President Joseph R. Biden Jr.’s flurry of executive actions upon his inauguration into office signals diversity, equity, and inclusion (DE&I) as a significant area of focus for the administration. As of January 26, 2021, President Biden has signed a total of more than 40 executive orders and actions aimed at addressing and reversing some of the most controversial orders of the prior administration, including a number of actions addressing DE&I matters. One of these—Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Executive Order (EO) 13985)—includes the much-anticipated revocation of EO 13950’s ban on diversity training content for federal agencies, contractors, and grant recipients.
President Biden’s other executive actions include:
- Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (EO 13988)
- Ending Discriminatory Bans on Entry to The United States (Proclamation 10141)
- Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies (Memorandum 2021-02074)
- Tribal Consultation and Strengthening Nation-to-Nation Relationships (Memorandum 2021-02075)
- Condemning and Combating Racism, Xenophobia, and Intolerance Against Asian Americans and Pacific Islanders in the United States (Memorandum 2021-02073)
Taken together, these executive actions work toward increasing equity among historically marginalized and underserved groups.
Background: Executive Order 13950
The Trump administration’s September 22, 2020, executive order, “Combating Race and Sex Stereotyping” (EO 13950) prohibited U.S. federal government agencies, contractors, and grant recipients from using certain diversity training content it characterized as “stereotyping,” “scapegoating,” and “divisive.” Even before EO 13950’s revocation, a federal court, in Santa Cruz Lesbian and Gay Community Center d/b/a The Diversity Center of Santa Cruz v. Trump, had already issued a preliminary injunction, which prevented the Office of Federal Contract Compliance Programs (OFCCP) from enforcing it, finding that the order was likely an unconstitutional infringement on freedom of speech.
Clearly, as a December 22, 2020, anonymous letter from U.S. Department of Justice (DOJ) employees illustrates, EO 13950 was very controversial. OFCCP had quickly fulfilled EO 13950’s directive to create and advertise a complaint hotline, through which employees unhappy with their employers’ approach to diversity and inclusion training could easily and quickly make their grievances known to the federal government; a substantial number of such complaints were registered with OFCCP. Now that EO 13950 has been revoked, what actions remain for federal contractors to take related to EO 13950, and what does the newly signed EO 13985 signal about what is next?
Beyond considering reversing certain EO 13950-driven changes, federal contractors have been offered a permanent reprieve from having to factor in EO 13950 as a compliance consideration. EO 13950 itself is no longer a weight on the scale when planning DE&I initiatives; further, OFCCP has announced that it will close all complaints related to EO 13950 and that it will not enforce any contracts containing EO 13950’s flowdown language. Contractors that have now memorialized EO 13950’s language in their contracts do not have an affirmative obligation to remove it, though they may choose to try to do so.
Advancing Racial Equity: Executive Order 13985
President Biden’s EO, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (EO 13985) not only revokes EO 13950 in its entirety, it also institutes proactive measures focused on implementing “an ambitious whole-of-government equity agenda.” After defining “equity” as “the consistent and systematic fair, just, and impartial treatment of all individuals, including individuals who belong to underserved communities that have been denied such treatment,” the order sets forth a comprehensive approach toward advancing the administration’s agenda by requiring the heads of agencies to:
- identify methods to assess agency policies and actions that “exacerbate barriers” to equity regarding “race, ethnicity, religion, income, geography, gender identity, sexual orientation, and disability”;
- conduct equity assessments and “assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities”;
- “[a]llocat[e] [f]ederal [r]esources to [a]dvance [f]airness and [o]pportunity” to individuals of underserved communities; and
- engage with members of underserved communities.
The order lists among underserved communities “Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.” The EO defines “underserved communities” as those “populations sharing a particular characteristic … that have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life.”
The holding of the federal court in Santa Cruz Diversity Center remains good law, albeit using a limited preliminary injunction standard. Given the ubiquity of constitutional challenges to presidential executive orders, it is possible that the Biden administration’s orders will come under scrutiny as well.
This new order revoking EO 13950 contains neither penalty provisions nor obligations for federal contractors. On the contrary, and without obligating federal contractors to take any action, it makes the pronouncement that “[t]he Federal Government should, consistent with applicable law, allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities, as well as individuals from those communities.” This recommendation will require attention from agency heads.
Preventing Gender Identity and Sexual Orientation Discrimination: Executive Order 13988
In EO 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” President Biden sets forth his administration’s policy on ensuring equal treatment under the law, regardless of an individual’s gender identity or sexual orientation, by requiring the head of each agency to:
- “review all existing orders, regulations, guidance documents, policies, programs, or other agency actions” pertaining to any federal or state statute, or regulation that prohibits sex discrimination;
- “consider whether to revise, suspend, or rescind … agency actions” that hinder or contradict the administration’s policies on gender identity and sexual orientation discrimination; and
- consider any additional actions necessary to ensure compliance with the administration’s policies on combating gender identity and sexual orientation discrimination and other overlapping forms of discrimination.
This order was signed the same day the White House unveiled a revamped website that signaled a new approach with LGBTQ+ communities. The website’s contact page now allows people who identify as nonbinary to select the gender-neutral title “Mx.” and includes a drop-down list of personal pronouns, including “they/them,” “other,” and “prefer not to share” along with “she/her” and “he/him.”
Other Presidential Actions
President Biden’s other actions similarly prioritize equity as EO 13985 defines the term. For example:
- In the proclamation ending discriminatory bans on entry, President Biden revoked a collection of executive actions enacted by the Trump administration that prevented certain individuals from entering the United States, specifically individuals from predominantly Muslim countries (known as the “Muslim ban”) and African countries. The proclamation revokes these bans while upholding the “rigorous, individualized vetting system” of visa applications of individuals seeking entry into the United States.
- In the memorandum on discriminatory housing practices addressed to the Secretary of Housing and Urban Development, President Biden calls out historical and systematic discrimination in governmental housing policies. To redress this harm, the memorandum sets forth provisions to examine the effects of various housing regulations and steps to ensure such regulations are in alignment with the Fair Housing Act.
- The memorandum on tribal sovereignty focuses on the federal government’s “commit[ment] to honoring tribal sovereignty,” and “charges all executive departments and agencies with engaging in regular, meaningful, and robust consultation with Tribal officials.”
- President Biden also addresses the xenophobia, xenophobic rhetoric, and increased intolerance Asian American and Pacific Islander (AAPI) individuals face, given the COVID-19 pandemic. The memorandum addressing xenophobia toward Asian Americans provides detailed steps to combat racism and intolerance against AAPI individuals, including the express condemnation of xenophobia against AAPI persons, considerations for the future issuance of “best practices for advancing cultural competency” about AAPI persons, and the exploration of opportunities to increase cultural competency of the AAPI community.
Key Takeaways for Employers on Diversity, Equity, and Inclusion
In view of the new administration’s emphasis on diversity, employer action items may include the following.
From late September of 2020, many federal contractors and subcontractors reviewed and restricted diversity trainings that seemed to be prohibited by EO 13950. Though EO 13950 is revoked without any further action, employers that made changes based on EO 13950 may wish to conduct an internal review to determine whether they need to reverse those changes or make other adjustments. Concepts around privilege, anti-racism, critical race theory, and other formerly banned topics of training are no longer prohibited. Employers may now reinstitute trainings that had been paused and may exert fewer resources into modifying their training content. Further, with the clear revocation of EO 13950, some employers may choose to devote greater resources to expanding training content.
Further Diversity-Related Policies
The recent spate of actions calls for federal agency heads to take further actions, which may, in turn, directly affect employers providing goods and services to such agencies or indirectly as the stage is set for new diversity-related policy norms. Additionally, employers may want to remain vigilant about the potential for ongoing tension in the workplace given the backlash against the administration’s policies.
Embracing “E” for “Equity”
Employers can take cues from the recent presidential actions’ strong emphasis on “equity,” a term that had been gaining traction in recent years as many organizations began to reference their organizational initiatives as “DE&I” rather than merely “D&I.” Whether or not a given employer chooses to adopt a new abbreviation, the recent actions may help give employers ideas for ways to support underserved communities. As a result, employers may be inspired to take actions such as:
- expanding learning and growth opportunities to address newly-emergent DE&I concepts;
- adopting inclusive initiatives related to personal pronoun use;
- reviewing facility restroom layouts and signage to ensure inclusivity;
- reviewing COVID-19–related safety policies with an eye toward screening out noninclusive language and adding statements of inclusion where applicable; and
- preparing and reviewing social media, dress, and workplace respect policies that establish strong anti-racist and anti-hate values.
Ogletree Deakins’ Diversity and Inclusion Practice Group will continue to monitor developments with respect to the Biden administration’s policies and will post updates on the firm’s Diversity and Inclusion blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.