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Trump executive order should prompt review of diversity training

President Donald Trump

Companies with federal contracts should closely examine their diversity and anti-discrimination training materials in light of an executive order issued by President Donald Trump on Sept. 22.

Some observers say the executive order, which forbids employee training by the federal government and federal contractors and subcontractors that addresses unconscious racist or sexual bias, will upend many companies’ diversity training.

But others say this type of training is still not widely used.

While the executive order, which applies to federal contracts,  does not take effect until Nov. 21, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced on Sept. 28 a hotline to hear employee complaints.

Violations of the executive order can have severe consequences including the suspension or loss of federal business. But experts expect the order to be withdrawn if President Trump loses his re-election bid.

The executive order states that many people are promoting an ideology “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country” and that that “some people, simply on account of their race or sex” are oppressors.

Examples provided include materials from the Sandia National Laboratories in Albuquerque, New Mexico, that state that an emphasis on “rationality over emotionality” was characteristic of white males, who are being asked to “acknowledge” their “privilege” to each other. A Sandia spokesman referred a request for comment to the Department of Energy, which did not respond.

Chai R. Feldblum, a partner with Morgan Lewis & Bockius LLP in Washington, said that traditional training, “which most companies currently have,” is not implicated by the executive order, although “there has been a resurgence of interest in a different type of training, which is training that focuses more on systemic racism.”

Cara Yates Crotty, a partner with Constangy, Brooks, Smith & Prophete Ltd. in Columbia, South Carolina, said, “My reaction to it is that it’s a solution in search of a problem.

“I think the vast majority of contractors and employers generally do not use the types of training targeted by the executive order. Most training already fundamentally contains many of the (permissible) concepts that are addressed in the order, such as ensuring people be treated the same regardless of sex or race.”

“Depending on the nature of the training, it could have little or no impact or greatly alter what’s acceptable content,” said Laura A. Mitchell, a principal with Jackson Lewis P.C. in Denver.

It is common to have diversity and inclusion programs that seek to uproot conscious or unconscious biases that may impact the ways employees work with one another, said Liza V. Craig, counsel with Reed Smith LLP in Washington.

Valerie J. Hoffman, a partner with Seyfarth Shaw LLP in Los Angeles, said the executive order is a “big surprise” to many employers “who have been working hard to ensure that their employees learn to respect one another and have an appreciation of inclusion and diversity.” The Black Lives Matter movement has increased interest in this training, she said.

Many employers “have been doing unconscious bias training for many years now” as a way to address structural or systemic racism, Ms. Hoffman said.

“The order itself is largely political,” but nonetheless is concerning for federal contractors, said Andrew R. Turnbull, of counsel with Morrison & Foerster LLP in McLean, Virginia. He said a number of his clients are concerned about the order’s impact on their diversity training, “and I think it’s unclear as of right now what types of training would be off the table.”

Mr. Turnbull said many programs include unconscious bias training, with the intent of “helping people understand how to think about biases and diversity issues.” Most discrimination is not due to direct bias but to unconscious stereotypes and biases, he said.

The executive order may face challenges, experts say.

“Because of the broad nature of this executive order, I personally do believe that there are going to be challenges” from individuals and corporations questioning whether it represents an infringement of free speech, Ms. Craig said.

The election may impact the executive order’s implementation.  It is likely to be rescinded if Joe Biden is elected president, while if President Trump is reelected, more explicit regulations may be issued, Ms. Craig said.

In the meantime, companies should examine their current programs to see if they violate the order.

Employers should “review the content of their training just to see if there are concepts or language that are in contravention to the executive order,” Ms. Mitchell said.

Do not eliminate the training altogether, Mr. Turnbull said. “It needs to be ongoing, but to the extent it treads into unconscious bias training, maybe put those elements on hold until you find out exactly what the provisions are going to be,” he said.

Ms. Mitchell said this process will be more difficult for “decentralized organizations where local HR departments are responsible for training.”