Q: What do I need to know about conducting workplace diversity and racial sensitivity training in light of Executive Order 13950?

Conscientious employers understand the importance of offering training to their workforces on diversity, equal employment opportunity, and unlawful discrimination and harassment prevention. Many employers are reviewing and refreshing their training programs considering recent social justice activities and the Black Lives Matter movement, and still more have issued related public statements regarding diversity, equity, and inclusion. But some of these employers (federal contractors) were thrown for a loop when President Trump issued Executive Order 13950 on September 22, titled “Combating Race and Sex Stereotyping.”

The executive order, which seeks to “combat offensive and anti-American race and sex stereotyping and scapegoating” and end so-called “divisive concepts” promulgated in workplace employee trainings, prohibits certain covered government contractors from conducting diversity and inclusion trainings that cover topics suggesting people of a certain race or gender are “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

The order applies to all contractors and subcontractors covered by Executive Order 11246 and over whom Office of Federal Contract Compliance Programs (OFCCP) has jurisdiction. It does not define or limit the term “contractor.” Thus, it appears that the new training requirements apply to all employees of a covered contractor, not only those in the division that transacts business with the federal government.

Many questions remain about the executive order’s implications, including whether it will survive legal challenges or the upcoming presidential election.  For the time being, however, Executive Order 13950 is in effect, and the OFCCP has confirmed that its requirements for federal contractors and subcontractors will apply to contracts entered into on or after November 21, 2020.
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