| On September 22, 2020, the President of the United States issued an Executive Order on Combatting Race and Sex Stereotyping (the “Executive Order”). In the Executive Order, the President declared that the policy of the United States is “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.” As a part of this policy, the Executive Order requires most federal contracts entered into after November 22, 2020 to include language that prohibits workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating. This specifically includes the following concepts, which are defined as “divisive concepts:” 1. One race or sex is inherently superior to another race or sex; 2. An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; 3. An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; 4. Members of one race or sex cannot and should not attempt to treat others without respect to race or sex; 5. An individual’s moral character is necessarily determined by his or her race or sex; 6. 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; 7. Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or 8. 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 also requires federal contractors to provide notice to employees and applicants through various means of its requirement to abide by the Executive Order, and to include certain contract language in subcontracts and purchase orders. Further, the Executive Order strongly encourages federal grants to include language prohibiting race or sex scapegoating, and directs all federal agencies to assess whether any current trainings or training materials include elements of race or sex scapegoating, as defined by the Executive Order. If, after review, a contractor provides training for agency employee that teaches, advocates, or promoted the above-described “divisive concepts,” the agency must evaluate whether to pursue debarment of the contractor. Finally, the Executive Order directs the Attorney General to assess the extent to which workplace training that teaches the above-described “divisive concepts” contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964. This Executive Order, in addition to making prohibitions in the future, may have an effect on existing and past trainings conducted by federal contractors, depending on how the Executive Order will be enforced. With the understanding that some of the “divisive concepts” described above may be hard to interpret, Federal contractors and grantees should immediately ensure that their workplace trainings do not include the concepts identified above moving forward, both for current and future contracts. Meredith S. Campbell Chair, Employment and Labor Group Shulman Rogers mcampbell@shulmanrogers.com | T 301.255.0550 | F 301.230.2891 |
