Quick Hit:

On November 2, 2020, LGBT advocacy groups filed the second challenge to President Trump’s recent Executive Order on “Combatting Race and Sex Stereotyping” (the “Order”).  Like the first lawsuit, this lawsuit alleges that the Order violates the First and Fifth Amendments by infringing on the Constitution’s guarantees of Free Speech and Due Process.  Additionally, this Complaint alleges that the Order is unconstitutionally vague.

More Detail:

As we previously reported, the first challenge to the Order was filed by the NACCP Legal Defense Fund on behalf of the National Urban League (“NUL”) and the National Fair Housing Alliance (“NFHA”) in the Unites States District Court for the District of Columbia.  This second lawsuit was filed in the United States District Court for the Northern District of California by Lambda Legal on behalf of various LGBT groups.  Named defendants in the lawsuit include President Trump; Secretary of Labor, Eugene Scalia; the United States Department of Labor (“DOL”), the Director of Federal Contract Compliance Programs (“OFCCP”); the Office of Management and Budget (“OMB”); the U.S. Department of Justice (“DOJ”); and Attorney General William Barr, among others.

According to the Complaint, the Order “plainly discriminates against speech on the basis of . . . content and viewpoint . . . and constitutes a clear violation of the First Amendment.”  It requires organizations and individuals relying on federal funding to “choose between funding that is critical to their clients, and the trainings that are necessary to enable [these organizations] to serve [their] clients directly.”  This has the effect of “chilling” speech, which in the case of these organizations in particular, could have a more dire impact—the Plaintiffs note that without proper training on the history of marginalized communities and the role that “implicit bias” can play, their work cannot succeed.

Plaintiffs seek a declaratory judgement that the Order and its implementing agency action are unlawful and unconstitutional, and preliminary and permanent injunctions enjoining implementation and enforcement of the Order.

We anticipate that other lawsuits against the Order will be filed, and we will monitor and report on any newsworthy developments.

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Photo of Abigail Rosenblum Abigail Rosenblum

Abigail Rosenblum is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Abigail earned her J.D. from the University of Pennsylvania Law School, where she also completed a certificate program in business management…

Abigail Rosenblum is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Abigail earned her J.D. from the University of Pennsylvania Law School, where she also completed a certificate program in business management at The Wharton School and served as a Senior Editor of the Journal of International Law. During law school, she interned for the Honorable Eduardo C. Robreno of the Eastern District of Pennsylvania.

Prior to law school, Abigail worked in management at an industrial supply company, doing internal consultant work.

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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.

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