A new executive order (EO) will prohibit federal contractors from conducting training that promotes “any form of race or sex stereotyping or any form of race or sex scapegoating,” including training where “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” This action by the Trump administration continues a trend toward using federal contracting rules to achieve social and political objectives.
The new EO, which takes effect in 60 days and applies to new federal contractors, would prohibit workplace training that includes the following concepts:
- An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
- 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; and
- 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 EO requires the Department of Labor (DOL) to create a complaint hotline and investigate the claims it receives and take appropriate enforcement action and provide remedial relief.
DOL is directed to request from federal contractors copies of any D&I training, workshop, or similar programing as well as information about the duration, frequency, and expense of such activities.
The Department of Justice and the EEOC are ordered to assess the extent to which workplace D&I training may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, and if appropriate, publish guidance to assist employers in better promoting diversity and inclusive workplaces consistent with Title VII.
Impact on federal contractors and other considerations. Employers may continue their D&I training as nothing in the order prohibits a discussion of diversity concepts “in an objective manner.” However, the EO is filled with broad terms that will have to be further clarified through guidance and regulation. Federal contractors may want to review their D&I training to identify potential issues and to prepare for when additional guidance and rules are published.
HR Policy CEO Tim Bartl observed, “Diversity and inclusion training has become a major priority of most large companies for a variety of compelling reasons. The objectives of the training and what works best can vary significantly from one workplace to another. Imposing new federal constraints on the content of those programs may hamstring companies’ ability to ensure systemic and organized racial bias does not arise in their workplaces.”
Disturbing trend continues: In recent years, administrations of both parties have escalated a disturbing trend of using federal contracts to achieve policy goals that have little or nothing to do with contract performance. The whipsaw of imposing and then rescinding, and then imposing again, workplace mandates depending on who is in the White House introduces unnecessary costs on employers.