[Federal Register Volume 85, Number 188 (Monday, September 28, 2020)]
[Presidential Documents]
[Pages 60683-60689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21534]
Presidential Documents
Federal Register / Vol. 85 , No. 188 / Monday, September 28, 2020 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 60683]]
Executive Order 13950 of September 22, 2020
Combating Race and Sex Stereotyping
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including the Federal Property and
Administrative Services Act, 40 U.S.C. 101 et seq., and
in order to promote economy and efficiency in Federal
contracting, to promote unity in the Federal workforce,
and to combat offensive and anti-American race and sex
stereotyping and scapegoating, it is hereby ordered as
follows:
Section 1. Purpose. From the battlefield of Gettysburg
to the bus boycott in Montgomery and the Selma-to-
Montgomery marches, heroic Americans have valiantly
risked their lives to ensure that their children would
grow up in a Nation living out its creed, expressed in
the Declaration of Independence: ``We hold these truths
to be self-evident, that all men are created equal.''
It was this belief in the inherent equality of every
individual that inspired the Founding generation to
risk their lives, their fortunes, and their sacred
honor to establish a new Nation, unique among the
countries of the world. President Abraham Lincoln
understood that this belief is ``the electric cord''
that ``links the hearts of patriotic and liberty-
loving'' people, no matter their race or country of
origin. It is the belief that inspired the heroic black
soldiers of the 54th Massachusetts Infantry Regiment to
defend that same Union at great cost in the Civil War.
And it is what inspired Dr. Martin Luther King, Jr., to
dream that his children would one day ``not be judged
by the color of their skin but by the content of their
character.''
Thanks to the courage and sacrifice of our forebears,
America has made significant progress toward
realization of our national creed, particularly in the
57 years since Dr. King shared his dream with the
country.
Today, however, many people are pushing a different
vision of America that is grounded in hierarchies based
on collective social and political identities rather
than in the inherent and equal dignity of every person
as an individual. This ideology is rooted in the
pernicious and false belief that America is an
irredeemably racist and sexist country; that some
people, simply on account of their race or sex, are
oppressors; and that racial and sexual identities are
more important than our common status as human beings
and Americans.
This destructive ideology is grounded in
misrepresentations of our country's history and its
role in the world. Although presented as new and
revolutionary, they resurrect the discredited notions
of the nineteenth century's apologists for slavery who,
like President Lincoln's rival Stephen A. Douglas,
maintained that our government ``was made on the white
basis'' ``by white men, for the benefit of white men.''
Our Founding documents rejected these racialized views
of America, which were soundly defeated on the blood-
stained battlefields of the Civil War. Yet they are now
being repackaged and sold as cutting-edge insights.
They are designed to divide us and to prevent us from
uniting as one people in pursuit of one common destiny
for our great country.
Unfortunately, this malign ideology is now migrating
from the fringes of American society and threatens to
infect core institutions of our country. Instructors
and materials teaching that men and members of certain
races, as well as our most venerable institutions, are
inherently sexist and racist are appearing in workplace
diversity trainings across the country, even in
[[Page 60684]]
components of the Federal Government and among Federal
contractors. For example, the Department of the
Treasury recently held a seminar that promoted
arguments that ``virtually all White people, regardless
of how `woke' they are, contribute to racism,'' and
that instructed small group leaders to encourage
employees to avoid ``narratives'' that Americans should
``be more color-blind'' or ``let people's skills and
personalities be what differentiates them.''
Training materials from Argonne National Laboratories,
a Federal entity, stated that racism ``is interwoven
into every fabric of America'' and described statements
like ``color blindness'' and the ``meritocracy'' as
``actions of bias.''
Materials from Sandia National Laboratories, also a
Federal entity, for non-minority males stated that an
emphasis on ``rationality over emotionality'' was a
characteristic of ``white male[s],'' and asked those
present to ``acknowledge'' their ``privilege'' to each
other.
A Smithsonian Institution museum graphic recently
claimed that concepts like ``[o]bjective, rational
linear thinking,'' ``[h]ard work'' being ``the key to
success,'' the ``nuclear family,'' and belief in a
single god are not values that unite Americans of all
races but are instead ``aspects and assumptions of
whiteness.'' The museum also stated that ``[f]acing
your whiteness is hard and can result in feelings of
guilt, sadness, confusion, defensiveness, or fear.''
All of this is contrary to the fundamental premises
underpinning our Republic: that all individuals are
created equal and should be allowed an equal
opportunity under the law to pursue happiness and
prosper based on individual merit.
Executive departments and agencies (agencies), our
Uniformed Services, Federal contractors, and Federal
grant recipients should, of course, continue to foster
environments devoid of hostility grounded in race, sex,
and other federally protected characteristics. Training
employees to create an inclusive workplace is
appropriate and beneficial. The Federal Government is,
and must always be, committed to the fair and equal
treatment of all individuals before the law.
But training like that discussed above perpetuates
racial stereotypes and division and can use subtle
coercive pressure to ensure conformity of viewpoint.
Such ideas may be fashionable in the academy, but they
have no place in programs and activities supported by
Federal taxpayer dollars. Research also suggests that
blame-focused diversity training reinforces biases and
decreases opportunities for minorities.
Our Federal civil service system is based on merit
principles. These principles, codified at 5 U.S.C.
2301, call for all employees to ``receive fair and
equitable treatment in all aspects of personnel
management without regard to'' race or sex ``and with
proper regard for their . . . constitutional rights.''
Instructing Federal employees that treating individuals
on the basis of individual merit is racist or sexist
directly undermines our Merit System Principles and
impairs the efficiency of the Federal service.
Similarly, our Uniformed Services should not teach our
heroic men and women in uniform the lie that the
country for which they are willing to die is
fundamentally racist. Such teachings could directly
threaten the cohesion and effectiveness of our
Uniformed Services.
Such activities also promote division and inefficiency
when carried out by Federal contractors. The Federal
Government has long prohibited Federal contractors from
engaging in race or sex discrimination and required
contractors to take affirmative action to ensure that
such discrimination does not occur. The participation
of contractors' employees in training that promotes
race or sex stereotyping or scapegoating similarly
undermines efficiency in Federal contracting. Such
requirements promote divisiveness in the workplace and
distract from the pursuit of excellence and
collaborative achievements in public administration.
[[Page 60685]]
Therefore, it shall be the policy of the United States
not to promote race or sex stereotyping or scapegoating
in the Federal workforce or in the Uniformed Services,
and not to allow grant funds to be used for these
purposes. In addition, Federal contractors will not be
permitted to inculcate such views in their employees.
Sec. 2. Definitions. For the purposes of this order,
the phrase:
(a) ``Divisive concepts'' means the concepts that
(1) one race or sex is inherently superior to another
race or sex; (2) the United States is fundamentally
racist or sexist; (3) an individual, by virtue of his
or her race or sex, is inherently racist, sexist, or
oppressive, whether consciously or unconsciously; (4)
an individual should be discriminated against or
receive adverse treatment solely or partly because of
his or her race or sex; (5) members of one race or sex
cannot and should not attempt to treat others without
respect to race or sex; (6) an individual's moral
character is necessarily determined by his or her race
or sex; (7) an individual, by virtue of his or her race
or sex, bears responsibility for actions committed in
the past by other members of the same race or sex; (8)
any individual should feel discomfort, guilt, anguish,
or any other form of psychological distress on account
of his or her race or sex; or (9) meritocracy or traits
such as a hard work ethic are racist or sexist, or were
created by a particular race to oppress another race.
The term ``divisive concepts'' also includes any other
form of race or sex stereotyping or any other form of
race or sex scapegoating.
(b) ``Race or sex stereotyping'' means ascribing
character traits, values, moral and ethical codes,
privileges, status, or beliefs to a race or sex, or to
an individual because of his or her race or sex.
(c) ``Race or sex scapegoating'' means assigning
fault, blame, or bias to a race or sex, or to members
of a race or sex because of their race or sex. It
similarly encompasses any claim that, consciously or
unconsciously, and by virtue of his or her race or sex,
members of any race are inherently racist or are
inherently inclined to oppress others, or that members
of a sex are inherently sexist or inclined to oppress
others.
(d) ``Senior political appointee'' means an
individual appointed by the President, or a non-career
member of the Senior Executive Service (or agency-
equivalent system).
Sec. 3. Requirements for the United States Uniformed
Services. The United States Uniformed Services,
including the United States Armed Forces, shall not
teach, instruct, or train any member of the United
States Uniformed Services, whether serving on active
duty, serving on reserve duty, attending a military
service academy, or attending courses conducted by a
military department pursuant to a Reserve Officer Corps
Training program, to believe any of the divisive
concepts set forth in section 2(a) of this order. No
member of the United States Uniformed Services shall
face any penalty or discrimination on account of his or
her refusal to support, believe, endorse, embrace,
confess, act upon, or otherwise assent to these
concepts.
Sec. 4. Requirements for Government Contractors. (a)
Except in contracts exempted in the manner provided by
section 204 of Executive Order 11246 of September 24,
1965 (Equal Employment Opportunity), as amended, all
Government contracting agencies shall include in every
Government contract hereafter entered into the
following provisions:
``During the performance of this contract, the
contractor agrees as follows:
1. The contractor shall not use any workplace training
that inculcates in its employees any form of race or
sex stereotyping or any form of race or sex
scapegoating, including the concepts that (a) one race
or sex is inherently superior to another race or sex;
(b) an individual, by virtue of his or her race or sex,
is inherently racist, sexist, or oppressive, whether
consciously or unconsciously; (c) an individual should
be discriminated against or receive adverse treatment
solely or partly because of his or her race or sex; (d)
members of one race or sex cannot and should not
attempt
[[Page 60686]]
to treat others without respect to race or sex; (e) an
individual's moral character is necessarily determined
by his or her race or sex; (f) an individual, by virtue
of his or her race or sex, bears responsibility for
actions committed in the past by other members of the
same race or sex; (g) any individual should feel
discomfort, guilt, anguish, or any other form of
psychological distress on account of his or her race or
sex; or (h) meritocracy or traits such as a hard work
ethic are racist or sexist, or were created by a
particular race to oppress another race. The term
``race or sex stereotyping'' means ascribing character
traits, values, moral and ethical codes, privileges,
status, or beliefs to a race or sex, or to an
individual because of his or her race or sex, and the
term ``race or sex scapegoating'' means assigning
fault, blame, or bias to a race or sex, or to members
of a race or sex because of their race or sex.
2. The contractor will send to each labor union or
representative of workers with which he has a
collective bargaining agreement or other contract or
understanding, a notice, to be provided by the agency
contracting officer, advising the labor union or
workers' representative of the contractor's commitments
under the Executive Order of September 22, 2020,
entitled Combating Race and Sex Stereotyping, and shall
post copies of the notice in conspicuous places
available to employees and applicants for employment.
3. In the event of the contractor's noncompliance with
the requirements of paragraphs (1), (2), and (4), or
with any rules, regulations, or orders that may be
promulgated in accordance with the Executive Order of
September 22, 2020, this contract may be canceled,
terminated, or suspended in whole or in part and the
contractor may be declared ineligible for further
Government contracts in accordance with procedures
authorized in Executive Order 11246, and such other
sanctions may be imposed and remedies invoked as
provided by any rules, regulations, or orders the
Secretary of Labor has issued or adopted pursuant to
Executive Order 11246, including subpart D of that
order.
4. The contractor will include the provisions of
paragraphs (1) through (4) in every subcontract or
purchase order unless exempted by rules, regulations,
or orders of the Secretary of Labor, so that such
provisions will be binding upon each subcontractor or
vendor. The contractor will take such action with
respect to any subcontract or purchase order as may be
directed by the Secretary of Labor as a means of
enforcing such provisions including sanctions for
noncompliance: Provided, however, that in the event the
contractor becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result
of such direction, the contractor may request the
United States to enter into such litigation to protect
the interests of the United States.''
(b) The Department of Labor is directed, through
the Office of Federal Contract Compliance Programs
(OFCCP), to establish a hotline and investigate
complaints received under both this order as well as
Executive Order 11246 alleging that a Federal
contractor is utilizing such training programs in
violation of the contractor's obligations under those
orders. The Department shall take appropriate
enforcement action and provide remedial relief, as
appropriate.
(c) Within 30 days of the date of this order, the
Director of OFCCP shall publish in the Federal Register
a request for information seeking information from
Federal contractors, Federal subcontractors, and
employees of Federal contractors and subcontractors
regarding the training, workshops, or similar
programming provided to employees. The request for
information should request copies of any training,
workshop, or similar programing having to do with
diversity and inclusion as well as information about
the duration, frequency, and expense of such
activities.
Sec. 5. Requirements for Federal Grants. The heads of
all agencies shall review their respective grant
programs and identify programs for which the agency
may, as a condition of receiving such a grant, require
the recipient to certify that it will not use Federal
funds to promote the concepts that
[[Page 60687]]
(a) one race or sex is inherently superior to another
race or sex; (b) an individual, by virtue of his or her
race or sex, is inherently racist, sexist, or
oppressive, whether consciously or unconsciously; (c)
an individual should be discriminated against or
receive adverse treatment solely or partly because of
his or her race or sex; (d) members of one race or sex
cannot and should not attempt to treat others without
respect to race or sex; (e) an individual's moral
character is necessarily determined by his or her race
or sex; (f) an individual, by virtue of his or her race
or sex, bears responsibility for actions committed in
the past by other members of the same race or sex; (g)
any individual should feel discomfort, guilt, anguish,
or any other form of psychological distress on account
of his or her race or sex; or (h) meritocracy or traits
such as a hard work ethic are racist or sexist, or were
created by a particular race to oppress another race.
Within 60 days of the date of this order, the heads of
agencies shall each submit a report to the Director of
the Office of Management and Budget (OMB) that lists
all grant programs so identified.
Sec. 6. Requirements for Agencies. (a) The fair and
equal treatment of individuals is an inviolable
principle that must be maintained in the Federal
workplace. Agencies should continue all training that
will foster a workplace that is respectful of all
employees. Accordingly:
(i) The head of each agency shall use his or her authority under 5 U.S.C.
301, 302, and 4103 to ensure that the agency, agency employees while on
duty status, and any contractors hired by the agency to provide training,
workshops, forums, or similar programming (for purposes of this section,
``training'') to agency employees do not teach, advocate, act upon, or
promote in any training to agency employees any of the divisive concepts
listed in section 2(a) of this order. Agencies may consult with the Office
of Personnel Management (OPM), pursuant to 5 U.S.C. 4116, in carrying out
this provision; and
(ii) Agency diversity and inclusion efforts shall, first and foremost,
encourage agency employees not to judge each other by their color, race,
ethnicity, sex, or any other characteristic protected by Federal law.
(b) The Director of OPM shall propose regulations
providing that agency officials with supervisory
authority over a supervisor or an employee with
responsibility for promoting diversity and inclusion,
if such supervisor or employee either authorizes or
approves training that promotes the divisive concepts
set forth in section 2(a) of this order, shall take
appropriate steps to pursue a performance-based adverse
action proceeding against such supervisor or employee
under chapter 43 or 75 of title 5, United States Code.
(c) Each agency head shall:
(i) issue an order incorporating the requirements of this order into agency
operations, including by making compliance with this order a provision in
all agency contracts for diversity training;
(ii) request that the agency inspector general thoroughly review and assess
by the end of the calendar year, and not less than annually thereafter,
agency compliance with the requirements of this order in the form of a
report submitted to OMB; and
(iii) assign at least one senior political appointee responsibility for
ensuring compliance with the requirements of this order.
Sec. 7. OMB and OPM Review of Agency Training. (a)
Consistent with OPM's authority under 5 U.S.C. 4115-
4118, all training programs for agency employees
relating to diversity or inclusion shall, before being
used, be reviewed by OPM for compliance with the
requirements of section 6 of this order.
(b) If a contractor provides a training for agency
employees relating to diversity or inclusion that
teaches, advocates, or promotes the divisive concepts
set forth in section 2(a) of this order, and such
action is in violation of the applicable contract, the
agency that contracted for such training shall evaluate
whether to pursue debarment of that contractor,
consistent with
[[Page 60688]]
applicable law and regulations, and in consultation
with the Interagency Suspension and Debarment
Committee.
(c) Within 90 days of the date of this order, each
agency shall report to OMB all spending in Fiscal Year
2020 on Federal employee training programs relating to
diversity or inclusion, whether conducted internally or
by contractors. Such report shall, in addition to
providing aggregate totals, delineate awards to each
individual contractor.
(d) The Directors of OMB and OPM may jointly issue
guidance and directives pertaining to agency
obligations under, and ensuring compliance with, this
order.
Sec. 8. Title VII Guidance. The Attorney General should
continue to assess the extent to which workplace
training that teaches the divisive concepts set forth
in section 2(a) of this order may contribute to a
hostile work environment and give rise to potential
liability under Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq. If appropriate, the
Attorney General and the Equal Employment Opportunity
Commission shall issue publicly available guidance to
assist employers in better promoting diversity and
inclusive workplaces consistent with Title VII.
Sec. 9. Effective Date. This order is effective
immediately, except that the requirements of section 4
of this order shall apply to contracts entered into 60
days after the date of this order.
Sec. 10. General Provisions. (a) This order does not
prevent agencies, the United States Uniformed Services,
or contractors from promoting racial, cultural, or
ethnic diversity or inclusiveness, provided such
efforts are consistent with the requirements of this
order.
(b) Nothing in this order shall be construed to
prohibit discussing, as part of a larger course of
academic instruction, the divisive concepts listed in
section 2(a) of this order in an objective manner and
without endorsement.
(c) If any provision of this order, or the
application of any provision to any person or
circumstance, is held to be invalid, the remainder of
this order and the application of its provisions to any
other persons or circumstances shall not be affected
thereby.
(d) Nothing in this order shall be construed to
impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the
head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(e) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
[[Page 60689]]
(f) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
(Presidential Sig.)
THE WHITE HOUSE,
September 22, 2020.
[FR Doc. 2020-21534
Filed 9-25-20; 8:45 am]
Billing code 3295-F0-P