.com, (415) 394-6688
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