President Trump’s Executive Order 13950

On September 22, 2020, President Trump issued Executive Order 13950 identified as combating race and sex stereotyping. Among other items, the Executive Order changes language that should be present in federal contracts including any persons receiving federal funds from a contract and creates a prohibition on certain types of training being provided to employees performing under those contracts.

The Executive Order itself cites to such historical events as the battlefield of Gettysburg to the bus boycott in Montgomery and the Selma-to-Montgomery march. The President quotes various sources including Abraham Lincoln and Martin Luther King Jr. throughout the Executive Order which you can read for yourself here. The stated purpose of the Executive Order is lengthy ending with, “it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.”

So what is Race of Sex Stereotyping?

Per the Executive Order, “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.

So then what is Race or Sex Scapegoating?

Per the Executive Order, “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.

What are examples of Race or Sex Stereotyping or Scapegoating?

Per the Executive Order and the DOL’s guidance, race or sex stereotyping or scapegoating includes the concepts that:

• One race or sex is inherently superior to another race or sex;

• 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.

What are some of the requirements of this Executive Order?

Part of the Executive Order requires that all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions:

During the performance of this contract, the contractor agrees as follows:

1. The contractor shall not use 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 term “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, and the term “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.

 The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order of September 22, 2020, entitled Combating Race and Sex Stereotyping, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

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.

Other parts of the Executive Order speak to issues related to the military and other matters regarding the Race or Sex Stereotyping or Scapegoating.

What is at stake in the event of a contractor’s noncompliance with the requirements of this Executive Order or the related rules and regulations?

For a federal contractor, their contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts and face potential sanctions by the Secretary of Labor.

By October 22, 2020 and in accordance with the Executive Order, the Department of Labor is also expected to publish the Request for Information seeking information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950.