Some Bias Training Still Permissible Under Trump’s Executive Order

President Trump issued Executive Order 13950 (EO) on September 22nd on “Combating Race and Sex Stereotyping.”  The EO prohibits covered government contractors from conducting diversity and inclusion trainings that cover topics suggesting people of a certain race or gender are “inherently racist, sexist, or oppressive, whether consciously or unconsciously.” 

EO 13950 caught many contractors by surprise and left them wondering what training programs might be permissible moving forward and how the EO will be administered.  To that end, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently published answers to certain Frequently Asked Questions (FAQs), which provide some helpful clarifications and insights for covered contractors.

  • “Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.
  • Training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.”
  • According to OFCCP, the EO “became effective immediately when signed on September 22, 2020, but the requirements for federal contractors and subcontractors will apply to contracts entered into 60 days after the date of the executive order—November 21, 2020.” 
  • The OFCCP will only begin enforcing the requirements of EO 13950 once it becomes effective in the federal courts.

Moving forward, federal contractors can continue to implement unconscious and implicit bias trainings so long as the trainings do not teach that specific people are groups are inherently biased based on race, sex, etc.  So long as the training instead seeks to address the development of biases, stereotypes, and pre-conceptions generally about people and their differences, then contractors should not run afoul of EO 13950. OFCCP Director, Craig Leen, has noted that unconscious bias training is “perfectly fine” as long as the training “teaches that everyone, based on the human condition, has unconscious biases,” and does not specifically call out a particular race, national origin, or sex as being inherently biased.