OFFICE OF THE ATTORNEY GENERAL

CONNECTICUT

WILLIAM TONG
ATTORNEY GENERAL
October 30, 2020
Via First Class and Electronic Mail
President Donald J. Trump
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500

Re: Executive Order 13950 Combating Race and Sex Stereotyping

Dear Mr. President:

We, the undersigned Attorneys General of Connecticut, California, Colorado, Delaware, Hawaii,
Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon,
Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia, write
to express serious concerns with your Executive Order on Combating Race and Sex Stereotyping, issued
on September 22, 2020 (the “Order”). Promoting diversity, equity and inclusion is a top priority
in state government and for businesses, nonprofit organizations, and academic institutions
across our states. As the preamble to your Executive Order acknowledges, the fair and equal
treatment of individuals, without regard to race, ethnicity or sex, is a fundamental principle of
American law. As chief legal officers in our respective jurisdictions, we regard the elimination of
racial and sex discrimination and other forms of discrimination as an official imperative.

As Attorneys General committed to eradicating racism and other forms of discrimination in our
society, we strongly urge that the Order be withdrawn. Among other concerns, we firmly oppose
language in this Order that could be construed to prohibit implicit bias trainings for federal
contractors and federal grantees. Implicit bias trainings are a vital component of advancing the goals
of diversity, equity and inclusion. Any attempt to deny that all of us have unconscious biases is
contrary to science and common sense. Your invocation of the American Civil Rights Movement as
the basis for banning or curtailing this critical and impactful work is beyond confounding.

A primary goal of diversity training in the workplace is to raise awareness of the value of
collaborating with people of different cultures, races, genders, ethnicities, ages, beliefs, experiences
and ideas. The American economy has greatly benefited from diversity and inclusion training as a
more informed and diverse workforce has increased ingenuity and creativity, produced dramatic
increases in productivity and profits, expanded markets and attracted diverse talent to American
firms.

165 Capitol Avenue

Hartford, Connecticut 06106
An Affirmative Action/Equal Opportunity Employer
President Donald J. Trump
October 30, 2020
Page 2

Science has demonstrated that all people possess implicit biases, a tendency to process
information based on unconscious associations and feelings. Our brains are wired to make
generalizations and associations and take cognitive shortcuts. In this sense, implicit bias is not
always harmful. These cognitive shortcuts help us to process the world and all the data we
gather in various social settings. However, implicit biases are fueled by stereotypes and can
cause judgments which result in disparate outcomes based on race, ethnicity, gender, sexual
orientation, religion, age or social-economic status. These biases have been embedded in our
unconscious through years of exposure to harmful cultural stereotypes and narratives. In
certain settings, like the workplace, implicit biases may impede collaboration and affect
understanding, judgments, actions and decisions on an unconscious level in a way that is
harmful to members of certain groups. In turn, they can perpetuate and justify racist and sexist
policies, practices and behaviors. This is true even where individuals and organizations profess
egalitarian intentions to treat others fairly. To eliminate harmful bias, research suggests that
conscious awareness of one’s own implicit biases is critical.

Implicit bias training—helping individuals understand unconscious or subtle associations and

how to identify them in oneself—is therefore vital in mitigating such biases and their negative
implications. Ending this training would have damaging consequences for our nation. We will
continue to conduct this important training and education on racism, sexism and implicit bias in
the workplace, and we encourage other federal contractors and grantees in our jurisdictions to
do the same.

Accordingly, we urge you to reconsider and withdraw this ill-advised Executive Order. All
constituents, wherever they may be employed, deserve access to a workplace free of unlawful
bias and discrimination. Whether it is intended to ban implicit bias or unconscious bias
trainings or merely has the tragic and foreseeable consequence of reducing this important work,
we firmly oppose the Order’s application in our states.

Should you decline to withdraw the Order, we request that you provide written clarification of
your specific intentions. Our request is advanced on behalf of federal contractors, grantees and
all residents of our jurisdictions who may be impacted by your policies. If and to the extent that
this Order is intended to bind state officials or agencies, we further request that clarification.

A. Implicit Bias and Unconscious Bias Trainings

Rather than support its nominal goal of preventing “race or sex stereotyping” in federal
contracts and grants, the Order has the opposite effect. To begin with, given the extensive body
of law which prohibits discrimination on the basis of race or sex, including provisions in the
U.S. Constitution itself, in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.,
and in Executive Order 11246 of 1965, as amended, it is not entirely clear what this Order is
intended to change or add to the current legal landscape. To the extent the Order seeks to
change the status quo, it does so in problematic ways. For example, the Order defines “race or
sex scapegoating” as:

assigning fault, blame, or bias to a race or sex, or to members of a race or sex

because of their race or sex. It similarly encompasses any claim that,
consciously or unconsciously, and by virtue of his or her race or sex, members
of any race are inherently racist or are inherently inclined to oppress others, or
that members of a sex are inherently sexist or inclined to oppress others.
President Donald J. Trump
October 30, 2020
Page 3

E.O., Sec. 2(c). After the issuance of the Order, the Office of Management and Budget (OMB)
issued a memorandum directing agencies to use search terms such as “critical race theory,”
“intersectionality,” “systemic racism” and “unconscious bias” to identify trainings that may be
prohibited by the Order.1 Then, the United States Department of Labor issued guidance, that
raises even more confusion, as it states that implicit bias training might not be prohibited by the
Order, but could be “to the extent it teaches or implies that an individual, by virtue of his or her
race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or
unconsciously.”2

This seeming attempt to categorize implicit bias training within the definition of “race or sex
scapegoating” is troublesome in that it gravely mischaracterizes the typical manner in which
diversity trainings involving unconscious bias or implicit bias have been presented in a variety of
workplaces for many years, including those for the federal workforce.3 Implicit bias and
unconscious bias trainings are beneficial to all participants regardless of race, sex or other
personal characteristics, as an invaluable tool for advancing diversity, equity and inclusion. To
the extent that the Order is intended to ban discussion and self-examination of an individual’s
implicit and unconscious bias, we vigorously object.

We reject the notion that diversity, equity and inclusion trainings must stop if they ask
participants to consider their own implicit biases and the historical and continued role of racism
and sexism in our society and workplaces. This prohibition would be wrongheaded. Moreover,
the subsequent guidance issued by OMB and the Department of Labor only furthers the
ambiguity in the Order with its broad, sweeping language, including a prohibition against
“implicit bias training [which] teaches or implies that an individual, by virtue of his or her race,
sex, and/or national origin, is racist, sexist, oppressive or biased, whether consciously or
unconsciously.” (Emphasis added.) Inclusion of the word “implies” only worsens the confusion
about which trainings are intended to be banned. The language is so broad and subjective that it
gives no notice of what is actually permissible, potentially allowing federal funds to be withheld
or penalties to be enforced based on subjective and arbitrary judgments. This uncertainty also
has a profound chilling effect on important trainings that improve diversity, equity, inclusion
and opportunity in workplaces across our jurisdictions.

Unless the Order and subsequent guidance are modified to clearly and unequivocally permit the
continued use of implicit bias and unconscious bias trainings, the Order should be withdrawn.

Application to the States

Additionally, the Order prohibits all federal contractors from using workplace trainings that
“inculcate[ ] in [their] employees” the concept that “an individual, by virtue of his or her race or
sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.” E.O., Sec.
4. Further, the Order authorizes federal officials to require certain grant recipients to certify that
they “will not use Federal funds to promote the concepts that . . . an individual, by virtue of his
or her race or sex, is inherently racist, sexist or oppressive, whether consciously or
unconsciously.” E.O., Sec. 5. Again, it is unclear what this Order is intended to change or add
to the extensive body of existing Constitutional and statutory law which has long outlawed

1 See https://www.whitehouse.gov/wp-content/uploads/2020/09/M-20-37.pdf.
2 See https://www.dol.gov/agencies/ofccp/faqs/executive-order-13950.
3 See https://www.justice.gov/opa/pr/department-justice-announces-new-department-wide-implicit-bias- training-
personnel; https://obamawhitehouse.archives.gov/the-press-office/2017/01/12/presidential- memorandum-
promoting-diversity-and-inclusion-our-national.
President Donald J. Trump
October 30, 2020
Page 4

discrimination based on race or sex. For the reasons discussed above, we are very concerned
that these statements appear to be intended to ban implicit bias and unconscious bias trainings
by federal contractors and grantees, including state agencies. The uncertain breadth of the
Order and the lack of clarity in the applicable procedures and standards compel us, again, to
urge you to rescind the Order.

State agencies and officials are frequently recipients of federal contracts and grants. Many state
agencies have long been engaged in implicit bias and unconscious bias trainings as integral and
beneficial components of their diversity, equity and inclusion programs. The Order could
arguably be construed to apply to any federal contracts entered into by states moving forward,
and it does not state whether Section 5 is intended to apply to federal grants to states. Rather, in
Section 5 of the Order, you require that within 60 days of the Order (or by November 23,
2020), agency heads report to the Director of the Office of Management and Budget (OMB) to
which grant programs the requirements of the Order may be applied.

We are deeply concerned about the potential (intended or unintended) to direct or coerce the
substance of our diversity training programs, including without limitation implicit bias and
unconscious bias trainings authorized by state agency recipients of federal contracts and grants
for their employees and contractors. To the extent that you refuse to rescind the Order in its
entirety, we ask that you provide us with copies of all agency reports submitted to OMB
pursuant to Section 5 of the Order and a list of all federal grants that will include a funding
condition prohibiting the trainings to be covered by the Order. Clarification as to how public
access to the reports will be provided and the date when those reports will be publicly available
is needed. Additionally, the Order is unclear and vague about the guidelines or methods that
will be used to identify which grants are selected for submission to OMB pursuant to Section 5
of the Order. We request a clear explanation of why any such grants were selected to include
this new funding condition, and the statutory authority purportedly supporting the imposition
of the new funding condition for each grant.

B. Advancing Racial Justice

Furthermore, the potential chilling effect of this Order on our country’s ongoing racial justice
work is profound, particularly now. Equal justice under law will not be achieved until we
acknowledge and reckon with the racial inequities that persist in our society. The nationwide
movement for racial justice has heightened awareness of not only how we treat each other as
individuals, but also the role systems play in affording, or restraining, the advancement of
particular groups. Our workplaces, public, private and non-profit, are grappling with how to
become more inclusive and equitable. To that end, government should expand and increase its
commitment to trainings centered on understanding and combating racial injustice. Now is the
time for greater communication and support for diversity, equity and inclusion, not less.

We therefore urge you to withdraw the Order.

Sincerely,

WILLIAM TONG
President Donald J. Trump
October 30, 2020
Page 5

Xavier Becerra Maura Healey

California Attorney General Massachusetts Attorney General

Phil Weiser Dana Nessel

Colorado Attorney General Michigan Attorney General

Kathleen Jennings Keith Ellison

Delaware Attorney General Minnesota Attorney General

Clare E. Connors Aaron D. Ford

Hawaii Attorney General Nevada Attorney General

Kwame Raoul Gubir S. Grewal

Illinois Attorney General New Jersey Attorney General

Brian E. Frosh Ellen F. Rosenblum

Maryland Attorney General Oregon Attorney General
President Donald J. Trump
October 30, 2020
Page 6

Josh Shapiro
Pennsylvania Attorney General

Peter F. Neronha
Rhode Island Attorney General

Thomas J. Donovan, Jr.

Vermont Attorney General

Mark R. Herring
Virginia Attorney General

Josh Kaul
Wisconsin Attorney General

Karl A. Racine
District of Columbia Attorney General

cc: Russell Vought, Director of the Office of Management and Budget