On September 22, 2020 the “Executive Order on Combating Race and Sex Stereotyping” was signed and released by the President of the United States. This order will have a significant impact on efforts of HR Practitioners have regarding Diversity, Equity & Inclusion training within their organizations. The Executive Order applies to federal contractors, federal agencies and the military.

The Executive Order stated that it is seeking “to combat offensive and anti-American race and sex stereotyping and scapegoating”. Therefore, mandated Diversity, Equity & Inclusion trainings should be free of the following:

• "Divisive concepts" means the concepts that:
  • one race or sex is inherently superior to another race or sex;
  • the United States is fundamentally racist or sexist;
  • an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • an individual's moral character is necessarily determined by his or her race or sex;
  • 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;
  • any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • 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 "divisive concepts" also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.
• "Race or sex stereotyping" means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.
• "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. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her 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.

Needless to say the Executive Order has caused a great deal of concern and confusion for HR Practitioners, not only with regards to what it requires of federal contractors and agencies, but also as to what additional information may be requested, the request to review of materials, what is the effective date and the fact that the Office of Federal Contract Compliance Programs has already established a hotline to investigate complaints. However, the bigger question, is:

Does Executive Order 13950 prohibit unconscious bias or implicit bias training?

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, and/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 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 and be perceived by others as offensive.

WPHR in partnership with our affiliated law firm, FortneyScott is working with clients to submit additional questions for the Agency to include in future FAQs, and strongly recommends that federal contractors have legal counsel review their Diversity, Equality and Inclusion training and affirmative action programs to ensure the training and affirmative action programs do not violate the new EO and OFCCP’s current enforcement protocols.

Many organizations have concerns and questions regarding the Executive Order and we will continue to keep you up to date as information becomes available.