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DOL Ceases Enforcement of Executive Order Banning Diversity Training

The DOL, through its Office of Federal Contract Compliance Programs, issued notice advising that it has ceased enforcement efforts relative to Executive Order 13950, and any enforcement or investigation of pending complaints against recipients of federal funding relative to alleged violations of the Order will be held in abeyance. Click here to read the notice.

The Order, issued in September 2020, prohibits the military, federal agencies, and federal contractors from promoting a list of “divisive concepts” in workplace trainings. The Order also directs federal agencies to identify grant programs for which grants may be conditioned upon a recipient’s certification that it will not use federal funds to promote “divisive concepts”. In late December 2020, a federal district court in California issued a nationwide preliminary injunction enjoining the federal government from enforcing provisions of Executive Order 13950.

The case, Santa Cruz Lesbian and Gay Community Center d/b/a The Diversity Center of Santa Cruz, et al v. Donald J. Trump, et al, was brought by a group of non-profit community organizations and consultants serving the LGBTQ community and people living with HIV, who provide advocacy and training to health care providers, local government agencies, local business and their own employees about systemic bias, racism, anti-LGBTQ bias, white privilege, implicit bias, and intersectionality.

In their lawsuit, plaintiffs alleged the Order (1) violated the Free Speech Clause under the First Amendment because it chills protected speech based on content and viewpoint of that speech; and (2) was void for vagueness in violation of the Due Process Clause of the Fifth Amendment because it infringes upon free speech rights “without providing adequate notice of the conduct it purports to prohibit.”

The district court found that there was a likelihood the plaintiffs would prevail on the merits of their claims and issued a nationwide injunction prohibiting enforcement of the Order with respect to its application to federal contracts and federal grants.

As a result, federal contractors and federal grant recipients can return to conducting diversity and inclusion training as they see fit without running afoul of federal law.  Although the injunction is limited to certain provisions, President-elect Biden has signaled that he will rescind the Order.