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04 November 2020
On 22 September 2020 President Donald Trump issued an executive order which prohibits federal contractors and federal grant recipients from conducting any workplace training that, among other things, includes:
the concepts that... (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; … (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 term "race or sex stereotyping" means ascribing... privileges, status, or beliefs to a race or sex, … and the term "race or sex scapegoating" means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.
The executive order further requires each contractor to:
The executive order also directs the Department of Labour to create a hotline for employees to report employers who violate the order. In addition, government agencies are directed to request copies of all diversity and inclusion materials from contractors.
This requirement applies to all contracts and grants entered into after the order's effective date and the requirement takes effect 60 days after the order's effective date, potentially affecting hundreds of thousands of organisations that currently receive federal assistance through contracts, grants or other programmes. No current changes are required for current grant recipients and federal contractors but they may be required in the future to be awarded new contracts or grants to the extent integrated into contracts and grants. The implementation of this executive order through the Department of Labour will be critical, and includes:
This executive order is likely to be challenged on various grounds, including First Amendment grounds. Nevertheless, employers who are government contractors – even if the contract is not yet up for renewal – should review their training materials, as the definition above could easily extend to any training that references or educates employees about concepts of unconscious bias or suggests in any way that white men face fewer challenges or obstacles than women or people of colour. The penalties for violation would include potential disqualification from award of federal contracts or grants, civil and criminal penalties and suspension or debarment from participation in federal programmes.
The executive order also moves beyond federal contractors by directing the attorney general to:
assess the extent to which workplace training that teaches the... [foregoing] concepts... may contribute to a hostile work environment and give rise to potential liability under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq.
Thus, all employers may wish to review their materials in anticipation of future Equal Opportunity Commission action for reverse discrimination.
For further information on this topic please contact Rachel B Cowen at McDermott Will & Emery's Chicago office by telephone (+1 312 372 2000) or email (email@example.com). Alternatively, contact Maria C Rodriguez at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) or email (firstname.lastname@example.org). The McDermott Will & Emery website can be accessed at www.mwe.com.
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