Immediately upon taking office on January 20, 2021, President Biden took swift action to overturn the controversial “Executive Order on Combating Race and Sex Stereotyping” (EO 13950). Executive Order 13950 was issued on September 22, 2020, and sought “to combat offensive and anti-American race and sex stereotyping and scapegoating.” Executive Order 13950 prohibited federal contractors from inculcating such views in their diversity and inclusion trainings, among other restrictions. Contractors found in violation of EO 13950 were subject to being canceled, 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.
EO 13950 was met with immediate class action 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 sections 4 and 5. President Biden’s “Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (Executive Order on Racial Equity) now soundly revokes the entirety of EO 13950 and further requires the heads of agencies to “review and identify proposed and existing agency actions related to or arising from Executive Order 13950.” Notably, within 60 days of the Executive Order, the head of each agency must consider “suspending, revising, or rescinding any such actions, including all agency actions to terminate or restrict contracts or grants pursuant to Executive Order 13950, as appropriate and consistent with applicable law.”
The Executive Order on Racial Equity also requires an equity assessment to be conducted by federal agencies. For example, section 5 of the Executive Order on Racial Equity requires the head of each agency to provide a report to the Assistant to the President for Domestic Policy (APDP), which includes, but is not limited to, findings regarding potential barriers that underserved communities and individuals may face in taking advantage of agency procurement and contracting opportunities. The report is due within 200 days of the Executive Order.
Section 7 of the Executive Order on Racial Equity also notes that “[g]overnment contracting and procurement opportunities should be available on an equal basis to all eligible providers of goods and services” and requires the head of each agency to produce a plan for addressing “any barriers to full and equal participation” regarding programs, agency procurement and contracting opportunities that are identified in section 5 of the Executive Order on Racial Equity.
Faegre Drinker will continue to monitor developments regarding the Executive Order on Racial Equity.