Photo of Trina Fairley BarlowPhoto of Peter J. EyrePhoto of Kris D. MeadePhoto of Preston PughPhoto of Rebecca SpringerPhoto of M.Yuan ZhouPhoto of Jillian AmbrosePhoto of Gabrielle Trujillo

The Trump administration continues to pursue enforcement of its Executive Order 13950 (the EO), while lawsuits filed by two civil rights groups’ work their way through federal courts. The EO bans federal contractors from utilizing training that “inculcates in its employees any form of race or sex stereotyping,” which is defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.”

On November 20, 2020, both the National Aeronautics and Space Administration (NASA) and the Department of Defense (DoD) issued class deviations requiring that contracting officers incorporate the EO. Both class deviations require that contracts which will include the clause at Federal Acquisition Regulation (FAR) 52.222-26, Equal Opportunity, also include language implementing the EO. The deviations will apply to DoD solicitations issued on or after November 20, 2020, and NASA solicitations issued on or after November 21, 2020.

At the same time, two pending lawsuits recently filed – one by the NAACP on behalf of the National Urban League and the National Fair Housing Alliance in the United States District Court for the District of Columbia, and one by a group of LGBTQ civil rights organizations in the Northern District of California – present serious challenges to the EO.

No significant action has occurred regarding the NAACP’s suit since it was filed in federal court in Washington, D.C., on October 29. However, Plaintiffs in the litigation filed in the Northern District of California have moved for a preliminary injunction, claiming that the EO violates the First and Fifth Amendments and arguing that the EO has “silenced Plaintiffs’ advocacy” by cutting Plaintiffs off from federal funding through grants and contracts and by preventing them from providing diversity training to recipients of such grants and contracts. The motion for preliminary injunction will be heard by Judge Beth Labson Freeman on December 10, 2020. Briefing on Plaintiffs’ motion is well underway; Defendants’ Opposition was filed on November 25, 2020 and Plaintiffs’ Reply is due December 1. Eight Institutions of Higher Education, including Stanford, Tufts, Brandeis, Boston University, the University of Michigan, and three Ivy League universities, are expected to file amicus briefs in support of Plaintiffs’ motion for preliminary injunction. A proposed brief previews the universities’ argument that the EO is antithetical to First Amendment free speech principals and “risks chilling the activity that is the very lifeblood of American higher education.”

Opposition to the EO has been raised on Capitol Hill as well. On October 16, Rep. Joyce Beatty (D-OH) introduced H.R. 8595, which would nullify EO 13950. As of this writing, H.R. 8595 has 51 co-sponsors and has been introduced in three House committees: Oversight and Reform, Education and Labor, and Armed Services. If the House were to pass the bill, its chances of success in the Republican-controlled Senate are slim; slimmer still are the odds that President Trump would sign the bill into law.

Concern regarding the long-term effects of the EO may be moot as many observers expect that President-elect Biden will rescind the EO relatively early in his term. We will keep clients apprised of further developments on this topic of broad and great concern.

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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 M.Yuan Zhou M.Yuan Zhou

M. Yuan Zhou is a counsel in the Washington, D.C. office of Crowell & Moring, where she is a member of the firm’s Government Contracts Group.

Yuan’s practice includes a wide range of investigatory, counseling, and transactional capabilities, including: internal investigations related to…

M. Yuan Zhou is a counsel in the Washington, D.C. office of Crowell & Moring, where she is a member of the firm’s Government Contracts Group.

Yuan’s practice includes a wide range of investigatory, counseling, and transactional capabilities, including: internal investigations related to the False Claims Act, the Procurement Integrity Act, and other civil and criminal matters; compliance reviews and enhancing contractor compliance programs; representing clients in suspension and debarment proceedings; counseling on data rights issues, challenges, and disputes; mandatory disclosures; and providing government contracts due diligence in transactional matters. As part of the firm’s State and Local Practice, Yuan also counsels clients on state and local procurement issues, ranging from bid protests to contract negotiations with state agencies, and advises prime contractors and subcontractors on a variety of issues including prime/sub contract formation, disputes, and other government contracts issues.

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.