On September 22, President Trump issued an Executive Order on Combating Race and Sex Stereotyping, prohibiting federal contractors, subcontractors, and certain grant recipients from saying certain things in their training programs.  The EO requires contracting agencies to insert certain provisions in federal contracts starting 60 days from September 22.  These provisions will require that training programs not include any “divisive concepts,” such as privilege based on race or sex and the idea that “men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist.”  Specifically, the EO identifies the following as prohibited “divisive concepts”:

(1) one race or sex is inherently superior to another race or sex;

(2) the United States is fundamentally racist or sexist;

(3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

(4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;

(5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex;

(6) an individual’s moral character is necessarily determined by his or her race or sex;

(7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;

(8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or

(9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.

The EO further provides the following definitions:

[]“Race or sex stereotyping” means ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.

[]“Race or sex scapegoating” means assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.  It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

The EO requires contractors to include the same prohibitions in its contracts with subcontractors and to provide notices to labor unions regarding the contractor’s commitments under the EO.

On September 28, the Director of the Office of Management and Budget issued a memorandum concerning the EO, which notes that the following terms could indicate a training contains a “divisive concept”:

• critical race theory
• white privilege
• intersectionality
• systemic
• racism
• positionality
• racial humility
• unconscious bias

Challenges to the EO are expected.  However, if it is implemented, employers who enter into contracts will have to review their training programs (particularly training that mentions or relates to unconscious or implicit bias or systemic racism) to ensure they do not implicate any of the prohibited “divisive concepts.”