A Contractor's Guide to Trump's Diversity Training Order
Federal contractors have long provided various types of anti-harassment, nondiscrimination and diversity and inclusion, or D&I, training to their employees. After the death of George Floyd and the nationwide protests that followed, D&I training has proliferated in workplaces across the country, including within federal agencies and in the contractor community.
In response to the widespread public protests for racial equality, many companies and executives issued public statements denouncing racism. Many also pledged millions of dollars to social justice organizations. In numerous workplaces, employees have taken the initiative to organize book clubs and discussion circles focused specifically on promoting open workplace discussions about race. Some employers have provided lists of resources for employees seeking to learn more about issues of race.
On Sept. 22, the Trump administration issued a bombshell executive order purporting to ban certain types of D&I training, leaving federal contractors scrambling to determine how best to comply, and how to identify and mitigate the new risks they now face.
President Donald Trump has been vocal about his views on the discourse of racial issues following the nationwide protests for racial equality that started at the beginning of the summer.
In June, the president rejected calls to rename military bases honoring Confederate generals. The Trump administration issued a memorandum on Sept. 4, directing agencies to identify:
all contracts or other agency spending related to any training on critical race theory, white privilege, or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil [and to] identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions.
The executive order that followed three weeks later takes aim at contractor-provided workplace D&I training that the Trump administration considers divisive and objectionable.
In particular, the executive order seeks to root out the "ideology … that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans" including the idea that the U.S. government "was made on the white basis by white men, for the benefit of white men."
According to the executive order, such messages "are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country."
When asked during the Sept. 29 presidential debate why he banned certain types of diversity training, Trump responded:
We would pay people hundreds of thousands of dollars to teach very bad ideas, and frankly very sick ideas, and really they were teaching people to hate our country. And I'm not going to do that. I'm not going to allow that to happen.
What is prohibited? What is allowed?
Although Section 2 of the executive order provides a set of definitions, in many cases, the determination of whether specific training content is prohibited remains uncertain and subjective. Available indications suggest that D&I training appearing to advocate for the existence of concepts such as implicit bias, systemic racism, white privilege, male privilege and the idea that America is now or ever has been a racist country may be considered noncompliant with the executive order.
U.S. Office of Management and Budget guidance released on Sept. 28 suggests that agencies identify potentially noncompliant training by searching agency financial data and procurements for the following keywords: critical race theory, white privilege, intersectionality, systemic racism, positionality, racial humility and unconscious bias.
It appears that D&I training would be permissible if it limits its focus to the imperative of treating all individuals equally. Contractors may be in uncertain territory if their D&I training acknowledges the existence of any racial inequalities in society or invites examination of the reasons for such inequalities. This is ironic given the federal government's preferential contracting programs for minority-owned and historically underutilized business zone businesses, which aim to address such inequalities.
What is the effective date?
The executive order takes immediate effect, except for the requirements of Section 4, which apply to contractors. The prohibition on contractors to refrain from D&I training that includes the so-called divisive concepts and/or race and sex scapegoating officially goes into effect with contracts issued on or after Nov. 21. Recent OMB guidance suggests that contractors should stop the prohibited training immediately.
How will the executive order apply?
The executive order requires agencies to insert a clause into all federal contracts issued on or after Nov. 21 that prohibits:
during the performance of this contract … any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, including the concepts that (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual's moral character is necessarily determined by his or her race or sex; (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 clause must be flowed down to all subcontractors and vendors, with the exception of contracts exempted from equal opportunity requirements by Section 204 of Executive Order No. 11246.
This is likely because the executive order does not seek simply to prevent training on the so-called divisive concepts for contractor employees working on a particular government contract that contains the clause.
Rather, the executive order's prohibition applies at the organizational level so long as any one of a company's contracts contains the clause. In such case, the training prohibited by the executive order cannot even be provided to contractor employees who work exclusively on commercial, nongovernment business.
How will the executive order be enforced and what are the penalties?
There appears to be three methods by which the government will identify training that violates the executive order:
- Agencies are required to review their contracts to identify any under which the prohibited training might be occurring.
- The Office of Federal Contract Compliance Programs announced the establishment of a hotline where anyone can report allegedly prohibited training.
- By Oct. 22, the OFCCP will issue a request for information inviting the submission of information about D&I training, including written materials.
Penalties for noncompliance can include partial or total contract termination. The executive order does not specify whether any such termination would be for convenience or for default. Additionally, the executive order requires agencies to consider whether to debar contractors that violate the executive order.
The executive order will remain a part of the landscape so long as the Trump administration holds power. Notably, there will be no notice and comment rulemaking, which would have provided contractors the opportunity to describe the potential impact of the training prohibition. There may well be a legal challenge to the executive order on constitutional grounds.
Should the administration change with the next election, the executive order will likely be repealed. Until then, the possibility of enforcement remains, including through any potential lame duck period. The government contracts community will continue to monitor developments in this area.
What are some contractor do's and don'ts?
1. Don't panic about debarment.
While the executive order requires agencies to consider debarring contractors that violate the training prohibition, we do not expect to see a deluge of debarment actions on this basis. Debarment is a serious remedy reserved for egregious cases of misconduct and fraud, imposed to protect the interests of the federal government.
Moreover, the debarment process involves affording the respondent prior notice and an opportunity to respond. This process can take weeks or even months to conclude, by which time a change in administration could herald the end of the executive order.
Additionally, federal agencies weighing debarment will likely consider the potential negative impact to their own programs and to obtaining future competition.
2. Do not cancel all D&I training.
The executive order does not prohibit all D&I training. Indeed, contractors remain subject to existing laws and regulations prohibiting discrimination and promoting equal opportunity and affirmative action. Even training that may appear to violate the executive order can likely be modified to reduce any potential enforcement risk.
3. Continue to promote open discussion in D&I training.
The executive order does not outright prohibit all training that mentions the so-called divisive concepts, only training that inculcates a particular viewpoint. Accordingly, the contractor should consider disclaiming any particular viewpoint — other than the value of promoting diversity — and continue to encourage broad, respectful discussions during training sessions.
Employees may independently raise some of the concepts that the executive order prohibits — e.g., white privilege, systemic racism, inherent bias, etc. The contractor is not required to cut off such discussions. What matters is that the contractor does not appear to endorse and advocate for the existence of such concepts while the executive order remains in effect.
4. Evaluate training materials.
Contractors should evaluate their current training materials, and pause and/or modify the distribution and use of materials that appear to violate the executive order. Be aware of the risk that external speakers and trainers may violate the executive order, and confer with them ahead of training delivery. Consider adding a viewpoint disclaimer to written or demonstrative training materials.
5. Develop a plan for the forthcoming OFCCP request for information.
In the coming weeks, the OFCCP will issue a request for information, requesting submission of information related to D&I training, including schedules, budgets and materials. Responding to this request is voluntary, meaning contractors cannot be penalized for a nonresponse.
Contractors should be aware that employees could submit company information to the OFCCP, even as to training that predates the executive order. Contractors should prepare for the possibility that they may be called upon to explain such materials.
6. Consider creative suggestions.
Contractors wishing to assist their employees in continuing their personal education on issues of race might consider referring employees to publicly available resources that employees read on their own time. For instance, the D.C. Public Library maintains a reading list of books about racial issues.
The Smithsonian Institution's National Museum of African-American History and Culture has launched an online portal that "provides digital tools, online exercises, video instructions, scholarly articles and more than 100 multi-media resources tailored for educators, parents and caregivers — and individuals committed to racial equality." The likelihood appears low that a contractor would be debarred for referring employees generally to a Smithsonian or public library webpage.
7. Do not rescind support pledged to social justice organizations.
The executive order does not prohibit contractors from pledging financial or other support to social justice organizations. Many companies have made pledges of support or acknowledged the work of groups such as the NAACP Legal Defense and Educational Fund Inc. and Black Lives Matter, or have encouraged employees to mentor diverse students. Such efforts are beyond the scope of the executive order and need not be cancelled.
8. Seek Advice.
The executive order leaves plenty of room for uncertainty. Accordingly, and given the potential penalties at issue, it is advisable to seek advice should you have questions about your organization's D&I training programs and diversity initiatives.
“A Contractor's Guide to Trump's Diversity Training Order,” by Dominique L. Casimir, Brooke T. Iley, and Tjasse L. Fritz was published in Law360 on October 2, 2020.