DOL Publishes Guidance on Diversity Training Executive Order

On September 22, 2020, the Trump administration issued Executive Order 13950 (the Order) prohibiting workplace training that involves “sex stereotyping” or “scapegoating.”  The Order is applicable to federal employees, the military, and private entities that receive grants or federal government contracts. While there is much we do not know about the implications of the Order, this client alert examines the U.S. Department of Labor’s (DOL) limited guidance, issued yesterday, which sheds some light on the Order’s requirements and its implications for government contractors who violate the Order.

The Order requires federal government contracts to include the requirements as of November 21, 2020. When applied, the provisions must be flowed down to subcontractors. There is no exception for contracts under the simplified acquisition threshold or for commercial off-the-shelf items. Additionally, DOL’s Office of Federal Contract Compliance Programs (OFCCP) will be issuing Requests for Information by October 22, 2020. The Request for Information will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of the Order.

Prohibited training includes any component that ascribes “character traits, values, moral and ethical codes, privileges, status, or beliefs to an entire race or sex, or to individuals because of their race or sex” or “assigning fault, blame, or bias to a race or sex, or to members of a race or sex, because of their race or sex. It encompasses any claim that, consciously or unconsciously, and by virtue of their race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”

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