President Biden Repeals Executive Order 13950 Upon Taking Office

On his first day in office, President Biden issued the “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” overturning President Trump’s “Executive Order on Combating Race and Sex Stereotyping” (EO 13950), which had caused many contractors to postpone or cancel their diversity trainings and initiatives.

For the full alert, visit the Faegre Drinker website.

Federal District Court Issues Nationwide Temporary Ban on Executive Order 13950

Last week, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction banning the enforcement of Sections 4 and 5 of Executive Order 13950, a controversial federal directive purportedly enacted “to combat offensive and anti-American race and sex stereotyping and scapegoating” by prohibiting federal contractors and grantees from inculcating such views in their diversity and inclusion workplace trainings. While the preliminary injunction represents a significant win for the government contracting community, it is not a permanent injunction. It remains to be seen whether the government will appeal the order, or whether the incoming Biden administration will rescind the Executive Order in its entirety.

For the full alert, visit the Faegre Drinker website.

OFCCP Issues Last Directive Under CERT Principles for OFCCP Policies and Practices

When the Office of Federal Contract Compliance Programs (OFCCP) first adopted the Certainty, Efficiency, Recognition and Transparency (CERT) principles, the agency’s aim was simple: Improve governance and help the federal contracting community better understand their obligations. With the December 15 release of the Certainty Directive — the fourth and final directive under the CERT principles — the OFCCP has established a process to ensure clarity, which commits the agency to ongoing review and clarification of its policies and practices.

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OFCCP Issues Final Rule to Clarify the Application of Executive Order 11246’s Religious Exemption

The Office of Federal Contract Compliance Programs (OFCCP) continued its clarity tour last week, publishing a final rule in the Federal Register regarding Executive Order 11246 and its religious exemption. The final rule explains the types of contractors that qualify for religious exemption and elucidates the latitude of such contractors to make employment-related decisions based on religion. The OFCCP maintains that its goal was to acknowledge case law permitting religious organizations to apply religious belief defenses to claims of alleged unlawful employment discrimination, but opponents believe the final rule impermissibly protects the free exercise of religion above protecting the rights of the LGBTQ community.

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Federal Agencies Issue Contract Clauses Implementing ‘Executive Order on Combating Race and Sex Stereotyping’

President Trump issued the “Executive Order on Combating Race and Sex Stereotyping” on September 22, but no federal regulations have subsequently been released on how to implement the Order. In the absence of such regulations, the DOD and NASA recently issued memorandums to provide instructions on the way to implement the Order in solicitations and contracts.

For the full alert, visit the Faegre Drinker website.

DOL Finalizes Rule Requiring Internal Approval of Evidence Prior to Issuing Preliminary Notices of Discriminatory Bias Claims Against Contractors

Contractors have more clarity on the Office of Federal Contract Compliance Programs (OFCCP) investigation into discriminatory bias claims, as a final rule is published outlining consistent parameters and approval protocol for evidence. These new developments should equip contractors with additional information prior to the agency issuing a Notice of Violation, allowing contractors an opportunity to refute any initial determination made by the OFCCP or seek prompt resolution.

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