President Biden Revokes Executive Order 13950

On January 20, 2021, as part of a new Executive Order titled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” President Biden revoked Executive Order 13950, “Combating Race and Sex Stereotyping,” which, among other things, prohibited federal contractors and subcontractors from providing certain workplace diversity training and programs.    This new Executive Order further affirmed that “[e]qual opportunity is the bedrock of American democracy, and our diversity in one of our country’s greatest strengths.”

President Biden’s Executive Order 13985 follows the December 22, 2020, issuance of a nationwide preliminary injunction  by the United States District Court for the Northern District of California  prohibiting OFCCP from implementing, enforcing, or effectuating Section 4 of Executive Order 13950 “in any manner against any recipient of federal funding by way of contract [or] subcontract . . . . ”  After the injunction, OFCCP issued a detailed notice regarding OFCCP’s compliance with this court order.

Further, consistent with Section 10(b) of the January 20, 2021, Executive Order, OFCCP is now taking the following additional actions:

  • OFCCP has rescinded the Frequently Asked Questions regarding Executive Order 13950.  
  • OFCCP will cease operating the phone hotline and email address created to collect complaints related to contractors’ alleged noncompliance with Executive Order 13950. While OFCCP ceased collecting complaints through the hotline and email address following the nationwide preliminary injunction, and provided automated messages on both indicating that it was doing so, it is now taking the additional step of shutting down the phone hotline and email address entirely.
  • OFCCP will administratively close all complaints regarding alleged noncompliance with Executive Order 13950 received through the hotline or any other means. These complaints had previously been held in abeyance pursuant to the nationwide preliminary injunction. To the extent possible, OFCCP will notify complainants and affected employers accordingly.
  • As it has done since the entry of the nationwide preliminary injunction, OFCCP will not enforce any of the provisions required by Section 4(a) of Executive Order 13950 contained in government contracts or subcontracts to the extent those provisions have already been included. Accordingly, OFCCP will not require contractors or subcontractors to:
    • Provide notice of any commitments under Executive Order 13950 or any contract term inserted pursuant to Section 4(a) of Executive Order 13950 to their respective labor unions or employee representatives;
    • Include any provisions in subcontracts or purchase orders to bind their subcontractors and vendors to the terms of Section 4(a) of Executive Order 13950, or take action with regard to any subcontract or purchase order to enforce such provisions.
  • As it has done since the entry of the nationwide preliminary injunction, OFCCP is not reviewing submissions it received in response to the Request for Information that sought information regarding the training, workshops or programming provided to employees of government contractors or subcontractors with regard to compliance or noncompliance with Executive Order 13950, and will not engage in any compliance assistance or enforcement action related to the submissions it received in response to the Request for Information.

 

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