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.