Stay Alert: Trump’s Executive Order on Diversity Training
As 2020 moves from crisis to crisis, it’s easy to focus only on what might have immediate impact on our work. But don’t write this Executive Order (EO) off yet. Its impact could stick around longer than the national leadership transition in January. It has already presented nonprofits with an ethical dilemma, with very real consequences:
On September 22, 2020, President Trump signed an Executive Order (EO) on Combating Race and Sex Stereotyping. Essentially, this EO prohibits federal departments and agencies, the military, federal contractors, and some federal grant recipients from providing training on race or sex diversity, equity, or inclusion that involves any of eleven “divisive concepts”. Banned concepts include anything that makes someone “feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex” [Sec. 2(a)(8)]. This guidance may be further extended to include all employers.
The EO and a related memorandum from the Office of Management and Budget (OMB) reverse previous laws and guidelines (e.g., President Lyndon Johnson’s 1965 Executive Order) that advance equal and fair treatment. And they do so under the guise of advancing racial equity – “defining divisive concepts in a way that turns mechanisms intended to protect into weapons of division and exclusion” (Accreditation Council for Graduate Medical Education, September 2020). This guidance seeks to make “color-blindness” the law of the land. The recognition of systemic racism and sexism is seen as “anti-American”.
Legal challenges to the Executive Order include the following:
The EO is unconstitutional, violating due process and free speech.
The EO conflicts with existing civil rights laws, including Title VII.
The EO violates various statutes and procedural requirements, including the Administrative Procedure Act, the Paperwork Reduction Act, the Federal Acquisition Regulation, and the OMB Uniform Guidance governing federal grants.
Enforcement mechanisms include, but are not limited to:
Hotline to report violations of policy (including if made to feel discomfort, guilt, anguish, or any other form of psychological distress)
Termination or suspension of contracts/grants to organizations that do not comply, with ineligibility going forward
Punishment of supervisors who permit unauthorized training
How this Impacts Nonprofits:
Philosophically, this guidance undermines our sector’s civil rights work by and for marginalized communities, while fostering division and hate.
Practically, anyone receiving federal funding either directly or as pass-through money from the state may be at risk for losing that funding should they continue anti-bias training, a critical component of our collective work in combating racism.
November 21 was the deadline for when contracts started including restrictions on “workplace trainings”.
At this point, you can still use non-federal funds to deliver anti-bias training.
Things to Consider:
Rumors indicate that this issue is on Biden’s To Do list very early on in his Administration, if not explicitly listed in his First 100 Days priorities. But there is no guarantee that regulations can be easily unraveled.
Legal challenges have been considered by for-profit businesses, state attorneys general, local government groups, nonprofits, health care providers, and more. In one hearing in a federal lawsuit filed by six LGBT groups, a federal judge expressed her view that the restrictions in the EO could be applied in arbitrary and discriminatory ways and discourage speech by federal contractors and vendors even when they are not working on a government contract. The judge did not say when she could rule on the plaintiffs’ request for a preliminary injunction blocking the EO, but gave them until the end of this week to submit a filing clarifying the scope of the injunction they are seeking (Reuter’s Westlaw Today, December 10, 2020).
Above all else, we can:
Double-down on our commitment to deliberately advance racial and gender equity.
Support organizations engaging in legal challenges to strike down this EO.