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Related article: Circa Supports HR Policy Association on Opposition of Executive Order 13950

On Dec. 22, 2020 the United States District Court for the Northern District of California issued a nationwide preliminary injunction prohibiting the Office of Federal Contract Compliance Programs (OFCCP) from implementing, enforcing or effectuating section 4 of Executive Order 13950 (EO 13950), which is a controversial federal directive banning “divisive” workplace diversity training conducted by federal contractors.

According to U.S. District Judge Beth Labson Freeman, San Jose, the executive order’s restrictions on contractors and grants likely violate the U.S. Constitution’s free speech and due process protections.

Once EO 13950 was issued, OFCCP moved forward with numerous enforcement steps, issuing a frequently asked questions document, publishing a Request for Information (RFI) in the federal register, hosting a Stakeholder call on Oct. 20, 2020 to clarify the purpose of EO 13950 and answer questions that had been raised by contractors. In addition, they established a hotline to receive and investigate compliants.

Even as OFCCP began to implement enforcement measures, opponents and contractors challenged the order. Two organizations, the National Urban League, and a center serving the Santa Cruz LGBT community stepped forward filing lawsuits to have the order overturned, alleging the order unconstitutionally forced contractors to choose between their First Amendment rights to free speech and pursuing a federal contract. They also claimed that the Executive Order is so vague that it does not provide notice of what speech is subject to penalty, in violation of the Due Process Clause of the Fifth Amendment.

In the end, the District Court agreed, finding the preliminary injunction was warranted under both First and Fifth Amendment challenges.

In response to the preliminary injunction, which takes effect immediately, The OFCCP released a notice stating it would comply with the injunction in the following ways:

  • Cease using any hotline to collect information regarding contractors’ alleged noncompliance with EO 13950.
  • Cease investigation of any alleged noncompliance with EO 13950.
  • Hold in abeyance the complaints already received and not take any enforcement action as a result of alleged noncompliance.
  • Avoid publishing any additional Requests for Information regarding diversity training provided by contractors to their employees.
  • Refrain from requiring federal contractors and subcontractors to include in subcontracts or purchase orders provisions that would bind their subcontractors and vendors to the terms of Section 4(a) of EO 13950.

The OFCCP moved quickly to shut down the entirety of the EO 13950 program it had been enforcing. In addition, it is likely once the Biden administration is in place this unpopular executive order will be rescinded.

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Author

Cathy Hill
Vice President, Marketing
Circa

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