President's Race and Sex Stereotyping Executive Order Blocked by Judge
Author: David B. Weisenfeld, XpertHR Legal Editor
January 5, 2021
A federal judge in California has issued a nationwide preliminary injunction to block key parts of President Trump's Executive Order on Combating Race and Sex Stereotyping from being enforced. The executive order had limited federal contractors' anti-discrimination and diversity training by banning the use of workplace trainings that include any form of race or sex stereotyping, scapegoating or "divisive concepts."
In granting the injunction, US District Judge Beth Labson Freeman found the executive order to be an impermissible restriction on federal contractors and federal grantees' free speech rights. "The restricted speech, addressing issues of racism and discrimination, goes to matters of public concern" protected by the First Amendment, said Judge Freeman. LGBT advocacy groups had filed suit challenging the executive order.
Requiring federal grantees to certify they will not use grant funds to promote concepts that the government considers "divisive," even where the grant program or training is wholly unrelated to such concepts "unfairly impairs their free speech rights," the judge explained.
Many employers feared the executive order would have a chilling effect on anti-discrimination efforts and training beyond federal contractors by interfering with how they train employees on diversity issues. The Justice Department suspended all diversity and inclusion training for its employees and managers to comply with the executive order.
Microsoft said last fall in a New York Times report following the order that the US Department of Labor had begun investigating the company's commitment to double the number of Black employees in leadership posts by 2025 as possible unlawful discrimination.
Under President Trump's order, 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; and
- Encompasses any claim that, consciously or unconsciously, members of any race are inherently racist or are inherently inclined to oppress others, or members of a sex are inherently sexist or inclined to oppress others.
But in issuing the preliminary injunction, the court found the executive order so vague that it was impossible to determine what conduct it prohibited.
President-elect Biden is widely expected to rescind this executive order within his first 100 days in office.