Privilege at Work: The New Executive Order on Discrimination

The Trump Administration very recently issued an Executive Order (E.O.) protecting toxic workplace behavior. It’s not a surprise that a White House that has embodied misogyny, xenophobia and white nationalism would come up with such a directive. This E.O. is not just bad for the integrity of our federal government, it’s bad for all Americans. But it doesn’t seem to be written to stand the test of time and is unlikely to survive legal challenges. So why issue it now? I believe it is intended as a clear signal to public servants, on the eve of a tense election, that there will be retaliation if they bring forward any evidence of abusive behavior at the hands of political appointees. In short, it’s a gag order.

Let’s examine the relevant text, the first extraordinary sentence: “Many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual.” The subtext here, spelled out again later in the text, is a rejection of decades of activism highlighting systematic social exclusion, in particular on the basis of race and gender. Supplementing this, OMB Director Russell Voight sent a separate memo on September 28, 2020 to all Heads of Agency explicitly calling on them to search and remove all of the following terms from any training: “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.”

The E.O. itself includes a transparent bit of backlash (or to borrow Van Jones’ term, whitelash): “Instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country.” Later, the document explicitly prohibits any training that might imply “an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (or) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.” The real history of the United States of America and implications of that history on the civil servants who are in a position to make policy decisions based on that history should not be a surprise nor an offense to those that take an oath to serve for the public good. But as the very theories this action seeks to bury highlight: people in powerful positions will act to protect their privilege.

Who might have taken offense, and why? The key might be a recent letter from Senator Josh Hawley of Missouri regarding diversity, equity and inclusion (DEI) trainings at the Department of Energy. Senators don’t bother to complain about federal workplace trainings just because they lack other business. It’s likely Hawley’s staff heard from someone significant at DOE, and quite possibly someone who had, himself, been accused of discrimination, harassment or toxic workplace behavior, and who therefore felt particularly concerned or threatened by this training. Because let’s face it, it’s hard as heck to get office buy-in and resources to hold a diversity training. Sadly, it rarely happens at all in any organization unless leadership thinks they have a real problem within the workplace, and a risk of liability that they are seeking to address. So, it’s a safe bet that there were significant cases of harassment and discrimination at Sandia Labs. I can’t speculate on who was involved or who might have contacted Senator Hawley. However I can confirm that there is a widespread problem with harassment and toxic behavior, perpetrated by political appointees, in other federal agencies.

Is the problem widespread enough to have triggered a government-wide E.O.? If reports from my own prior Agency are any indication, offices are now handling record numbers of discrimination cases, and the E.O. has a further ‘tell’ to suggest this is the case: it goes out of its way to define “senior political appointee” and to put the appointees in charge of compliance, a rarity in any executive order. This is a dangerous precedent, and not just with respect to discrimination policy. Anti-discrimination policy was written to enable those with less power to be able to bring cases against those who might be abusing their authority. This E.O. flips that equation. If allowed to stand, it could become a precedent to undermine whistleblower and other workplace protections.

Creating inclusive workplaces starts at the top; so too, unfortunately, does creating discriminatory workplaces. With a President at the helm who has been credibly accused of multiple cases of sexual harassment, who has used derogatory racial and ethnic slurs against Congresspeople, and who has given aid and comfort to violent white nationalists, a decision was made to enact a sweeping order that would effectively protect toxic behavior and give harassers the opportunity to file their own grievances should they be accused of creating a hostile work environment for others. The certain effect if this were to be implemented would be a widespread chilling effect on minorities and women throughout the federal workforce, a gag order to prevent them from exposing abuses by encouraging retaliation.

Yet the federal government has been making slow, steady progress for years and I believe that can’t be reversed. In 2011, the White House issuedExecutive Order 13583, promoting diversity and inclusion in the federal workforce. This, building on decades of prior actions, made good business sense, as the private sector has known for some time; there is accumulated evidence that diverse workplaces are simply more productive, creative and effective. There is also good evidence that inclusive public policy actually benefits everyone- not just targeted groups. And finally, the federal government, like all levels of government, should reflect the diversity of the United States of America. The American people are increasingly diverse. The government employs an enormous workforce, and needs a vast array of skills and expertise. No employer can afford to leave talent on the table by making itself unattractive to the majority of the working population.

The new E.O. is a tactic which may have a short term chilling effect, and this shouldn’t be taken lightly. It can be used to protect officials at places like the Department of Homeland Security, for example, who may be responsible for deploying violence against innocent Americans. It can be used to indemnify violent behavior among a wide array of government contractors, as they seek to intimidate the broader public. I hope the numerous excellent civil servants who remain in place, and who overwhelmingly support greater workplace diversity, will not be cowed, and will continue to carry out their important missions.

Finally as a DEI specialist, I’d encourage any federal worker or contractor who now thinks he has a license to discriminate and harass to think twice. Top legal minds will doubtless detail all the ways in which the new E.O. runs afoul of now decades-old anti-discrimination law and policy, and why it will not withstand any serious legal challenge. Journalists, well aware of this Administration’s tendency to project its weaknesses through its actions, may find the fire underneath the smoke of this action, and whose abusive behavior it is seeking to indemnify. In the meanwhile I would offer commonsense advice for anyone else who may be threatened by DEI training: it’s time to seek help. America is increasingly diverse and will only become more so. Better learn now how to get along with all the rest of us.

• Bama Athreya worked at the US Agency for International Development from 2013 to 2019. While at USAID she led the development of an agency-wide training on social inclusion in programming, and was part of the Administrator’s Action Alliance on Preventing Sexual Misconduct.