Alert 08.05.20
NLRB Establishes New Test for Employer Discharge of Employees for Abusive Comments
New standard grants more leeway to employers to prohibit abusive conduct, even in connection with otherwise protected, concerted activity.
Alert
09.28.20
On September 22, 2020, President Trump signed EO 13950, Combating Race and Sex Stereotyping. The EO’s stated goal is to “combat offensive and anti-American race and sex stereotyping and scapegoating,” and its provisions will apply to all federal contractors and subcontractors, as well as to federal agencies, the U.S. uniformed services, and certain federal grant recipients. The EO requires agencies, for contracts awarded on or after November 21, 2020, to include a clause that prohibits a contractor from providing workplace training that “inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” This prohibition defines the following as prohibited “divisive” concepts:
The EO defines the term “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 his or her race or sex.” The EO defines the term “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. 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.
Section 1 of the EO explains that the “purpose” of the Order is to prohibit “workplace diversity trainings” that, for example, critique narratives of “color-blindness.” The EO also criticizes workplace training materials that ask “non-minority males … to ‘acknowledge’ their ‘privilege.’”
Under the EO, contractors will be required to include the text of certain paragraphs in the EO in subcontracts, provide notice of these requirements to their labor unions, and display such notice in conspicuous places available to applicants and employees. If a contractor fails to comply with the EO, contractors will risk contract cancellation, termination, or suspension and may be declared ineligible for further government contracts. The EO states that it does not prevent “contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent” with the EO.
Practical implications for Federal Contractors
Although all other sections of the EO took immediate effect, the EO specifies that the section addressed to federal contractors “shall apply to contracts entered into 60 days after the date of this order.” Federal contractors are not prohibited from proceeding with any workplace diversity trainings scheduled to occur prior to November 21, 2020. Contractors also will not be subject to the EO after that date until the contractor enters into a new federal contract or subcontract—or, depending on the provisions of any implementing regulations, perhaps a modification of an existing federal contract or subcontract.
How and whether the EO’s provisions go into effect may depend on subsequent developments. The EO may attract legal challenge from federal contractors on First Amendment grounds and challengers may seek a preliminary injunction while the merits of their claims are litigated. In addition, Executive Orders are issued and rescinded by unilateral decision of the President; if the Presidential election ushers in a new administration in January 2021, this EO may be rescinded. Nonetheless, in the absence of legal developments to the contrary, contractors that become subject to the EO’s provisions should carefully scrutinize the content of workplace diversity trainings to ensure that the concepts being taught do not ascribe traits to any race or sex by virtue of that race or sex, and likewise do not assign blame “because of race or sex.”