Executive Order prohibiting “divisive” training is put on hold

Preliminary injunction stalls bias training order.

A federal judge in California has imposed a nationwide injunction prohibiting enforcement of portions of Executive Order 13950. The court’s Order grants a preliminary injunction against the application of the Executive Order to contractors and grantees. 

Background

President Trump issued Executive Order 13950, “Combating Race and Sex Stereotyping,” on September 22. We have previously reported on the Executive Order in more detail, but in summary, it prohibits federal contractors from “inculcating” in their employees certain concepts considered divisive. “Divisive” topics include race or sex stereotyping or scapegoating, and the idea that one race or sex is inherently superior to another race or sex. 

Both employers and civil rights organizations criticized the Executive Order for being confusing and infringing on employers’ rights to train employees on diversity issues, including unconscious bias. The Office of Federal Contract Compliance Programs issued FAQs addressing the Executive Order and its enforcement and said this about unconscious bias training:

Unconscious or implicit bias training is prohibited 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. Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.

Two lawsuits were filed challenging the legality of the Executive Order:  one by the National Urban League and the National Fair Housing Alliance, and one by the Santa Cruz Lesbian and Gay Community Center and other non-profit community organizations and interested parties. The second suit gave rise to the preliminary injunction.

The Parties

The Santa Cruz Lesbian and Gay Community Center and seven other organizations and consultants filed suit in the Northern District of California. The plaintiffs include community organizations that serve underrepresented members of society, including people of color and LGBTQ individuals, and they provide training to healthcare providers, government agencies, business, and their own employees on topics pertaining to systemic and unconscious bias and its effect on individuals receiving healthcare. The plaintiffs are all contractors or grantees concerned that the Executive Order requires them to abandon or alter the training sessions that are vital to their missions.

The defendants include President Trump and approximately 17 federal agencies and officials, including the U.S. Department of Labor, the U.S. Department of Justice, and OFCCP Director Craig Leen. 

The crux of the plaintiffs’ claims is that the Executive Order violates their First Amendment right to freedom of speech because it restricts their ability to train their own employees on matters that have nothing to do with a federal contract. They also argue that it violates the Due Process Clause of the Fifth Amendment because it fails to provide sufficient notice regarding what speech is prohibited. The plaintiffs contend that the Executive Order is so vague that they cannot determine what speech could lead to government penalties. 

The court order

The district judge, Beth Labson Freeman (an Obama appointee), agreed with the plaintiffs. 

Judge Freeman's findings include the following:

  • The plaintiffs have standing to seek redress because they could suffer harm if the Executive Order is enforced against them.
  • The plaintiffs are likely to prevail on the First Amendment claim because “the Government’s interest [in controlling the scope of diversity training] is outweighed by the effect of the impermissible reach of the Executive Order on Plaintiffs’ freedom to deliver the diversity training and advocacy that they deem necessary to train their own employees and the service providers in the communities in which they work, using funds unrelated to the federal contract.”
  • The plaintiffs are likely to prevail on the argument that the Executive Order impairs the free speech rights of federal grantees where they are required to certify that they will not use grant funds to promote the “divisive” concepts even when the grant is not related to such concepts.
  • The plaintiffs are likely to prevail on the Due Process claim because the prohibition on unconscious bias training is so vague that the plaintiffs cannot reasonably determine whether they can conduct such training without fear of penalty.

On this final point, Judge Freeman discussed the prohibition in the Executive Order on training that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” The court found that the ambiguity of this language “is only exacerbated” by the OFCCP’s FAQ (quoted above), which provides that such training is not outlawed if it “informs” as opposed to “teaches” or “implies.” According to the judge,  

The line between teaching or implying (prohibited) and informing (not prohibited) ‘is so murky, enforcement of the ordinance poses a danger of arbitrary and discriminatory application.’

Judge Freeman concluded that the plaintiffs are likely to prevail on their claims that the Executive Order unlawfully infringes on their freedom of speech and that it is void for vagueness. She also found that an injunction that was limited to the Northern District of California and the parties in the case would not adequately protect the plaintiffs from harm because it would not apply to third parties with which they contract; thus, she issued a nationwide injunction. 

The preliminary injunction applies only to Sections 4 and 5 of the Executive Order, which relate to contractors and grantees. It does not affect those sections applying to the federal workforce or to the United States Uniformed Services, as those portions were not at issue in this case. The Judge's order prohibits the federal agencies named as defendants from doing any of the following:

  • Including the contract clause in government contracts.
  • Requiring contractors to provide notice to unions.
  • Canceling or suspending a contractor for not complying with the Executive Order.
  • Requiring contractors to include the contract clause in subcontracts.
  • Using a hotline to collect information regarding contractors’ alleged noncompliance with the Executive Order.
  • Investigating contractors’ alleged noncompliance with the Executive Order and taking any enforcement action with respect to such noncompliance.
  • Publishing any additional requests for information regarding training programs of contractors.

The Order also directs the defendants to “take appropriate steps to ensure prompt compliance, and shall provide notice of this injunction to contractors, subcontractors, grantees, and sub-grantees for whom such terms have been imposed.” We note, that as of this writing, the OFCCP’s webpage on Executive Order 13950 is still active, but the agency has added the following notice:

Attention: OFCCP is complying with the recent preliminary injunction enjoining enforcement of Executive Order 13950 as to federal contractors. The agency will publish more information soon.

Significantly, the court’s Order is only a preliminary injunction, which -- although effective immediately -- could be reversed or modified upon further review by the court or on appeal. And of course, the case could become moot if (when) President-elect Biden rescinds the Executive Order in its entirety.

Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations.  With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals.  Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes.  Subscribe to both to stay current on these important topics!

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