Government contractors face a myriad of rules and regulations they must follow. Compliance can be daunting.
Now contractors have another order to comply with: effective November 22, 2020, government contractors face restrictions on the content of the workplace training they provide to their employees.
Let’s take a closer look.
These latest rules come from a September 22, 2020 Executive Order, entitled Executive Order on Combating Race and Sex Stereotyping. Without wading into the politics of the Order, its focus is on neutralizing the content of training provided by federal contractors. Importantly, contractors that violate the Order face the potential for significant penalties—including termination of a contract and, possibly, suspension or debarment.
It’s crucial, therefore, that contractors familiarize themselves with the Order.
In general, the Order requires a federal contractor to agree that, during the performance of its contract, it will not “use any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating[.]” These terms are broadly defined: race or sex stereotyping means “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,” and race or sex scapegoating means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.”
Examples of stereotyping or scapegoating include:
- One race or sex is inherently superior to another;
- An individual is inherently racist, sexist, or oppressive (consciously or unconsciously), by virtue of his or her race or sex;
- An individual should be discriminated against or receive adverse treatment, at least in part because of his or her race or sex;
- Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
- An individual’s moral character is necessarily determined by his or her race or sex;
- An individual bears responsibility for actions committed in the past by other members of the same race or sex;
- Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
- Meritocracy or traits such as hard work ethic are racist or sexist, or were created by one race to oppress another.
Subcontractors do not escape this prohibition: the contract must include the terms “so that such provisions will be binding upon each subcontractor or vendor.” Moreover, the Order indicates that a prime contractor can terminate a subcontractor for not complying.
Imposing requirements on federal contractors through Executive Orders is one of the most convenient way for the government to bring social change. I question, though, whether this Order will do more harm than good. Its prohibitions are broad and, at first blush, seem problematic under the First Amendment. But at a minimum, the Order imposes injects new considerations into difficult topics touching on race and gender discrimination.
Whatever misgivings one has about the new Order, federal contractors must be aware of its restrictions and comply with them. As noted, the new Order becomes effective November 22, 2020.
If you have any questions, please give me a call at (913) 354-2630, or email me at mschoonover@SchoonoverLawFirm.com.