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The NAACP Legal Defense and Education Fund, Inc. has filed suit on behalf of the National Urban League and the National Fair Housing Alliance in the United States District Court for the District of Columbia challenging the lawfulness and validity of Executive Order 13950, Combating Race and Sex Stereotyping, issued on September 22, 2020. The EO prohibits the use by federal contractors or subcontractors, and certain federal grantees, of training materials that “inculcate[ ] in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” The Department of Labor has since released its own guidance regarding the EO and a Request for Information seeking materials “concerning workplace trainings involving prohibited race or sex stereotyping or scapegoating” and has set up both email and phone hotlines to receive complaints about training that may violate the EO.

The suit names as defendants President Trump, Eugene Scalia in his capacity as Secretary of Labor, and the Department of Labor itself, and identifies the representative class as federal contractors and federal agencies, departments, or divisions that offer or intend to offer workplace training of the type prohibited by the EO. The suit alleges:

  1. An ultra vires action in violation of the First Amendment in the form of viewpoint discrimination;
  2. A violation of the Fifth Amendment, namely that the EO is void for vagueness; and
  3. A violation of the Equal Protection clause of the Fifth Amendment.

The Complaint seeks a declaratory judgment that the EO is unlawful and invalid, pursuant to 28 U.S.C. § 2201, and a preliminary and permanent injunction to stop implementation or enforcement of any part of the EO, as well as costs and fees.

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Photo of Trina Fairley Barlow Trina Fairley Barlow

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive…

Trina Fairley Barlow is co-chair of the firm’s Labor and Employment Group and a member of the firm’s Government Contracts Group. She devotes a substantial portion of her practice to helping government contractors navigate and comply with the myriad laws, regulations, and Executive Orders which impact employers who are also government contractors. Trina’s experience includes advising federal contractors on the requirements of the Service Contract Act, as well as the Davis Bacon Act, and assisting clients with developing compliance strategies that reduce legal risks. In addition, Trina has defended and advised clients in False Claim Act (FCA) whistleblower retaliation cases and has led large internal investigations that frequently encompass a complex combination of labor and employment, government contracts, and ethics and compliance issues. In connection with such investigations and in other contexts, clients also frequently call upon Trina to assist them with developing compliant policies and internal practices that achieve business objectives while simultaneously reducing potential legal risks and exposure.

Photo of Peter J. Eyre Peter J. Eyre

Peter J. Eyre is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He is also a member of the firm’s Management Board. Peter was named to BTI Consulting Group’s list of “Client Service All-Stars” in 2016, 2017, and 2019 and…

Peter J. Eyre is a partner and co-chair of Crowell & Moring’s Government Contracts Group. He is also a member of the firm’s Management Board. Peter was named to BTI Consulting Group’s list of “Client Service All-Stars” in 2016, 2017, and 2019 and has been named an Acritas Star, Acritas Stars Independently Rated Lawyers (2016, 2017, 2019). He is nationally ranked by Chambers USA in Government Contracts since 2014, and by Super Lawyers since 2017.

Photo of Kris D. Meade Kris D. Meade

Kris D. Meade is co-chair of Crowell & Moring’s Labor & Employment Group. He is also a member of the firm’s Management Board and Executive Committee. He counsels and represents employers in the full range of employment and traditional labor law matters, including…

Kris D. Meade is co-chair of Crowell & Moring’s Labor & Employment Group. He is also a member of the firm’s Management Board and Executive Committee. He counsels and represents employers in the full range of employment and traditional labor law matters, including individual and class action lawsuits filed under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, ERISA, and companion state statutes. Kris represents employers in connection with union organizing campaigns, collective bargaining, labor arbitrations, and unfair labor practice litigation. In 2020, Chambers USA recognized Kris as a leading labor and employment lawyer.

Photo of Preston Pugh Preston Pugh

Preston Pugh helps companies, board committees and large organizations conduct internal investigations and respond to government investigations, often stemming from high stakes whistleblower complaints. He is a partner at Crowell & Moring and co-leads its False Claims Act Practice. For more than 20…

Preston Pugh helps companies, board committees and large organizations conduct internal investigations and respond to government investigations, often stemming from high stakes whistleblower complaints. He is a partner at Crowell & Moring and co-leads its False Claims Act Practice. For more than 20 years, he has helped clients navigate many different types of crises—including commercial and government contract fraud investigations; C-suite corporate ethics concerns; whistleblower retaliation claims; broad-based harassment and discrimination complaints; investigations by Congress; and related litigation. He has been recognized by the Legal 500 for his work in investigations.

Photo of Rebecca Springer Rebecca Springer

Rebecca Springer joined Crowell & Moring in 1999 and currently serves as partner in the Labor & Employment Group. Her practice focuses on labor and employment litigation and counseling, particularly in the area of Office of Federal Contract Compliance Programs (OFCCP) compliance. Rebecca…

Rebecca Springer joined Crowell & Moring in 1999 and currently serves as partner in the Labor & Employment Group. Her practice focuses on labor and employment litigation and counseling, particularly in the area of Office of Federal Contract Compliance Programs (OFCCP) compliance. Rebecca has extensive experience conducting audits of personnel practices, preparing Affirmative Action Plans, and counseling clients on affirmative action issues. She also has experience conducting statistical analyses of compensation and other personnel practices for purposes of class action litigation, OFCCP compliance audits, and employer self-audits, and frequently teams with labor economists to analyze compensation and advise clients on potential risks and proactive measures to address compensation disparities.

Photo of Jillian Ambrose Jillian Ambrose

Jillian Ambrose is a Labor & Employment Group associate in Crowell & Moring’s Washington, D.C. office. Prior to joining the firm, Jillian served as a law clerk to Judge Anthony Epstein and then to Judge Steven M. Wellner, both of the D.C. Superior…

Jillian Ambrose is a Labor & Employment Group associate in Crowell & Moring’s Washington, D.C. office. Prior to joining the firm, Jillian served as a law clerk to Judge Anthony Epstein and then to Judge Steven M. Wellner, both of the D.C. Superior Court. Before law school, Jillian was an analyst in the human capital practice of an international consulting firm, where she provided management consulting services to a portfolio of federal agency clients.

Jillian’s practice focuses on litigation of individual and class actions arising in all areas of labor and employment law. She provides counseling to clients on a variety of employment issues, including non-competition/non-solicitation agreements and contract disputes. She also assists clients with affirmative action compliance, preparing affirmative action plans, analyzing compensation practices, and providing counseling in connection with Office of Federal Contract Compliance Programs audits. Jillian has substantial experience in representing employers in wage & hour litigation and in conducting audits and compliance review of employer wage & hour policies and procedures.