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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 22, 2020

What Employers Can Expect Under the Biden Administration: Diversity Training

This alert is another in the series covering changes employers can expect to labor and employment policy from President-elect Joseph Biden’s administration.

President-elect Joseph Biden and Vice President-elect Kamala Harris have pledged to make significant changes to the American workplace, including an expansion of workers’ rights. Though there is still uncertainty, Barclay Damon’s alert series will shed light on what employers can likely expect to see under the Biden administration.

Diversity Training

In Executive Order 13950, issued on September 22, 2020, President Trump attempted to correct what he perceived to be a problem in diversity training with respect to the widely accepted theory of “implicit bias”—attitudes or stereotypes that affect one’s understanding, actions, and decisions in an unconscious manner. The executive order prohibited diversity training when that training taught or implied an individual, by virtue of their race, sex, or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously. The executive order contained an enforcement mechanism, required federal contractors to insert specific language prohibiting such training in their contracts, and required federal contractors and agencies to provide information of implied bias training programs to the Office of Federal Contract Compliance Programs (OFCCP).  

The executive order was roundly criticized by workers and a number of business groups, has been challenged in court (National Urban League v. Trump, No. 1:20-CV-03121 (D.D.C. Oct. 29, 2020)), and is subject to federal legislation introduced in the House of Representatives (H.R. 8595). In an open letter to President-elect Biden dated November 20, 2020, more than 50 charitable organizations, including the American Heart Association, the Girls Scouts of the USA, Habitat for Humanity, and the March of Dimes, urged the rescission of Executive Order 13950, arguing it had a chilling effect on diversity, equity, and inclusion training. 

It is almost certain President-elect Biden will rescind Executive Order 13950 shortly after assuming the presidency. An important plank in the Biden-Harris Build Back Better plan is advancing racial equality. As part of that initiative, candidate Biden pledged to address discrimination and harassment in the workplace, including a specific pledge to advocate for and sign the Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace (BEHEARD) Act (H.R. 2148). One provision of the BEHEARD Act mandates nondiscrimination training by employers.

The bigger issue is the effect of the anticipated rescission of Executive Order 13950. The executive order required limiting language in every federal contract entered into after November 21, 2020. That requirement would continue until President-elect Biden rescinds Executive Order 13950. It is uncertain whether the anticipated rescission of Executive Order 13950 would render those contract provisions unenforceable.

Similarly, federal contractors have been required to provide information on the training programs to the OFCCP for review. Contractors found not to be in compliance with the provisions of Executive Order 13950 could be subject to sanctions, including cancellation of federal contracts. It is unclear whether the Biden administration could reverse any enforcement actions taken by OFCCP in the interim period. Federal contractors, therefore, should remain mindful of the terms of Executive Order 13950 until President Biden rescinds that order.

Once Executive Order 13950 is rescinded, as is anticipated, federal contractors can once again provide their employees with training on implicit bias without concern that they are running afoul of federal law. In fact, if the BEHEARD Act becomes law, this training may be mandated, expanding an employer’s obligation to provide such training.

If you have any questions regarding the content of this alert, please contact Alan Peterman, partner, at apeterman@barclaydamon.com; Michael Murphy at mjmurphy@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area.

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