On December 22, 2020, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction banning the enforcement of Sections 4 and 5 of Executive Order 13950 (EO 13950), a controversial federal directive intended to prohibit the advancement of “anti-American race and sex stereotyping and scapegoating” during diversity and inclusion workplace trainings.
In response, The Office of Federal Contract Compliance Programs (OFCCP) issued a notice stating their intent to comply with the injunction, functionally halting the enforcement of the entire executive order.
A Timeline of Events
Since the Executive Order was announced, the OFCCP has moved forward with several enforcement steps, including issuing a frequently asked questions document, publishing a Request for Information (RFI) in the Federal Register, hosting a Stakeholder call to review questions and concerns, and, most notably, establishing a hotline to receive and investigate complaints.
As the OFCCP moved forward with enforcement measures, opponents of the executive order moved in tandem to have the order overturned. Contractors and progressive groups alike immediately challenged the order as being overreaching, vague, and in violation of the First Amendment.
On October 29, 2020, the NAACP filed a class action lawsuit on behalf of the National Urban League, the National Fair Housing Alliance and all other federal contractors impacted by the order, alleging the order unconstitutionally forced contractors to choose between their First Amendment rights to free speech and pursuing a federal contract.
On November 2, 2020, a community center serving the LGBT community filed Santa Cruz Lesbian and Gay Cmty. Ctr., et al. v. Trump, N.D. Cal., No. 5:20-cv-07741- the case that would ultimately be the foundation for December 22nd’s injunction. Similar to the NAACP complaint, Plaintiffs alleged Sections 4 and 5 of the executive order violate the First Amendment rights to free speech. They also allege the EO’s vague wording and failure to define what speech is prohibited constituted a violation of the due process clause of the Fifth Amendment.
Ultimately, the District Court agreed, finding the preliminary injunction was warranted under both First and Fifth Amendment challenges.
The OFCCP’s Response and Implication for Contractors
As stated, the OFCCP released a notice stating it would comply with the injunction in the following ways:
- Stop accepting hotline, email, or other complaints related to non-compliance with Executive Order 13950.
- Stop investigating alleged non-compliance with EO 13950.
- Stop publishing further Requests for Information, seeking information or materials regarding diversity training, workshops or programming provided to contractors’ employees.
- Refrain from enforcing EO 13950 to the extent it has already been included in government contracts or subcontracts.
- Not require contractors to provide notice of EO 13950 to labor unions or employee representatives.
- Not require contractors to include Section 4 of EO13950 in subcontracts and purchase orders.
The OFCCP’s Notice confirms the current OFCCP will not be enforcing any aspect of EO 13950. Given past speculation that President-elect Biden will rescind the order entirely, contractors can consider this order dead in the water.
By Susanna Vogel, Associate Consultant at DCI Consulting Group