Executive Order 13950: Wrong on both Substance and Procedure

If one thing is clear from the past four years, it’s that U.S. federal government operations have been anything but “business as usual.” Recently, several White House Executive Orders have unilaterally shifted major requirements for federal agencies and their contractors. One of the most troubling measures is Executive Order (EO) 13950: Combating Race and Sex Stereotyping, which applies to all federal contractors and grant recipients. Despite its name, this EO has caused great concern among the government contracting community by restricting private businesses’ ability to provide employee training addressing issues of systemic racism or unconscious bias in the workplace.

The EO’s substance is incredibly harmful because it undercuts companies’ efforts to promote a diverse, equitable, and inclusive workforce—a top priority for the technology sector as well as the incoming Biden Administration. To date, civil rights groups have filed a first and second lawsuit challenging the EO as an unconstitutional violation of the First and Fifth Amendments.

Notwithstanding the legal challenges and largescale industry opposition—and contrary to all processes that would typically accompany a change to all federal government contracts and grantsEO 13950’s requirements quietly took effect on Saturday, November 21, 2020. There were no updates to the Federal Acquisition Regulation (FAR). There was no rulemaking process, which meant there was no formal opportunity for the public to voice comments and concerns. Absent consistent, government-wide implementation guidance, federal agencies, including the Department of Defense and NASA, are taking an ad hoc approach to implementing EO 13950 through mass contract modifications known as class deviations. As a result, some contractors have diversity training restrictions in their contracts while others do not.

Meanwhile, the Department of Labor issued a Request for Information about current contractor diversity training programs and has been fielding EO 13950-related complaints via an employee hotline since early October. The EO itself clearly suggests that its requirements are enforceable for all federal contracts issued after November 21. The lack of standard implementation processes has created widespread confusion and compliance concerns for both federal contracting professionals and contractors alike.

The technology industry remains committed to partnering with the federal government to meet its technology needs while working to ensure that American workplaces promote diversity, equity, and inclusion. We urge leaders in the U.S. government to respect the longstanding legal processes and protections that have historically shaped the government/contractor relationship and immediately take steps to rescind this policy before it creates further harm to companies and their employees.

Public Policy Tags: Public Sector