Executive Order 13950, the Anti-Diversity Training EO, is Enjoined by the Court - American Society of Employers - Anthony Kaylin

Executive Order 13950, the Anti-Diversity Training EO, is Enjoined by the Court

courthouseOn September 22, 2020, President Trump issued Executive Order (EO) 13950 titled “Executive Order on Combating Race and Sex Stereotyping.”  The EO arose because various federal agencies had a private diversity-consulting firm conduct a training session last June titled “Difficult Conversations About Race in Troubling Times.”  This EO is now enjoined as of December 23, 2020 and cannot be enforced by the federal government.

Specifically, the EO stated that “[i]nstructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country.” The EO sought to “foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics” and eliminate “un-American” and “divisive concepts” from Diversity and Inclusion trainings.  The EO established a requirement that contractors and grant recipients 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.”

The effective date of the EO was for any new contracts or grants entered into on or after November 21, 2020.

Different lawsuits against the EO arose.  In California, a number of non-profit community organizations and consultants serving the lesbian, gay, bisexual, transgender, and queer or questioning (“LGBTQ”) community and people living with the human immunodeficiency virus (“HIV”) filed a lawsuit in the U.S. Federal Court in the Northern District Court of California, San Jose Division. Many of their clients are people of color, women, and members of the LGBTQ community.  These organizations provide advocacy and training to health care providers, local government agencies, local businesses, and their own employees about systemic bias, racism, anti-LGBTQ bias, white privilege, implicit bias, and intersectionality. This training, the organizations believe, is fundamental to their mission of breaking down barriers that underserved communities face in receiving health care.

Further, the groups argued that a failure to comply with the order could result in the groups losing federal grants or contracts. And the order is “so vague” that it doesn’t give notice of what speech is prohibited, they said.

The court agreed with them and issued an injunction.  The court found that as the order’s prohibition on “workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating” restricts the groups’ training of their own employees regardless of whether a federal contract has anything to do with diversity training or “divisive concepts.”   The court also stated that the groups’ speech also addresses matters of public concern, such as racism and discrimination. On balance, the court ruled that the organizations’ interests in delivering diversity training outweighs the government’s interests, in training its employees.  Moreover, the court found that the terms used in the order do not adequately notify the groups of what it prohibits.

John Fox, Founder and Partner of Fox, Wang & Morgan P.C. and ASE presenter at its HR Comply Conference on December 3rd predicted that the EO would not hold up to court scrutiny.   Mr. Fox stated to ASE when requested for a comment “that 3/4ths of EO 13950 violated the First Amendment on its face. It was always a Trump base-rallying exercise. It served its purpose; I think the WH would say so.”   Mr. Fox also predicted that the EO would be one of the first to be revoked by President-elect Biden after inauguration. 

 

Source:  BLR 12/23/20

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