Diversity and inclusion training efforts by federal construction-sector contractors—in limbo since a Trump administration executive order last fall mandated new content standards and threatened contract loss for noncompliance—now can proceed, with President Joe Biden’s move last week to revoke that directive and a late 2020 federal court ruling that enjoined its enforcement.
Biden included the order, which had applied to federal agencies, contractors and grantees, among other Trump edicts the new president quashed on Jan. 20, describing it as “damaging.”
The Sept. 22 Trump directive, with staggered effective dates through late November, did not ban contractor or grantee diversity policies or training but set ideological content rules—particularly in references to systemic racism and sexism, and unconscious bias—and included the potential for contract or grant suspension or loss for noncompliance.
Trump had said the order would eliminate what he termed “ideology rooted in the pernicious and false belief that America is an irredeemably racist and sexist country.”
Several construction-sector associations had joined a coalition of 150 corporate and nonprofit trade groups led by the U.S. Chamber of Commerce that urged Trump to withdraw the order. They claimed lack of compliance details forced many member firms to suspend "all diversity and inclusion training," which was "contrary" to the order's purpose.
While the Biden reversal restores training immediately for federal agencies, contractors and grantees got a reprieve from restrictions in late December from a federal district court judge's ruling in a challenge that applied to those groups only. Judge Beth Labson Freeman in San Jose, Calif. issued a nationwide injunction against implementing or enforcing the order.
The decision came in a suit by several nonprofit grantees that offer the training. Freeman said the plaintiffs were likely to succeed on the merits of their suit, claiming that the Trump order violated their constitutional right to free speech and due process. She rejected the Trump administration’s argument that training would further race and sex-based stereotyping and scapegoating, and said the order was vague in what it prohibited.
"The court stated that the plaintiffs’ interest in delivering diversity training and advocacy deemed imperative to their mission outweighs the government’s interest in censoring such trainings," says Michelle Johnson, at attorney at Miles & Stockbridge, adding that U.S. Labor Dept. guidance “only exacerbated the ambiguity."
Johnson says the injunction allows federal grantees and contractors to resume diversity training "without the threat of their funding being pulled out from under them.”
The Labor Dept. said last month it would end all investigations or enforcements against contractors and grantees related to order violations and stopped use of a hotline set up last year for alleged order-violation complaints.
Some observers speculate that diversity training could become a benefit in securing federal contracts going forward.
Biden’s order also launches what a White House summary calls a “whole-of-government initiative to address unequal barriers to opportunity in agency policies and programs,” with federal agencies tasked to deliver “action plans” in 200 days.
The order prohibits the federal government from discriminating against workers based on sexual orientation or gender identity, building on a U.S. Supreme Court decision last year to bar LGBTQ bias under the 1964 Civil Rights Act. The president also is set to roll back a ban on transgender people serving in the military.
“Additional actions in the coming weeks will restore and reinvigorate the federal government’s commitment to diversity, equity, inclusion and accessibility,” Biden said.
