Since it was issued in September 2020, Executive Order 13950 – Combatting Race and Sex Stereotyping has been a source of controversy and criticism.  Speculation as to the fate of the Executive Order in the future Biden/Harris administration has accelerated in recent weeks with talks of rescission and legal challenges.  While we await the ultimate fate of the Order, a federal district court entered a nationwide preliminary injunction stopping the administration from enforcing Executive Order (EO) 13950. Santa Cruz Lesbian and Gay Cmty. Ctr., et al. v. Trump, No. 5:20-cv-07741-BLF (N.D. Cal. Dec. 23, 2020).

As a reminder, EO 13950 prohibits federal contractors and subcontractors from using “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating,” including a list of “divisive concepts.”  The district court ruled that the EO violates the Free Speech Clause of the First Amendment “because it impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The court also ruled that parts of the EO are so vague that they violate the Fifth Amendment Due Process Clause because

“it is impossible for Plaintiffs to determine what conduct is prohibited.”

The Office of Federal Contract Compliance Programs (OFCCP) has taken action to enforce the EO through the advent of a hotline to accept complaints and also issued a voluntary information collection.  While the court order is preliminary in nature and may be reversed, for now, OFCCP and other federal government agencies may not enforce the EO.

For more information on this development, check out our Article detailing today’s order.

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Photo of Laura A. Mitchell Laura A. Mitchell

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the…

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She is a member of the firm’s Affirmative Action and OFCCP Defense practice group as well as the firm’s Pay Equity Resource Group. She is also on the leadership team for the firm’s Government Contractor Industry Group.

Her practice is focused on representing government and non-government contractors in OFCCP matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming from OFCCP regulations. Ms. Mitchell personally oversees the development of hundreds of AAPs each year and is intimately involved in the defense of numerous OFCCP audits. She also spends significant time counseling companies in connection with conducting pay equity analyses as well as government contractor employment obligations.

Ms. Mitchell is the editor and a principal contributor of The Affirmative Action Law Advisor blog and frequently presents on pay equity, affirmative action compliance, OFCCP enforcement trends, and government contractor obligations.

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