The much-maligned Executive Order (E.O.) 13950, “Combatting Race and Sex Stereotyping,” was rescinded by the new Biden Administration on January 20, 2021. Federal agencies, particularly the OFCCP, are ordered to review and identify proposed and existing actions related to or arising from E.O. 13950 and, within 60 days, “consider suspending, revising, or rescinding any such actions,” including any action to terminate or restrict contracts or grants based on the now defunct order.
The recission of E.O. 13950 was included in a larger order titled “Executive Order On Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (the new order has not yet been assigned a number). The new order announces that federal policy is now to “pursue a comprehensive approach to advancing equity for all.”
The new order tasks the Director of the Office of Management and Budget (OMB) to coordinate with the heads of other federal agencies to assess the extent to which policies and actions either create or exacerbate barriers to full and equal participation by all eligible individuals and report back with best practices and recommended actions.
Status of E.O. 13950 Enforcement
Although the new E.O. gives federal agencies at least 60 days to “wind down” enforcement actions pertaining to E.O. 13950, that order has already been enjoined nationwide by the federal District Court of Northern California, and the OFCCP has already suspended enforcement of the order, including investigations of complaints received through the agency’s tip hotline. So there is likely little for the OFCCP to do besides remove references to the order from the agency’s website. As of this writing, the agency’s E.O. 13950 landing page is still up.
But the agency should not be requesting training materials for review under E.O. 13950 in audits or in response to complaints. That does not mean the agency can/would not request such materials for review under their existing authority under E.O. 11246, the Rehabilitation Act, or VEVRAA. However, those authorities do not contain specific prohibitions on particular training topics like E.O. 13950 did. The disability and veteran regulations contain some guidance regarding general topics that must be covered (the company’s overall disability and veteran EEO/AA requirements), and E.O. 11246 does not contain a training requirement at all. So as long as the training materials do not misstate the law or otherwise give rise to a claim of discrimination under a Title VII framework, the OFCCP has little authority to criticize the training content.
Contractors are no longer required to insert language in federal subcontracts pertaining to E.O. 13950 or post any notices on company bulletin boards. Any contract language regarding E.O. 13950 in existing contracts is simply void and contractors should remove any notices posted in the workplace. Contractors were also required to provide notices to union representatives regarding E.O. 13950. Those notices were to be provided by the agency contracting officers and, to our knowledge, none have done so. If you have received such a notice and provided it to union representatives, a simple follow-up informing them of the order’s recission might be a good idea.
As always, if you have questions regarding the recission of E.O. 13950, feel free to contact us at email@example.com.