Unknowns, caution surround GovCon in wake of anti-bias training ban

President Trump’s recent executive order banning certain types of racial diversity and inclusion training has put many in the government contracting world in a bind, unsure of what to say or do.

Many companies today tout their diversity and inclusion policies and practices. Many of these pre-date the rise of social justice movements in the wake of the killing of George Floyd by a Minneapolis police officer on May 25. But since that time, many companies taken on a greater importance and higher profile as we’ve reported.

The executive order issued Sept. 22 seems to be a reaction by the Trump administration to those movements because they are often critical of the president and his policies.

For contractors, there seems to be a reluctance to speak directly to the executive order. Statements I’ve received from companies focus on how they pride in their diversity and will continue to foster a culture of where diversity and inclusion are valued.

But with one notable exception, no one is outright saying that the executive order is a bad idea.

Two of the primary GovCon industry groups we follow have largely been silent -- the Professional Services Council and the National Defense Industry Association.

The IT Industry Council by comparison issued a strong statement condemning the executive order as a step backwards. That’s the one exception I mentioned. ITI's membership base is primarily commercial tech companies, of which some have significant government footprints but certainly not all.

I'm told both PSC and NDIA are working on a response, but I can’t see it being as forceful as the ITI statement.

After all, how much can industry or even individual companies push back against the hand that feeds them? Though I can see an argument coming that the executive order creates a regulatory burden for industry as well as meddling too much into the internal practices of a private sector company.

In a letter to members WT obtained, PSC laid out several issues raised in the executive order that potentially impact contractors. Those include requirements that industry continue to comply with Title VII of the 1964 Civil Rights Act that prohibits discrimination based on race, color, religion, sex or national origin.

In other words, you have to comply with the Civil Rights Act but apparently there is some invisible line you’re not supposed to cross.

A second point raised in PSC's letter is how the Labor Department has 30 days from the Sept. 22 executive order to publish a Federal Register notice requiring contractors to provide information on diversity training and workshops they provide, along with copies of the training. That means the requirement will go out on or around Oct. 22.

Many companies offer services such as LinkedIn and Udemy to their employees for all kinds of training. I guess they will have to inventory all of that.

The Labor Department also will be creating a hotline for those who want to lodge complaints about the training with the government. I have some thoughts on the toll-free number they can use, but will keep those to myself for now.

The Office of Management and Budget also is supposed to collect and review all contract spending on diversity and inclusion training that federal employees received during fiscal 2020. Much of that training is provided by contractors of course, which raises the specter of cancelled contracts or contracts that aren’t extended.

The provisions specific to contract clauses will take effect 60 days after the executive order was issued. So apparently an interim rule is supposed to be issued outlining compliance in November, after the election by a few weeks.

PSC said in its letter that it doesn’t expect any agencies to do anything until after the interim rule is issued and they have more guidance from OMB and the Federal Acquisition Regulation Council, as well as the Office of Federal Contract Compliance Programs at the Labor Department.

But with the interim rule coming out after the election, there’s another question -- what if Trump loses and Joe Biden wins?

Obviously, there are a lot of unknowns with this executive order. That likely explains the reticence of many in industry to speak publicly on it one way or another.

If Biden wins, executive orders don’t evaporate overnight so it is likely to stay in effect until Jan. 20. A President Biden would likely start his term with a raft of executive orders to countermand many of the actions President Trump has taken.

I’m not sure where all of this leaves everyone. I tend to agree with ITI in that this executive order is one step backwards. Coming so close to the election, it reads like what many political commentators have called it: red meat for Trump’s base. He has tweeted about it and talked about it at the recent presidential debate.

Of course, I have to admit to my own bias if you can’t tell by now. We’ve tried to take the issue of social justice and systemic racism seriously here at Washington Technology. We’ve had panel discussions, written articles and commentaries and published podcasts.

I don’t know the answers but I believe systemic racism is real. It might make many of us uncomfortable, but that doesn’t mean we shouldn’t try to address the problem. We have a long way to go.

This executive order talks about the value of diversity and inclusion but it is really just paying lip service to those ideals. What it is actually doing is sowing confusion and fear that undermines those goals.

 If the order stands, I can only hope that the contracting community can find a way to negate its impact so they can continue on the path toward a more inclusive and diverse workplace and society.