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As previously reported, on September 22, 2020, President Trump issued Executive Order 13950 on Combating Race and Sex Stereotyping (Order), which barred federal agencies, federal contractors, and recipients of federal grants from conducting diversity and inclusion training that promotes “divisive concepts” involving any form of “race or sex stereotyping” or “race or sex scapegoating.”
The controversial Order, which took effect on November 21, 2020, also required the Office of Federal Contract Compliance Programs (OFCCP) to establish a new complaint hotline and required affected employers to incorporate references to the Order in their government contracts and submit copies of their diversity and inclusion training materials to the OFCCP for review. The OFCCP subsequently published guidance addressing various Frequently Asked Questions and confirmed that training on unconscious or implicit bias was prohibited by the Order “to the extent 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.”
At the time the Order was issued, affected employers were left wondering whether changes would be required to their nondiscrimination, anti-harassment, and diversity and inclusion training and whether the expected legal challenges would overturn the Order or prevent it from being implemented. Following the election, President-elect Biden's approach to the Order has also been a topic of discussion, with the incoming president widely expected to rescind the Order following his inauguration. However, as it turns out, federal contractors and grant recipients didn't have to wait that long for relief from the Order.
On December 22, 2020, in response to a lawsuit filed by the Santa Cruz Lesbian and Gay Community Center and other nonprofit groups, a California federal court judge issued a nationwide preliminary injunction prohibiting the federal government from enforcing the Order against federal contractors and federal grant recipients. In doing so, the court concluded that the provisions of the Order applicable to federal contractors and federal grant recipients violate their First Amendment free speech rights because the Order “impermissibly chills the exercise of [their] constitutionally protected speech, based on the content and viewpoint of their speech.” The court also found that the Order runs afoul of the Fifth Amendment's due process clause because it is so vague that covered contractors and grant recipients cannot determine what conduct is prohibited.
Although the court's injunction is not permanent and may be reversed if challenged, for now the OFCCP and other government agencies are prohibited from enforcing the Order against federal contractors or grant recipients so long as the injunction remains in effect. To that end, the OFCCP's website already indicates that it is complying with the preliminary injunction and will publish more information soon. In the meantime, it remains to be seen whether President-elect Biden will eventually rescind the Order (which remains in effect as to federal government agencies, which were not impacted by the California court's injunction). We will continue to monitor changes in this area and will provide updates on any future developments regarding Executive Order 13950.
Originally Published by Foley & Lardner, December 2020
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