Court overturns executive order ban on federal contractor diversity training; Biden administration ends ban entirely

Readers will remember that in a recent, previous comment we addressed the Executive Order issued by President Trump related to federal contractor diversity training.  Shortly after that Order was issued to ban certain controversial and invidious topics from being part of these trainings, a federal judge in the Northern District of California issued a nationwide preliminary injunction to stop enforcement by the government of the presidential executive order that had been issued (“Initial Executive Order”). In the time since the court issued its ruling, President Biden, upon taking office, issued a new Executive Order overturning the Initial Executive Order, and further set out requirements for federal contractors in relation to the Initial Executive Order.

Initial Executive Order

In September 2020, President Trump issued an executive order which, among other things, prohibited contractors from using any workplace training that encourages “any form of race or sex stereotyping or race and sex scapegoating” in its employees. The general topics prohibited by the executive order included alleged theories such as systemic racism and unconscious bias, and other topics deemed “anti-American.”

Contractors found to be in violation of the Initial Executive Order were subject to being terminated, suspended, or declared ineligible for additional government contracts. Therefore, a substantial number of contractors erred on the side of caution and postponed or canceled their training and other diversity initiatives.

Injunction of the Initial Executive Order

The Initial Executive Order was met with immediate legal challenges and, on December 22, 2020, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction temporarily banning the enforcement of the provisions relating to training. The Court’s ruling granted preliminary approval of an injunction that blocked key portions of the executive order. The court found that the restrictions imposed in the Initial Executive Order, in conjunction with the vagueness of the restrictions, had chilled the exercise of the free speech rights of the plaintiffs who had brought the lawsuit. The judge also concluded that a nationwide preliminary injunction was necessary to ensure that those challenging the ban would receive “complete and meaningful relief.” The ruling, however, was temporary in nature and further litigation would be required to determine if the ban should be permanently applied or if it should be resurrected in some form.