Court Enjoins Trump Executive Order on ‘Divisive Concepts’ in Workplace Trainings

January 2, 2021Alerts

A federal judge issued a nationwide injunction on Dec. 22 to block enforcement of an executive order that would have effectively prohibited federal contractors, federal agencies, recipients of federal grants and the military from conducting workplace trainings on implicit bias.

President Trump said in Executive Order 13950 that it was issued to combat so-called “offensive” and “anti-American” race and sex stereotyping and scapegoating. The EO cited alleged concerns of a pervasive and “malign ideology” rooted in the “pernicious and false belief that America is an irredeemably racist and sexist country.”

Specifically, the EO forbids promoting a list of “divisive concepts” in workplace diversity trainings conducted by the U.S. Uniformed Services, federal agencies and federal contractors.

In a court challenge, a coalition of nonprofits and consultants argued that the EO would frustrate their efforts to train employees about systemic bias, racism, anti-LGBTQ bias, white privilege, implicit bias and intersectionality.

The suit alleges that the EO would require the plaintiffs to either censor or cease the trainings that are fundamental to their mission of breaking down barriers that underserved communities face or risk losing federal funding in the form of contracts and grants. The suit also alleged that the EO is so vague that it fails to provide notice of what speech is actually subject to penalty.

In a 34-page order, U.S. District Judge Beth Labson Freeman of the Northern District of California issued an injunction that blocks the key provisions targeted by the plaintiffs.

The EO consists of 10 sections. Section 4 would require that all government contracts include certain express provisions providing that during the performance of the contract, “[t]he contractor shall 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.” A violation of Section 4 could result in the cancelation, termination, suspension, in whole or in part, of federal contracts.

Section 5 directed the heads of all federal agencies to review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use federal funds to promote certain “divisive concepts.”

Initially, the plaintiffs asked for a nationwide injunction against the EO in its entirety, but they later narrowed their request to an injunction limited to Section 4 and Section 5.

Nationwide Preliminary Injunction

Judge Freeman’s nationwide preliminary injunction prohibits the federal government from implementing or enforcing Sections 4 and 5 of the EO against any federal grant recipient or federal contractor. The court found that requiring federal grantees to certify that they will not use grant funds to promote concepts the Government considers “divisive,” even where the grant program is wholly unrelated to such concepts, violates the grantee’s free speech rights.

The judge also found that the EO was so vague that it was impossible for plaintiffs to determine what conduct is prohibited. She noted that the ambiguity regarding the conduct prohibited by Sections 4 and 5 was only exacerbated by the FAQs issued by the Department of Labor’s Office of Federal Contract Compliance Programs, which failed to narrow prohibited action. Such ambiguity further violated the Due Process Clause of the Fifth Amendment, Judge Freeman found.

The Department of Justice has yet to announce whether it will appeal the injunction, and a new administration will take office at noon on January 20, 2021. While the incoming administration is widely expected to rescind the EO, this ruling was highly anticipated and celebrated by diversity and inclusion professionals, social justice organizations and employers in many different industries. This is particularly noteworthy given the number of employers that have publicly committed to enhance their diversity and inclusion efforts in light of the racial unrest that has unfolded nationally throughout 2020.

It remains important for employers, particularly federal contractors and federal grant recipients, to stay informed of developments in this area as they augment and modify their diversity and inclusion efforts in 2021 and beyond. We will continue to monitor this case and provide any updates on any future developments regarding this Executive Order.

For more information about this alert or workplace trainings in general, contact Gray Mateo-Harris at [email protected] or 312.517.9292, Kelsey Schmidt at [email protected] or 312.517.9293, Mayra Bruno at [email protected] or 312.517.9297, or any member of the firm’s Labor & Employment Law Department.