On his first day in office, President Biden revoked a controversial executive order enacted in September 2020 by then-President Trump, which prohibited federal contractors from conducting certain types of workplace diversity trainings.
Executive Order 13950, which the Trump White House issued on September 22, required all new and amended federal government contracts to include language prohibiting the contractor from implementing any workplace training that endorsed what the Order deemed “divisive concepts,” including that an individual, by virtue of his or her race or sex, is prone to behaviors that are inherently racist or sexist. The Executive Order also directed the establishment of a hotline for members of the public to report potentially unlawful training materials. (WilmerHale’s two previous client alerts discussing Executive Order 13950 are available here and here.) In December 2020, a California federal court judge issued a nationwide preliminary injunction prohibiting the Office of Federal Contract Compliance Programs (the “OFCCP”) (the division of the U.S. Department of Labor that oversees federal contractor compliance with nondiscrimination laws) from implementing, enforcing or effectuating Executive Order 13950, and the OFCCP subsequently issued its own notice stating that it would comply with the Court’s order.
President Biden’s new Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (available here), one of 17 he signed on his first day in office, rescinds Executive Order 13950 in its entirety and states that it is the policy of the Federal Government to “pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” The new Executive Order grants agencies 60 days to consider suspending, revising, or rescinding any agency action related to or arising from Executive Order 13950. Contracting agencies will need to rescind their requirements to include the rescinded prohibitions in federal contracts, and, presumably, modify contracts that already contain the rescinded prohibitions. The new Executive Order also directs the Office of Management and Budget to study methods for assessing whether federal agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals and establishes an Equitable Data Working Group to help measure and advance equity.
The WilmerHale employment, anti-discrimination, and government contracting teams will continue to monitor new developments under the Biden Administration and are available to assist Federal contractors in their compliance obligations.
