The executive order bars the use of “divisive concepts,” including the idea that the United States “is fundamentally racist or sexist” or that an individual, “by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” Three of the four examples in the order describe training that references White people, White males or Whiteness.
Recent Labor Department letters that questioned two companies about their stated goals to increase minority representation amid the Black Lives Matter protests this summer have also caused alarm.
Associations representing American hospitals, physicians and nurses said the order “would effectively reverse decades of progress in combating racial inequality” and called for it to be rescinded. The Business Roundtable joined the Chamber and other groups, saying the order was “already having a broadly chilling effect on legitimate and valuable” training.
The Pharmaceutical Research and Manufacturers of America, American Association of Advertising Agencies, HR Policy Association and other business groups have also denounced the order, as have the American Civil Liberties Union and the National Council of Nonprofits, the latter of which worked with the Chamber to produce a joint letter.
“I’ve never seen this type of response, in the form of letters, that have put the contractor community and progressive groups on the same page,” said Chris Wilkinson, senior counsel with the law firm Perkins Coie and a former associate solicitor for the Labor Department.
Few federal contracting companies have spoken out individually against the executive order, which also applies to executive agencies, the military and recipients of federal grants, in the heated political environment leading up to the election, relying instead on trade groups to condemn the new rules.
The Information Technology Industry Council, a software and technology industry group that includes Apple, Samsung and Amazon co-signed a letter earlier this month with 10 other groups warning that the order raises concerns about businesses’ First Amendment rights. (Amazon CEO Jeff Bezos owns The Washington Post.)
“The federal government should not be in the business of dictating to companies how to talk to their employees about important societal issues and should certainly not be dissuading employees from endeavoring to address issues of systemic racism and racial discrimination,” said Jason Oxman, the ITI’s president.
For companies that contract with the federal government, enforcement of the new order will fall mostly to the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP), which ensures that federal contractors are not discriminating against their employees because of race, sex and other issues.
Some current and former labor officials and industry experts suggested the normally staid contracting office was being dragged into the culture wars or that the order was a political ploy. The new mandate, some said, is confusing in part because discriminating on the basis of race and sex has been prohibited for federal contractors for decades by an order signed by President Lyndon B. Johnson in 1965, Executive Order 11246.
“It’s sort of a bizarre overreach,” said Lawrence Z. Lorber, who headed the office for a period during the 1970s under President Gerald Ford, saying that the OFCCP was traditionally nonpartisan. “Executive orders tend to be political documents, in some respect.”
Others saw the order as an effort to stall progress for racial equity movements.
“I do think these two efforts are part of a larger strategy by this administration to foster fear regarding employer efforts to advance equity,” said Jenny Yang, who led the U.S. Equal Employment Opportunity Commission under President Barack Obama.
Ellen Shong Bergman, who led the office in the early 1980s during the Reagan administration, disagreed, saying that trainings about superiority or privilege on the basis of race are “precisely the kind of things the agency has been worried about for all of its enforcement history.”
“The complaint system and the compliance review system are concerned with both intentional discrimination and unintentional discrimination — regardless of motivation,” she said.
The Labor Department disputed the criticism.
“The Department of Labor is 100 percent committed to OFCCP’s mission of ensuring equal employment opportunity among federal contractors,” it said in a statement. “Race and sex stereotyping and scapegoating are discriminatory and harmful.”
The contracting office has taken other steps in the wake of the order.
The office sent letters to two high-profile companies — Microsoft and Wells Fargo — seeming to warn them over pledges the companies made this summer to increase the diversity of their leadership ranks.
Setting aspirational diversity goals is completely legal, said Yang, noting that federal contractors already have an obligation to engage in affirmative action because of the Johnson order. (In a blog post, Microsoft General Counsel Dev Stahlkopf said, “We have every confidence that Microsoft’s diversity initiative complies fully with all U.S. employment laws.” Wells Fargo said through a spokesman that it was confident its efforts to become a more “diverse and inclusive company” were lawful.)
The OFCCP has also set up a hotline for employees to report incidents of “race and sex stereotyping,” as well as other forms of discrimination. The hotline has received 81 complaints thus far, officials said. The Labor Department also published a “request for information” in the Federal Register last week seeking more information from the public or contractors about workplace trainings on diversity.
The order is due to go into effect in late November, raising questions about how much weight it will have should former vice president Joe Biden win the election.
Howard Ross, a diversity consultant whose firm produced a seminar that was cited in the executive order, had spoken to a few CEOs “whose attitude is why throw yourself on a sword and make a big kerfuffle of this if you can put this off for a couple of weeks,” he said. “A lot of people realize if Trump loses the election this could all go away.”
Still, diversity and legal experts say the order is having an effect.
“That fear is out there, and it’s changing behavior even without specific letters or contacts from the Trump administration yet,” said Monique Lin-Luse, senior counsel for the NAACP LDF.
During a town hall last week, Craig Leen, the director of the Office of Federal Contract Compliance Programs, tried to allay concerns of the more than 300 government contractors and trade groups in attendance.
Leen acknowledged the letters, saying that “we understand that there is angst,” and emphasized companies shouldn’t be putting their diversity and inclusion efforts on hold. He clarified that “unconscious bias” training was allowed as long as it’s not directed at a particular group and tried to assuage companies’ concerns about being barred from lucrative federal contracts by saying violators would have the opportunity to fix their training first.
And he pointed participants to recent remarks from Labor Secretary Eugene Scalia saying that the order “does not prohibit workplace training about non-discrimination and equal opportunity.”
“What you heard on the call was reassurance,” said David Cohen, one of the co-founders of the Institute for Workplace Equality, which organized the town hall. “I think the administration didn’t realize the amount of backlash they were going to get from the business community.”
But Leen also suggested that “White privilege” or “White fragility” training for employees of federal contractors would violate the order. (An executive office memorandum to federal department and agency heads from Sept. 28 had suggested “white privilege,” as well as terms such as “systemic racism” or “intersectionality,” could also be red flags for prohibited training.)
“That’s not appropriate in a work environment — to tell employees who are a captive audience, who may disagree with that, who may be White themselves — that they are privileged in that way,” Leen said in the town hall. “That is treating them differently because of their race or sex.”
The Washington Post emailed nearly 30 companies, including federal contractors IBM, AT&T, Google and General Electric, to ask whether any had received inquiries from the Labor Department like those sent to Microsoft and Wells Fargo.
None of those who responded said they had been contacted or offered executives to speak about any changes being made in response to the executive order.
Some former Labor Department officials said they believed the department’s attempt to crack down on certain diversity efforts was a violation of the spirit of the original executive order.
“The Department of Labor’s attempt to undermine the contractual obligations of federal contractors to engage in non-discrimination and proactively examine their personnel data to ensure there’s no discrimination among its employees is an affront to the purpose and history of Executive Order 11246,” said Patricia A. Shiu, director of the OFCCP from 2009-2016, during Obama’s presidency.
The Labor Department declined to disclose whether it had sent similar letters to other companies.
“OFCCP will send letters to other contractors where it determines a similar inquiry is necessary to confirm that discriminatory race or sex-based hiring preferences or quotas are not being used,” the department said in a statement.
White House spokesman Judd Deere said Trump’s executive order was an “important action to ensure that all Americans, regardless of race or sex, are granted equal opportunity to prosper and succeed in the workplace.”
Some private companies are already taking action.
Dawn Siler-Nixon, a partner with the law firm Ford Harrison, said some of her clients have removed phrases such as “White privilege” from their training. She said one client, a manufacturer who is a federal contractor, had canceled a book discussion for employees on “White Fragility” by Robin DiAngelo.
Others said companies were taking a “wait-and-see” approach until after the election.
Lisa Beasley and Brynne Hovde, co-founders of the diversity training firm Nova Collective, said only one client, a federal agency, has canceled, but some of their other human resources contacts have reported an uptick in anonymous feedback from employees who say diversity training is “supporting a liberal agenda.” The order is “fanning the flames,” Hovde said.
Yet for federal contractors, there are still plenty of concerns about the reach and ambiguity of the order.
Craig Albright, vice president for legislative strategy for BSA: The Software Alliance, which represents major software companies, asked Leen during the town hall whether he knew what the following phrase from the executive order’s list of “divisive concepts” means: “members of one race or sex cannot and should not attempt to treat others without respect to race or sex.”
Albright said that while the call was helpful, his organization still has questions. “I think a lot of companies are operating without clarity,” he said. It’s notable “when you see such a broad range of industries all coming out relatively quickly on something. It demonstrates there’s a real significant concern.”