In latest edition of The Wright Toolbox:
- New Executive Order Addresses “Race or Sex Stereotyping or Scapegoating” – read now
New Executive Order Addresses “Race or Sex Stereotyping or Scapegoating”
On September 22, 2020, a new Executive Order was issued addressing the subject of “race or sex stereotyping or scapegoating.” The Executive Order states “it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or in the Uniformed Services, and not to allow grant funds to be used for these purposes. In addition, Federal contractors will not be permitted to inculcate such views in their employees.” Under the Order, race or sex stereotyping means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” Race or sex scapegoating means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
Effective November 21, 2020, all government contracts entered into must include a provision that the government 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, including the concepts that: (a) one race or sex is inherently superior to another race or sex; (b) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (c) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (d) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (e) an individual’s moral character is necessarily determined by his or her race or sex; (f) 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; (g) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (h) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
In addition, with limited exceptions, government contractors will be required to include these new anti sex/race stereotyping/scapegoating provisions in every lower tier subcontract or purchase order, so that such provisions will be binding upon each subcontractor or vendor. The Order requires the government contractor to take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance. A government contractor that becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction may request the United States to enter into such litigation to protect the interests of the United States.
Government contractors are also required to send a notice (to be provided by the Contracting Officer) to each labor union or representative of workers with which they have a collective bargaining agreement or other contract or understanding advising the labor union or workers’ representative of the contractor’s commitments under the Executive Order. Such notice shall also be posted in a conspicuous place available to employees and applicants for employment.
In the event that a government contractor fails to comply with the requirements of the Executive Order, or with any rules, regulations, or orders that may be promulgated in accordance with the Executive Order, the government contractor’s contracts may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts and other sanctions may be imposed. If you have questions regarding this new Executive Order or need help with compliance please contact our Government Contracts Practice Group.