Federal Court Issues Nationwide Order Enjoining Enforcement of Trump Executive Order on Diversity Training

28 December 2020 Labor & Employment Law Perspectives Blog
Author(s): Carmen N. Decot (Couden)

As previously reported, on September 22, 2020, President Trump issued Executive Order 13950 on Combating Race and Sex Stereotyping (Order), which barred federal agencies, federal contractors, and recipients of federal grants from conducting diversity and inclusion training that promotes “divisive concepts” involving any form of “race or sex stereotyping” or “race or sex scapegoating.” 

The controversial Order, which took effect on November 21, 2020, also required the Office of Federal Contract Compliance Programs (OFCCP) to establish a new complaint hotline and required affected employers to incorporate references to the Order in their government contracts and submit copies of their diversity and inclusion training materials to the OFCCP for review.  The OFCCP subsequently published guidance addressing various Frequently Asked Questions and confirmed that training on unconscious or implicit bias was prohibited by the Order “to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.”

At the time the Order was issued, affected employers were left wondering whether changes would be required to their nondiscrimination, anti-harassment, and diversity and inclusion training and whether the expected legal challenges would overturn the Order or prevent it from being implemented.  Following the election, President-elect Biden’s approach to the Order has also been a topic of discussion, with the incoming president widely expected to rescind the Order following his inauguration.  However, as it turns out, federal contractors and grant recipients didn’t have to wait that long for relief from the Order.

On December 22, 2020, in response to a lawsuit filed by the Santa Cruz Lesbian and Gay Community Center and other nonprofit groups, a California federal court judge issued a nationwide preliminary injunction prohibiting the federal government from enforcing the Order against federal contractors and federal grant recipients.  In doing so, the court concluded that the provisions of the Order applicable to federal contractors and federal grant recipients violate their First Amendment free speech rights because the Order “impermissibly chills the exercise of [their] constitutionally protected speech, based on the content and viewpoint of their speech.”  The court also found that the Order runs afoul of the Fifth Amendment’s due process clause because it is so vague that covered contractors and grant recipients cannot determine what conduct is prohibited. 

Although the court’s injunction is not permanent and may be reversed if challenged, for now the OFCCP and other government agencies are prohibited from enforcing the Order against federal contractors or grant recipients so long as the injunction remains in effect.  To that end, the OFCCP’s website already indicates that it is complying with the preliminary injunction and will publish more information soon.  In the meantime, it remains to be seen whether President-elect Biden will eventually rescind the Order (which remains in effect as to federal government agencies, which were not impacted by the California court’s injunction).  We will continue to monitor changes in this area and will provide updates on any future developments regarding Executive Order 13950.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services