On September 22, 2020, President Trump signed an executive order prohibiting federal contractors from using diversity training to peddle false theories that America is a racist country and that white men are inherently racist and sexist. As the executive order points out, examples of diversity training gone awry include recent training at the Smithsonian Institute – of all places.  That training claimed “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.'”

Under the executive order, during the performance of a federally funded contract, contractors may not require their employees to participate in workplace training that promotes these ideologies.  Moreover, labor unions with whom government contractors maintain collective bargaining agreements cannot engage in similar training.  The penalties for a contractor ignoring the executive order are severe. A contractor can have its contract terminated and could be disbarred.

Critically, contractors must now include language in their subcontracts that make the executive order binding on subcontractors.   This is particularly important because a subcontract that requires its employees to attend a diversity program that violates the executive order could be in breach of its subcontract and open itself up to a false claims act violation.

The Office of Federal Contract Compliance (OFCCP) has set up a hotline for individuals to call to report violations of the executive order. Employees and contractors that are aware of violations of the executive order are urged to call the hotline.