January 12, 2021

Dismantling EO 13950 – Nationwide Preliminary Injunction Results in Suspension of Enforcement Measures

3 min

In response to the U.S. District Court for the Northern District of California's December 22, 2020 Order issuing a nationwide preliminary injunction enjoining the enforcement of Executive Order 13950, Combating Race and Sex Stereotyping (EO 13950 or the EO), the Office of Federal Contract Compliance Programs (OFCCP) recently issued a Notice Regarding Executive Order 13950, suspending both the enforcement of, and collection of information under, EO 13950. In that Notice, the OFCCP indicated that it will shut down the hotline, cease investigating allegations of noncompliance, refrain from posting any additional Requests for Information, and suspend enforcement of the contract clauses listed in Section 4(a) of the EO, the last of which we discussed in greater detail here.

Of particular significance, the Notice stated that, "[f]or any such complaints already received, OFCCP will hold them in abeyance and not engage in any further investigation per the court's order. To the extent possible, OFCCP will notify all complainants accordingly." Additionally, it explained that "[i]ndividuals wishing to file complaints of discrimination may do so via the mechanisms OFCCP has established for complaint filing generally under Executive Order 11246." Thus, while EO 13950 is no longer in effect and will not be enforced until further notice, Federal contractors and subcontractors must still ensure full compliance with Executive Order 11246, which we have previously explained contains some antidiscrimination threads in common with EO 13950.

To comply with that same nationwide preliminary injunction, on January 6, 2021, the U.S. Department of Defense issued a new class deviation that "revises and supersedes Class Deviation 2021-O0001, issued on November 20, 2020," rendering "the clause [enforcing EO 13950] as inoperable until further notice." That same day, the National Aeronautics and Space Administration likewise issued a new class deviation to "suspend application of the FAR class deviation PCD 20-09" for that same purpose. The U.S. Department of Homeland Security similarly issued a notice on January 4, 2020, suspending its December 1, 2020 class deviation that implemented EO 13950. Other Federal Agencies are expected to do the same.

For the foreseeable future, Federal contractors, subcontractors, and grant recipients alike no longer need to comply with or worry about the enforcement of EO 13950, especially given President‑elect Joe Biden's very recent announcement that he is appointing Boston Mayor Marty Walsh as the Secretary of Labor. In particular, Mayor Walsh has issued executive orders over the past few years that declare racism an emergency and public health crisis with the goal of "dismantl[ing] [] systemic racism"; acknowledge and improve racial equity through government, as further reported on here; and "create a national model for breaking down system racism across all aspects" of Boston, as reported here. Given that history, it is likely safe to assume that, if confirmed, Mr. Walsh has no intention of advancing policies akin to those in EO 13950.

Given the dismantling of EO 13950, should Federal contractors or subcontractors see any contract or solicitation clauses that include its prohibitions, they should immediately reach out to the relevant contracting officer (or higher-tiered contractor) to have such provisions removed. If faced with any questions or pushback, Federal contractors and subcontractors can reference many of the materials cited herein to support the proposition that EO 13950 has no further effect on, or applicability to, the contract.