Posted on October 13, 2020

UPDATED JANUARY 20, 2021: The executive order discussed below has been rescinded.

New Executive Order 13950 was issued on October 7, 2020, that, among other things, instructs government contracting agencies to add provisions to government contracts prohibiting the use of any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” In addition to prohibiting employment training that implicates race or sex stereotyping, “scapegoating” or “divisive concepts” like unconscious bias, the new order implements new notice and posting requirements; instructs the Office of Federal Contract Compliance Programs (“OFCCP”) to create a complaint hotline for violations of the order; and instructs the OFCCP to initiate a process for collecting employee training materials and related information used by contractors relating to diversity and inclusion efforts. Please see this article from Venable LLC explaining the Executive Order, and this article from Venable LLC which discusses the recent guidance issued by the OFCCP on implementing this Executive Order.

Despite the fact that portions of this Executive Order may violate First Amendment protections and be inconsistent with other existing laws and regulations, failure to comply with it could result in severe consequences for nonprofits that contract with or receive grants from the Federal government. Nonprofit organizations that are federal contractors, subcontractors or grant recipients should revisit any training they are providing in light of the requirements imposed by the Executive Order.

UPDATE ON January 19, 2020

Office of Federal Contracts Compliance Halts Enforcement of Executive Order on Combating Race and Sex Stereotyping

In response to the December 22, 2020 preliminary injunction of the U.S. District Court for the Northern District of California enjoining enforcement of Executive Order (“EO”) 13950, Combating Race and Sex Stereotyping, previously discussed here, the Office of Federal Contract Compliance Programs (“OFCCP”) issued a Notice Regarding Executive Order 13950, suspending both the enforcement of, and collection of information under, EO 13950. In that Notice, the OFCCP indicated that it will shut down the hotline, cease investigating allegations of noncompliance, refrain from posting any additional Requests for Information, and suspend enforcement of the contract clauses listed in Section 4(a) of the EO.