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Executive Order Combating Race and Sex Stereotyping: OFCCP Issues Guidance, Some Professional and Trade Associations Issue Statements Opposing It

The OFCCP has issued guidance regarding Executive Order 13950.

Last week, we reported on the White House’s October 22, 2020 executive order, Executive Order 13950, entitled “Executive Order on Combating Race and Sex Stereotyping.”

As we reported, the Order seeks, among other things, to bar federal contractors and federal grant recipients from promoting and perpetuating what it defines as “race or sex stereotyping,” “race or sex scapegoating,” and other “divisive concepts” in their workplace training.  Also, the Order tasks the OFCCP with monitoring compliance with the Order, establishing a hotline for employees and employers with questions or complaints, and investigating complaints of noncompliance.

On October 7, the Office of Federal Contract Compliance Programs issued limited guidance regarding the Order. Two points stand out.

  1. The OFCCP addresses when Executive Order 13950 becomes effective.  Says the OFCCP, the requirements for federal contractors and subcontractors will apply to contracts entered into after November 21, 2020.  But, without regard to whether a contractor or subcontractor enters into or modifies a contract after that date, the OFCCP may investigate sex and race stereotyping claims under Executive Order 11246, which prohibits covered contractors and subcontractors from discriminating based on race, sex, and other protected characteristics.
  2. On whether Executive Order 13950 bars federal contractors and subcontractors from providing unconscious bias training, the OFCCP, in effect, says “It depends.”

“Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.

Training is not prohibited if it is designed to inform workers, or foster a discussion, about pre-conceptions, opinions, or stereotypes that people – regardless of their race or sex – may have regarding people who are different, which could influence a worker’s conduct or speech or be perceived by others as offensive.”

– OFCCP Guidance

Executive Order 13950 has ignited considerable consternation and confusion among federal contractors and grant recipients.  And, a spate of trade and professional associations have issued statements deriding it.  Among them:

4As (formerly the American Association of Advertising Agencies)

The American Association of Advertising Agencies is joining other trade associations to oppose an executive order from President Trump that bans diversity training at federal contractors, including holding companies and ad agencies. The order would eliminate one of the few tangible DE&I measures that most marketers have embraced.

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Clean Water Action

On behalf of our millions of members and supporters across the country, we write with deep concern about -- and strong opposition to -- the September 4th 2020 OMB circular M-20-34, “Training in the Federal Government,” and the related September 22nd 2020 Executive Order on Combating Race and Sex Stereotyping. These directives are beginning to have a damaging and chilling impact on agency efforts to address prejudice, workplace harassment, discrimination, and related challenges.

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The Accreditation Council for Graduate Medical Education

The Order, issued seemingly promotes the training of employees to create an inclusive environment by avoiding race and sex stereotyping; however, that intent is subverted by defining divisive concepts in a way that turns mechanisms intended to protect into weapons of divisiveness and exclusion. The Executive Order is inconsistent with work done over the past 50 years to advance civil rights of minoritized and thereby marginalized communities in and, through its mandates, risks further division and fostering a culture of enmity.

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The American Academy of Social Work and Social Welfare

Under the twin cloaks of personal and opportunity equality, both enshrined in our Independence Declaration and our Constitution, the President of the United States is seeking to whitewash our history and institutionalize racism and sexism. His Executive Order to radically cripple diversity and equity training designed to promote racial and sexual equality extends to all federal staff training and all training conducted under federal contracts and grants. This is a tragedy of monumental proportions that cannot be permitted to stand.

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The American Association of Colleges of Pharmacy

The American Association of Colleges of Pharmacy (AACP) expresses serious concerns with the Executive Order on Combating Race and Sex Stereotyping released on September 22, 2020, and the Office of Management and Budget memorandum that, together, limit diversity, racism, and sexism training for federal employees, contractors and grantees. These communications, while vague and difficult to enforce, produce a chilling effect on educational initiatives that are needed in today’s workplaces to address historical and ongoing conscious and unconscious biases against marginalized groups in our society.

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The American Counseling Association

We are very concerned that the Executive Order would place an outright ban on the important work and results stemming from meaningful training in diversity and inclusion. To state that funding will be withheld from those agencies and grantees who do not adhere to the Executive Order seems especially punitive and counterintuitive to the benefit of diversity and inclusion training.

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The American Society for Engineering Education

We the undersigned strongly oppose the September 22, 2020 Executive Order (EO) on Combating Race and Sex Stereotyping. We believe it to be destructive, misguided, misleading, and brazen in its usage of civil rights imagery and language to justify its position.

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The Association of Schools and Programs of Public Health

The racial sensitivity and unconscious bias training courses of which we are aware help people become more mindful of their own actions as well as their prejudices and more sensitive to others and to the dynamics of group interaction. We agree that such programs in and of themselves will not solve the fundamental problems of structural racism. They do represent, however, an important part of our collective effort to shift the culture towards a world that is welcoming of all, without prejudice. Targeting these programs is simply a political stunt in an election season; it should be beneath us.

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The Information Technology Industry Council 

This EO is also an unprecedented overreach of the federal government into the activities and values of private businesses. It is a well-established tenet of government contract law that the government must not impose a supervisory relationship over contract employees. By restricting the information government contractors can use to train their employees, the Executive Branch is introducing a substantial new regulatory burden that will not only micro-manage private employer/employee relationships but is potentially interfering with basic First Amendment rights.

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The Internet Association

The internet industry is deeply concerned with the administration’s latest Executive Order. This EO is an overreach by the administration and undermines all the meaningful work being done by civil liberty groups, industry, and other stakeholders to build a more inclusive workforce.

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The National Association of Social Workers

As our nation continues to reckon with the stark and undeniable evidence of persistent racial inequity, and despite the earnest efforts of so many to eliminate it, the National Association of Social Workers (NASW) is deeply disappointed and troubled by the Executive Order on Combating Race and Sex Stereotyping issued on September 22 by President Trump. The order, with its litany of purposeful distortions of the facts of our nation’s history and broadly understood concepts such as ‘systemic racism’ and ‘White privilege,’ is a thinly veiled part of the President’s overall strategy to stoke racial division in an already fractured country for his own political purposes.

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The National Council of Nonprofits

The abbreviation ‘EO’ often stands for ‘executive order.’ But when used in connection with President Donald Trump’s Executive Order on Combating Race and Sex Stereotyping, which perversely protects racism and sexism, EO could just as easily mean ‘extremely Orwellian.’

The timing of this order, just weeks before the November election, has led observers to conclude that the order ‘is a thinly veiled part of the president’s overall strategy to stoke racial division in an already fractured country for his own political purposes.

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The Pharmaceutical Research and Manufacturers of America

Diversity is essential to a robust innovation ecosystem that can create new medicines for those who need them. Our member companies' longstanding diversity, equity, and inclusion training and broader efforts play a significant role in achieving that diversity. They help ensure we have open and honest conversations about racial equity and what it means to have a culture of inclusion; it is how we build toward broader health equity in our nation. Putting in place improper bureaucratic hurdles and restrictions on speech that hinder diversity and prolong racial inequity undermines that ecosystem and puts in jeopardy opportunities for meaningful dialogue on the values for which this nation stands. That is why this ill-conceived and harmful executive order must be rescinded.

*This list is not exhaustive.

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