On Thursday, October 29, the NAACP Legal Defense and Educational Fund Inc (LDF) filed a constitutional challenge to Executive Order 13950, labeling it “an extraordinary and unprecedented” federal act that violates first amendment rights and “strikes at the heart” of efforts “to eradicate race and sex stereotyping.”
The proposed class action suit was filed in the U.S. District Court for the District of Columbia on behalf of the National Urban League and the National Fair Housing Alliance, however the class could extend to all federal contractors impacted by the executive order. The Plaintiffs allege that the order unconstitutionally forces them to choose between their first amendment right to free speech and pursuing and federal contract.
The suit seeks an injunction declaring the executive order unlawful and blocking it, as well as costs and fees.
The order, released in September, bars the use of “divisive concepts,” in workplace diversity trainings, including the idea that the U.S. “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.”
The DOL defends the order as necessary, issuing a statement that reads, “The Department of Labor is 100 percent committed to OFCCP’s mission of ensuring equal employment opportunity among federal contractors. Race and sex stereotyping and scapegoating are discriminatory and harmful.”
Others disagree. Current and former labor officials suggested the order dragged the OFCCP into a culture war and was, in the words of former OFCCP head Lawrence Z. Lorber, a “bizarre overreach”.
Joining the Conversation
The NAACP LDF lawsuit is one of many public denouncements of the executive order. After a summer of Black Lives Matter protests, industry leaders have pressure from their employees to walk the walk when it comes to diversity training, and so are reluctant to divest from unconscious bias trainings that they see their employees as specifically requesting.
As of this week, industry leaders from the health and tech sectors, including The Pharmaceutical Research and Manufacturers of America, American Association of Advertising Agencies, HR Policy Association, and the Information Technology Industry Council have publicly denounced the order. Nonprofits and progressive organizations including the American Civil Liberties Union, the National Council of Nonprofits, and The Institute for Workplace Equality have also issued statements condemning the order.
The broad consensus surrounding Executive Order 13950 is unusual to say the least.
Chris Wilkinson, senior counsel with the law firm Perkins Coie and a former associate solicitor for the U.S. Department of Labor, called it unprecedented, saying, “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.”
Craig Albright, vice president for legislative strategy for BSA: The Software Alliance, which represents major software companies, agreed, stating, “When you see such a broad range of industries all coming out relatively quickly on something. It demonstrates there’s a real significant concern.”
The order is due to go into effect in late November. As Election Day approaches, some contractors ask whether the life of the executive order is dependent on the outcomes of the election at hand.
For some, just the possibility of the order being enforced is having a chilling effect.
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 trainings. One of her clients cancelled a discussion of the book “White Fragility” by Robin DiAngelo.
Others are adopting a “wait-and-see” approach until after the election. Howard Ross, a diversity consultant notes that many CEO’s are realizing, “Why throw yourself on a sword and make a big kerfuffle of this if you can put this off for a couple of weeks. A lot of people realize if Trump loses the election this could all go away.”
By Susanna Vogel, Associate Consultant, DCI Consulting Group