Hours after taking the oath of office, President Joseph Biden shifted the tenor of White House policy by undoing a number of actions taken by former President Donald Trump during his presidency. Among the 17 executive orders, memoranda, and proclamations Biden signed on inauguration day was the “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” ( the “Order”), which, most notably, expressly revoked his predecessor’s contentious Executive Order 13950.
What Was Executive Order 13950?
Issued on September 22, 2020, Executive Order 13950 was, among other things, designed to bar federal agencies and their contractors and subcontractors from conducting diversity or inclusion training that promotes “divisive concepts,” a term intended to encompass training that teaches that “the United States is fundamentally racist or sexist,” and “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”
Executive Order 13950 not only prohibited such trainings within its own ranks, but also precluded private contractors and subcontractors of the federal government from “inculcating such views” in their own diversity and inclusion trainings by threatening contract and grant termination or even debarment if contractors and subcontractors failed to comply.
Critics of Executive Order 13950 argued that it had the purpose and effect of chilling diversity and training initiatives that have been historically sanctioned by the Supreme Court, the Equal Employment Opportunity Commission (“EEOC”), the Office of Federal Contracting and Procurement and federal union collective bargaining agreements, as well as a violation of the First Amendment.
Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government
President Biden’s revocation of Executive Order 13950 was accompanied by his own presidential order aimed to establish administrative policy espousing the objective of advancing equity for persons of color and those of the historically underserved communities. The Domestic Policy Counsel head, Susan E. Rice, will lead these efforts, which will require all federal agencies to make “rooting out systemic racism” a pivotal component of their missions.
Specifically, within six months of the date of this Order, the Office of Management and Budget (“OMB”) is mandated to study and report its findings on whether agency policies and actions “create or exacerbate barriers to full and equal participation.” Likewise, within 200 days, all agency heads must determine ways to allocate resources to underserved communities where investment through government benefits, services, and other government resources has been lacking historically. The agency heads shall then suggest plans to remove the inherent barriers the underserved communities face in accessing and enjoying these opportunities. To facilitate the necessary data analysis, the Order also creates an interagency working group that is designed to gather and disaggregate data by race, gender, disability, income, veteran status, or other key demographic identifiers. This data will be used by agencies to measure equity and capture diversity to better serve the foregoing objectives.
Although President Biden’s Order revoked Executive Order 13950, it is important to note that it operates prospectively, and thus does not expressly invalidate any previous action taken by federal agencies to punish contractors. It simply directs agency heads, within 60 days of the Order, to consider suspending or rescinding such punitive actions. Accordingly, any contractors or subcontractors whom punishments were pursued by federal agencies prior to this Order due to contractors conducting trainings of “divisive concepts” may have no specific redress under the language of this Order.
If you or your company changed its training regimen or was subject to enforcement pursuant to Order 13950 during the Trump administration, Leech Tishman is prepared to assist you in evaluating the most efficient and effective steps to take in order to be in compliance with federal training requirements as they now stand. If you would like to discuss this Executive Order in further detail, or you would like to review your Company’s employment protocols in light of this Order, please reach out to Leech Tishman’s Employment & Labor Practice Group.
Steven D. Irwin is a Partner and a member of the Corporate, Employment & Labor and Litigation Practice Groups. He also is Chair of the Government Relations Group. Steve is based in the Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org.
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