President Biden signed a flurry of executive orders on January 20, 2021, his first day in office, a number of which rescinded or revised the prior administration’s executive orders and policies with regard to equity in the workplace.
Notably, Mr. Biden formally rescinded the prior administration’s Executive Order 13950, which sought to limit federal contractors and the recipients of federal grants from discussing “divisive” topics in workplace trainings on issues of diversity and inclusion (D&I), including what that order called “stereotyping” and “scapegoating” on the basis of race or sex. The order generated significant controversy in the federal contractor community, and confusion for those employers that wish to pursue D&I initiatives. In December 2020, a federal district court enjoined the order nationally, finding key provisions of the rule unconstitutional restrictions on free speech, as well as impermissibly vague. President Biden’s action formally rescinds the rule in its entirety.
Prior Administration’s Actions
On November 20, 2020, the Office of the Principal Director for Defense Pricing and Contracting, within the Office of the Under Secretary of Defense for Acquisition and Sustainment, issued a Defense Federal Acquisition Regulation Supplement class deviation requiring that all military departments and DoD agencies include the required EO 13950 contract provision in contracts issued on or after November 20, 2020. Therefore, it is possible that some federal contractors or subcontractors may have contracts with language purporting to implement Executive Order 13950. Between the district court’s injunction and President Biden’s revocation of the executive order, however, such contractual provisions should not have any continuing force. Nevertheless, employers that have signed contracts or subcontracts that include provisions referencing the requirements of Executive Order 13950 may wish to consult legal counsel regarding their obligations.
In connection with Executive Order 13950, the Office of Federal Contract Compliance Programs created a hotline to collect information and complaints regarding contractors’ alleged noncompliance with the order. After the federal court decision enjoining OFCCP from implementing, enforcing, or effectuating Executive Order 13950, OFCCP issued a notice stating that it will cease using any hotline to collect information regarding contractors’ alleged noncompliance with Executive Order 13950, will cease investigation of any alleged noncompliance with Executive Order 13950 received through the hotline or any other means, and will not take any enforcement action or seek remedial relief as a result of such alleged noncompliance with Executive Order 13950.
New Executive Order
In place of Executive Order 13950, the president signed Executive Order 13985 stating that it is the policy of his administration “that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.” The order directs the Office of Management and Budget and executive agencies to identify best practices for assessing equity issues in the federal government and responding to them. The order also creates a federal interagency working group designed to gather data on equity in federal data collection programs and policies.
With respect to LGBT individuals, the new president signed a separate order on “Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation.” This order notes that insofar as Title VII of the Civil Rights Act of 1964, as interpreted by the U.S. Supreme Court in its Bostock v. Clayton County decision, prohibits discrimination on the basis of gender identity or sexual orientation, such discrimination is also prohibited under other federal laws relating to housing, education, and immigration, so long as they “do not contain sufficient indications to the contrary” (none appear to). The executive order further directs the heads of all federal agencies to review existing regulations, orders, and guidance to ensure that they are consistent in their protection of LGBT status, and if necessary, take administrative actions to revise them accordingly.
Based on the first days of his administration, it is clear that President Biden will not be shy about using the executive power of the presidency to pursue and advance his policy initiatives.