Executive Order Bans Certain Race and Sensitivity Training Topics in Employment and Education

By Jackie Gharapour Wernz, Michael Warner & Sally Scott - Franczek P.C.

September 28, 2020

On September 22, 2020, President Donald Trump issued a controversial Executive Order “combat[ting] offensive and anti-American race and sex stereotyping and scapegoating” by federal contractors and recipients of federal grant funds, including schools, colleges, and universities. The order essentially bans racial and sex sensitivity trainings for employees of federal contractors, students, and recipients of certain grant funds, if the trainings address systemic racism and sexism, implicit bias, and other common topics. Schools that endorse such concepts in their curricula are also at risk of losing related federal grant funds. Finally, the order gives tacit support to legal challenges under Title VII of the Civil Rights Act of 1964 against employers that provide race and sensitivity trainings that include “divisive concepts.”

Background and Key Terms

The Executive Order addresses issues first raised by the President in early September in a memorandum directing of Federal agency heads to stop using federal funds for trainings for government workers for certain anti-bias trainings. The memorandum identified as examples of prohibited trainings those claiming that “virtually all White people contribute to racism,” those requiring participants to say they “benefit from racism,” and those arguing that “there is racism embedded in the belief that America is the land of opportunity or the belief that the most qualified person should receive a job.”

The Executive Order takes this limitation one step further by applying it to federal employees and those of contractors and certain federal grant recipients. The order defines prohibited “divisive concepts” to include, among other things, concepts that:

•     “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously”
•    “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 order also defines “race or sex stereotyping” as ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of race or sex. It further defines “race or sex scapegoating” as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex” and “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.”

Application to Employers

For employers that are federal contractors, the executive order requires all future non-exempt contracts to commit to refraining from using any workplace training that includes any race or sex “stereotyping,” “scapegoating,” or use of “divisive concepts.” Contracting agencies will provide a notice that contractors must make available to labor unions and other employee organizations and post indicating agreement with the terms of the order. The Department of Labor will create a hotline through which violations can be reported, and violations could lead to the cancellation of contracts in the most serious cases.

The order may also apply to employers that receive federal grant funds. The order directs all agencies issuing federal grants to identify programs for which the agency will require grant recipients to assure compliance with the executive order as a condition of receipt of the grant.

Even for employers that are not federal contractors or grant recipients should note the order’s language about Title VII. The order directs the Attorney General to assess the extent to which workplace training that teaches “divisive concepts” may contribute to a hostile work environment and give rise to potential liability under Title VII. The Attorney General and the Equal Employment Opportunity Commission are to issue publicly available guidance to help employers better promote diversity and inclusive workplaces consistent with Title VII.

Application to Schools, Colleges, and Universities

Schools, colleges, and universities that receive federal grants or are federal contractors are subject to the employment conditions described above as an employer. The order also has implications for educational institutions’ work with students. The training prohibitions and legal challenges seem equally applicable to training of students. Because Titel VI of the Civil Rights Act of 1964, which prohibits discrimination based on race in education, uses similar language to Title VII, students and other complainants could rely on the order’s language to support similar claims that training used for students violates Title VI.

The order also addresses discussions of “divisive concepts” in the classroom: “Nothing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.” This suggests that the federal government will take issue if there is any endorsement of the “divisive concepts” rather than pure academic discussion of their existence.

Key Takeaways

The executive order will almost certainly be subject to legal challenges, including First Amendment Challenges. Also, because it is an executive order issued solely by the President, not legislation, the order’s ultimate fate will depend on the results of the November election.

Because the order directs agencies that oversee federal contractors and grants to obtain assurances from the recipients that they will comply with the order, federal contractors and grant recipients should be on the lookout for any requests and seek legal counsel upon receipt. Employers should also be on the lookout for potential legal challenges from employees about trainings, even if no federal funds are at issue. For more information about how this order may impact your organization or educational institution, contact the authors of this post or any other Franczek attorney.