Executive Order Limits Diversity and Inclusion Trainings by Federal Contractors

On September 22, 2020, the President signed an executive order prohibiting federal contractors from conducting certain workplace diversity and inclusion trainings that instruct employees about concepts such as white privilege and structural racism and sexism. The order covers a list of “divisive concepts” and requires that federal contracts include a clause prohibiting contractors and subcontractors from conducting training on such concepts, whether or not the training is paid for using federal funds. 

Most CAAs and Community Action Network organizations are federal grantees rather than federal contractors, and the restrictions in this executive order do not currently apply to federal grantees. The order directs federal agencies to review each of their grant programs to determine which grants could require, as a condition of receiving funding, a certification that federal funds will not be used to provide trainings on these “divisive concepts”. This order does not indicate that the certification would extend to federal grantee trainings paid for with non-federal funds. Each federal agency is directed to submit a report identifying such grant programs to the Office of Management and Budget (OMB) within 60 days of this executive order.

For now, the Community Action Network should wait for additional guidance from their federal funding agencies before implementing any changes pursuant to this executive order. At this point, it is unclear what, if any, changes to proposed projects relating to equity and inclusion may be required.

It is possible that this executive order and any forthcoming guidance related to federal grantees could be challenged in court. CAPLAW will continue to monitor related developments and will keep the network informed about any updates as they become available.

Prohibitions Under the Executive Order

Under the order, “divisive concepts” is defined as the following concepts:

1. one race or sex is inherently superior to another race or sex;
2. the United States is fundamentally racist or sexist;
3. an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
4. an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
5. members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
6. an individual’s moral character is necessarily determined by his or her race or sex;
7. an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
8. any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
9. meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The term “divisive concepts” also includes what the order calls “race or sex stereotyping” or “race or sex scapegoating”. “Race or sex stereotyping” is defined 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”. “Race or sex scapegoating” is defined 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.

Federal contractors that train employees on such “divisive concepts” may have their contracts canceled, terminated, or suspended, or may be disbarred. The executive order also directs the U.S. Department of Labor to establish a hotline and investigate complaints received about potential violations of the order.

Distinctions Between Federal Grantees and Federal Contractors

As a general rule, because CAAs are federal grantees, rather than federal contractors, they are not required to comply with rules imposed on federal contractors. The federal government distinguishes between those vendors from which it buys products or services to be used by the government (i.e., contractors), and those entities to which it provides funds to benefit the public at large (i.e., grants or federal assistance). Therefore, unless a CAA receives a direct federal contract (as opposed to a federal grant, such as Head Start or CSBG), it is not a federal contractor. One example of a situation where a CAA might be a federal contractor is if it provides services under a contract with the U.S. Department of Health and Human Services’ Office of Women’s Health, which sometimes issues federal contracts for services rather than grants.

This News Flash is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03. Any opinion, findings, conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

The contents of this news flash are intended to convey general information only and do not constitute legal advice. Any communication through this publication or through CAPLAW’s website does not constitute or create an attorney-client relationship. If you need legal advice, please contact CAPLAW or another attorney directly.