On September 22, 2020, President Trump issued the Executive Order on Combating Race and Sex Stereotyping (“EO”) establishing requirements aimed at “promoting unity in the Federal workforce,” by prohibiting workplace training on “divisive concepts,” including “race or sex stereotyping” and “race or sex scapegoating” as newly-defined in the EO.  The EO is broadly applicable to executive departments and agencies, Uniformed Services, Federal contractors, and Federal grant recipients.  The EO expands on a letter issued in early September by the Director of the Office of Management and Budget (“OMB”) that directed all agencies to begin to identify contracts or other agency spending on trainings that include “critical race theory,” “white privilege,” or “un-American propaganda,” in an effort to ensure “fair and equal treatment of all individuals in the United States.”

Following the EO, on September 28, 2020, OMB issued a Memorandum for the Heads of Executive Departments and Agencies (the “Memo”) with additional guidance aimed at assisting agencies in identifying diversity and inclusion trainings for agency employees that may be subject to the EO.  The Memo suggests that agencies conduct keyword searches of training materials for specific terms, such as “intersectionality,” “systemic racism,” and “unconscious bias.”  Although the Memo primarily explains the terms of the EO, it also provides additional insight concerning the breadth of agency trainings that may ultimately be considered to violate the terms of the EO, which are described below.

Although the EO is likely to be subject to legal challenge (as more fully discussed below), federal contractors, including subcontractors and vendors, could be subject to the compliance requirements outlined below as soon as November 21, 2020.

Prohibition on Teaching “Divisive Concepts” in Workplace Training

  • The EO prohibits inclusion of “divisive concepts” in U.S. Uniformed Services training and Federal agency or Government contractor workplace training.  Federal grant funds are also prohibited from being used to promote such concepts.
  • Divisive concepts” include the following list of concepts, as well as “any other form” of race or sex stereotyping or race or sex scapegoating (separately defined below):
    1. one race or sex is inherently superior to another race or sex;
    2. the United States is fundamentally racist or sexist;
    3. an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
    4. an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
    5. members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
    6. an individual’s moral character is necessarily determined by his or her race or sex;
    7. 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;
    8. any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
    9. 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 EO also defines “race or sex stereotyping” and “race or sex scapegoating.”
    1. “‘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.”
    2. “‘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.”

New Requirements for Federal Contractors and EO Implementation Timeline

If the EO is implemented on schedule, all Government contracts entered into 60 days after September 22, 2020 (November 21, 2020), with the limited exception for contracts with religious entities exempt from certain nondiscrimination requirements, must contain a prescribed clause that the contractor will not use any workplace training that includes divisive concepts.  Unless a Department of Labor (“DOL”) exemption applies, contractors must also flow down and potentially enforce these new requirements for subcontractors and vendors.  Contractors must conspicuously post, where it will be seen by employees and applicants for employment, a notice provided by the relevant agency contracting officer of the contractor’s commitments under this EO.  Further, contractors must distribute this notice to each labor union or representative of workers with which the contractor has a collective bargaining or any other agreement.

Potential penalties for noncompliance include that the contract may be canceled, terminated, or suspended, in whole or in part.  Further, if violations are found, the contractor may be subject to agency conciliation negotiations or administrative enforcement proceedings, or to suspension or debarment proceedings subject to agency discretion.  The EO does not appear to be retroactive; however, agency reporting requirements discussed below for FY 2020 funds may implicate contracts currently in effect.

EO-Prescribed Agency Actions Relevant to Federal Contractors

  • The Office of Personnel Management (“OPM”) must review all diversity and inclusion training programs for agency employees prior to implementation.  If a contractor provides training to agency employees that would include divisive concepts, the contractor would be subject to penalties under the EO, including debarment.
  • By November 21, 2020, each agency head must report to the Director of OMB a list of any respective grant recipients that may be required to certify that the recipient will not use federal grant funds to promote divisive concepts.  By December 21, 2020, all agencies must report all FY 2020 spending on federal employee diversity and inclusion training programs, both conducted internally by the agency and by contractors.  Agency reports must include aggregate spending totals and delineate awards to each individual contractor.
  • DOL’s Office of Federal Contract Compliance Programs (“OFCCP”) must establish a hotline and investigate complaints that a federal contractor is using training programs prohibited by the EO.  Within 30 days of the EO (by October 22, 2020), the Director of OFCCP will publish a request for information seeking submissions of workplace diversity and inclusion training information and materials from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors.

Potential Challenges

The EO represents an unprecedented effort to influence speech in the workplace and is likely to draw a number of challenges.  In particular, the EO may conflict with federal or state requirements to provide trainings on the topics of race and sex discrimination.  Further, the EO’s breadth as drafted—including the requirements for contractors and certain grant recipients to restrict the content of their trainings, send notices to labor unions, and post copies of the notice in conspicuous places for employees and applicants—also presents a number of constitutional concerns that may lead to challenges, especially once agencies begin applying its requirements to federal contractors.  Contractors could view these requirements as extending beyond defining the contours of a spending program (which is generally constitutionally permissible) to coercing or restricting private speech, for example. Similarly, the requirements could be viewed as restricting or compelling corporate speech (as opposed to requiring or defining privately-subsidized government speech) in violation of the First Amendment.  Apart from the EO’s effects on speech, the EO and agency actions implementing it may draw challenges based on the Administrative Procedure Act, the Federal Property and Administrative Services Act, and other statutes.

Considerations for Employers

The EO applies specifically to “training”, and not policies or other documents that employers may publish as part of diversity and inclusion programs.  If the EO is fully implemented, its terms could trigger significant modifications to diversity and inclusion trainings, including how concepts such as unconscious bias and meritocracy are addressed.  If it remains in effect, employers will want to begin gathering their various trainings together to prepare for a review of the language used and concepts covered to ensure compliance with the EO.  For the most part, sophisticated trainings likely do not stray into the territory prohibited by the EO, but ambiguity in the language may cause difficult analysis.  Employers need not discontinue specific training modules immediately, but should carefully monitor the progress of this EO toward implementation.

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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising…

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.

Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.


Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
    the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Sarah Schuler Sarah Schuler

Sarah Schuler is an associate in the firm’s Washington, DC office. She is a member of the Government Contracts Practice Group, advising clients across a broad range of government contracting issues. She also maintains an active pro bono practice.