In a 34-page ruling, the U.S. District Court for the Northern District of California blocked two key parts of President Donald Trump’s Executive Order 13950 - Combating Race and Sex Stereotyping. The order, among other things, bars contractors from holding workplace training that “inculcates in its employees any form of race or sex stereotyping or race and sex scapegoating.” This prohibition has caused many federal contractors and grantees to stop their diversity training programs.
The court’s Dec. 22, 2020, ruling is the most recent development in the controversy surrounding the order, which has been marred by legal challenges nearly since its inception. A month after the Trump administration issued the order, the NAACP filed a federal class action suit in the U.S. District Court for the District of Columbia challenging the order’s constitutionality. Just three days later, a group of nonprofit community organizations and consultants serving the LGBTQ+ community filed a similar federal complaint in the Northern District of California. It is the latter challenge that led to the nationwide injunction.
As the court states in its order, the plaintiffs in the California suit “provide advocacy and training to health care providers, local government agencies, local businesses, and their own employees about systemic bias, racism, anti-LGBT bias, white privilege, implicit bias, and intersectionality.” They allege the order constitutes unlawful censorship under the First Amendment, because it requires them to either significantly curtail their diversity trainings or forfeit their federal funding. The plaintiffs also argue the order violates the Fifth Amendment’s due process clause. They claim the order is “so vague,” it fails to offer sufficient notice of the types of speech it prohibits. Judge Beth Labson Freeman found that the plaintiffs made a preliminary showing of unconstitutionality and granted the motion to stop the order.
The injunction prevents the enforcement of the order’s Sections 4 and 5 pursuant to both the free speech clause of the First Amendment and the due process clause of the Fifth Amendment. No other sections were affected by the ruling.
Section 4 requires that all government contracts entered into on or after Nov. 21, 2020, include a clause affirming that the “[t]he 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.” The order cautions that a failure to comply with this provision could lead to contracts being “canceled, terminated, or suspended in whole or in part” and warns that any contractor violating its mandate “may be declared ineligible for further Government contracts.” Section 5 requires agency heads to review grant programs to determine which grants may be conditioned on the recipient’s certification that federal funds will not be used to promote concepts that the order characterizes as “divisive.”
The future of the order remains unclear. The court’s preliminary injunction is temporary, not permanent. But it’s anticipated that President-elect Joe Biden’s administration will repeal the order upon his taking office, preventing enforcement of the order before Sections 4 and 5 become effective. As noted in a prior eLABORate, however, the Office of Federal Contract Compliance Programs takes the position that it may immediately investigate claims of sex and race stereotyping “pursuant to its existing authority under Executive Order 11246.”
Given the uncertainty surrounding the contentious order, federal contractors and grantees should watch for developments surrounding these legal challenges to make sure they comply with the current state of the order. Please contact Stephanie Poucher or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.