The Impact of Executive Order 13950 on DEI&A Initiatives

ExecutiveOrder 13950

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On September 22, 2020, President Trump issued Executive Order 13950, “to promote economy and efficiency in Federal contracting to promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping and scapegoating.” On its face, the executive order seems to be an effort to further discourage discriminatory hiring practices. However, Title VII of the 1964 Civil Rights Act, in addition to Executive Order 11246 (requiring workplace affirmative action), GINA, ADA, and other comprehensive reforms already provide legal redress for protected classes. Executive Order 13950 does little to strengthen the enforcement of these standing federal protections, leading to questions regarding its intent.

 

The executive order works in concert with the recent order M-20-34, released by the OMB, entitled Training in the Federal Government (Sept. 4, 2020). The order requires executive departments and agencies to “identify all contracts or other agency spending related to any training on ‘critical race theory’ [or] ‘white privilege.’” It also classifies diversity training encompassing these ideas as “propaganda effort that teaches or suggests… that the United States is an inherently racist or evil country.” M-20-34 gives the OMB authority to take punitive action against any agency engaging in critical race theory training; EO 13950 increases the scale of this authority, enabling disciplinary actions against discussions of unconscious heteronormative bias (reframed as “sex scapegoating”), while also allowing for the withdrawal or barring of federal funds for contracts or grants to any organization receiving them.

What Is Critical Race Theory?

Synthesized in the 1970s, and drawing from the work of civil rights leaders and academics, Critical Race Theory (CRT) seeks to examine the beliefs and practices which allow manifestations of racism to permeate American life. Workplace training and DEI initiatives rooted in CRT examine unconscious biases, addressing commonly accepted phenomena such as white privilege, microaggressions, institutionalized racism, and race as a social construct. Essential to using CRT for the advancement of inclusion in the workplace is open discussion:

“Our social world, with its rules, practices, and assignments of prestige and power, is not fixed; rather, we construct with it words, stories and silence… By writing and speaking against them, we may hope to contribute to a better, fairer world.” — Delgado, Richard and Jean Stefancic, Critical Race Theory: The Cutting Edge. 3rd ed., 2013

Who Does This Affect?

Executive Order 13950 establishes a hotline to report any purportedly “anti-American workplace training” for organizations receiving federal funding. This includes federal contracts and grants, which can be revoked if contractors are found in violation of the order. Organizations can also be disqualified from future government funding. The criteria for a violation of this order are wide-reaching and seemingly opaque, with guidelines suggesting any training in which “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; or, [that] meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.”

These broad strictures seem to reflect an ethos fomenting in the administration’s current actions to counter initiatives to further diversity, equity, inclusion, and access. On Thursday, October 8, the Justice Department filed a suit against Yale University for “race and national origin discrimination” when the university refused to adhere to the DOJ’s demand that Yale refrain from using race or national origin in the 2020-2021 admissions cycle. The president has repeatedly rallied against the 1619 Project, which — in line with Critical Race Theory — aims to reframe the country’s historical narrative with regard to slavery and the contributions of black Americans. He’s also called for a program to reinstate the teaching of “American Exceptionalism.” Polling shows that the myth of “anti-white discrimination” is considered a real and pressing issue for many of the president’s supporters (with two-thirds of those reporting approval of Trump’s performance agreeing that “discrimination against whites has become as big a problem as discrimination against blacks and other minorities”). The president himself has been openly willing to attack Critical Race Theory: when asked by Chris Wallace in the first presidential debate why he “directed federal agencies to end racial-sensitivity training,” he said the following: “I ended it because it’s racist… [people] were asked to do things that were absolutely insane… they were teaching people to hate our country.”

As of the publishing of this article, the Department of Labor has issued a request for information regarding any anti-American workplace training by October 22, 2020. The order pertains specifically to federal contractors, federal subcontractors, and employees of federal contractors and subcontractors.

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The Impact of Executive Order 13950 on DEI&A Initiatives
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The Impact of Executive Order 13950 on DEI&A Initiatives
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Starting in November 2020, EO 13950 goes into effect for OFCCP-connected companies. Here’s what business leaders should know about the order’s impact.
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Trusaic
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