A federal district court has entered a nationwide preliminary injunction stopping the administration from enforcing an order entitled Executive Order on Combating Race and Sex Stereotyping (EO), which was signed by President Trump on September, 22, 2020. The EO included requirements for government contractors when providing diversity and inclusion training and would have applied to contracts entered on or after November 21, 2020.
The EO prohibits federal contractors and subcontractors from using “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating,” including a list of “divisive concepts.” In addition, a clause implementing the requirements of EO 13950 was to be inserted into new federal contracts. The clause may have been inserted already into certain Department of Defense contracts.
The district court ruled that the EO violates the Free Speech Clause of the First Amendment “because it impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The court also ruled that parts of the EO are so vague that they violate the Fifth Amendment Due Process Clause because “it is impossible for Plaintiffs to determine what conduct is prohibited.”
A preliminary injunction is a court’s tentative conclusion that the plaintiff is likely to succeed on the merits of the case and otherwise meets the criteria for a preliminary injunction. Thus, the preliminary injunction may be rescinded as the case progresses or is reversed on appeal. For now, the OFCCP and other federal government agencies may not enforce the EO, and it appears that employers will be free to provide such training for the foreseeable future. However, it should be noted that the ruling does not impact ALL provisions of EO, just the specific portions in Sections 4 and 5 that created new requirements for federal contractors (new contract clause provisions and trainings) and federal grants (grant program certification regarding use of funds).
Next Steps for Employers
Federal contractors and grantees should continue to monitor developments to ensure they remain compliant with the current state of the law.