Government Contracting Insights.

• Author: Burke, Lindsay

Trump Order Bans 'Divisive Concepts' in Training

On Sept. 22, President Donald Trump issued the "Executive Order on Combating Race and Sex Stereotyping" establishing requirements aimed at "promoting unity in the federal workforce," by prohibiting workplace training on "divisive concepts," including "race or sex stereotyping" and "race or sex scapegoating" as newly-defined in the order. The directive is broadly applicable to federal contractors and federal grant recipients, as well as executive departments and agencies and the uniformed services.

The order expands on a letter issued in early September by the director of the Office of Management and Budget that tasks all agencies to begin to identify contracts or other agency spending on trainings that include "critical race theory," "white privilege," or "un-American propaganda," in an effort to ensure "fair and equal treatment of all individuals in the United States."

On Sept. 28, OMB issued a "Memorandum for the Heads of Executive Departments and Agencies" with additional guidance aimed at assisting agencies in identifying diversity and inclusion trainings for agency employees that may be subject to Trump's executive order. The memo suggests that agencies conduct keyword searches of training materials for specific terms, such as "intersectionality," "systemic racism" and "unconscious bias." It explains the terms and provides additional insight concerning the breadth of agency trainings that may ultimately be considered to violate the terms of the executive order.

"Federal contractors... could soon be subject to the compliance requirements."

Although the executive order is likely to be subject to legal challenge, federal contractors, including subcontractors and vendors, could soon be subject to the compliance requirements.

If the directive is implemented on schedule, all government contracts entered into by Nov. 21--with the limited exception for contracts with religious entities exempt from certain nondiscrimination requirements--must contain a prescribed clause that the contractor will not use any workplace training that includes divisive concepts. Unless a Department of Labor exemption applies, contractors must also flow down and potentially enforce these new requirements for subcontractors and vendors. They must conspicuously post--where it will be seen by employees and applicants for employment--a notice provided by the relevant agency contracting officer of the contractor's...