Unconscious Bias Training Update
Federal Court Issues Nationwide Preliminary Injunction on Unconscious Bias Training Content Restrictions Imposed by Trump Administration
On December 22, 2020, US District Judge Beth Labson Freeman issued a preliminary injunction prohibiting enforcement of Executive Order 13950, which imposes restrictions on certain types of unconscious bias training content on government contractors and grantees. The order was effective immediately.
Executive Order 1350 restricts certain types of unconscious bias training content by federal contractors and grantees.
As previously reported, President Trump issued Executive Order 13950 on September 22, 2020. The Executive Order contained detailed provisions designed to prevent federal contractors and grantees and the Uniformed Services from providing diversity or unconscious bias training addressing specific concepts the Trump Administration deemed unacceptable.
The December 22 injunction prevents enforcement of restrictions on unconscious bias training content.
Judge Labson’s December 22 Order Granting in Part Motion for Nationwide Preliminary Injunction prohibits the Trump Administration, including all federal agencies, from enforcing Trump’s Executive Order against a contractor or grantee or taking any additional steps to impose restrictions on contractors or grantees based on the Executive Order.
The Order also requires the Administration to take “appropriate steps” to ensure compliance with the injunction.
Additionally, the Administration must provide notice of the injunction to all contractors, grantees, subcontractors, and sub-grantees for whom such terms have been imposed since the Executive Order was issued.
The order applies to the Administration, all federal agencies, their officers, agents, servants, employees, and attorneys, as well as “any other persons who are in active concert or participation with Defendants or Defendants’ officers, agents, servants, employees, and attorneys.”
Pursuant to the preliminary injunction, the Trump Administration
cannot include contractual provisions prohibiting contractors from using workplace training involving concepts prohibited by the Executive Order or any related agency guidance
cannot enforce any existing contractual provisions prohibiting workplace training involving concepts prohibited by the Executive Order or any related agency guidance
cannot use a hotline to collect information regarding contractors’ compliance or alleged noncompliance with the Executive Order or any related agency action
cannot investigate any alleged noncompliance with the Executive Order (or any related agency action) received through any means
cannot take any enforcement action or provide any remedial relief in response to alleged noncompliance with the Executive Order or related agency action
cannot require contractors to give notice to union or employee representatives of any commitments made pursuant to the Executive Order regarding workplace training content
cannot cancel, terminate, or suspend any contract for failure to comply with the Executive Order or any related agency action
cannot declare an entity ineligible for future contracts or “otherwise sanction” the entity for refusal to comply with the Executive Order or any related agency action
cannot require contractors to bind their subcontractors or vendors to the terms of the Executive Order or any related agency action
cannot require contractors to take any action on any subcontract or purchase order to enforce provisions of the Executive Order or related agency guidance
cannot publish any additional Request for Information regarding whether any training programs provided to contractor or subcontractor employees complies with the Executive Order or any related agency action
cannot require, facilitate, or permit, or require, facilitate or permit any federal agency to include conditions in any grant program that would require recipients to certify that they will not use funds to promote any of the concepts prohibited by the Executive Order or any related agency action
cannot require, facilitate or permit any federal agency to review or identification of grant programs upon which Executive Order-related restrictions could be added
cannot require, facilitate or permit any federal agency to submit reports regarding grant programs on which Executive Order-related restrictions could be imposed
cannot require, facilitate or permit any federal agency review any reports regarding such matters that may have already been produced
cannot enforce any Executive Order-related conditions that may have already been included in a grant or subgrant
cannot take any other action, whether or not listed in the Executive Order, intended to effectuate or enforce the provisions of the Executive Order or any related agency guidance or actions applicable to government contracts and grants
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