A bipartisan coalition of 100+ organizations and former Cabinet Members are calling on the President-Elect to sign the following draft Executive Order.

(DRAFT PREPARED OUTSIDE OF THE WHITE HOUSE)

ESTABLISHING A PRESIDENTIAL INITIATIVE TO PROMOTE DIVERSITY, EQUITY, AND INCLUSION IN THE FEDERAL WORKFORCE AND PRESIDENTIAL APPOINTMENTS PROCESS

By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to promote the Federal workplace as a model of diversity, equity, and inclusion, it is hereby ordered:

Section 1. Policy.  The United States derives strength and prosperity from the diversity of its people, and the inclusion of its entire population, with equal opportunity for all, in its work to continually form a more perfect union.  We not only advance the fundamental goals of our Nation by promoting diversity, equity, and inclusion, but we enhance the quality of our Federal Government’s representation of the people it serves.  

Therefore, a continued and enhanced commitment to diversity, equity, and inclusion is critical for the Federal Government as an employer.  The Federal Government must, by law and in pursuit of our national ideals, “endeavor to achieve a work force from all segments of society”  (5 U.S.C. 2301(b)(1)).  Employment policies that embrace diversity, equity, and inclusion are instrumental in attaining the goal of a just and effective Federal Government, and moreover, reflect the Federal Government’s responsibility, as the Nation’s largest employer, to lead by example. 

Prior Executive Orders have advanced the Federal Government’s leadership role and obligations to promote diversity, equity, and inclusion in its workforce and appointments.  For example: Executive Order 13985 of January 21, 2021 (Advancing Racial Equity and Support for Underserved Communities through the Federal Government), directed agencies to identify methods to access equity and allocate federal resources to advance opportunity; Executive Order 13583 of August 18, 2011 (Establishing a Coordinated Government-wide Initiative to Promote Diversity and Inclusion in the Federal Workforce), directed departments and agencies to develop and implement strategic plans on diversity and inclusion; Executive Order 13171 of October 12, 2000 (Hispanic Employment in the Federal Government), directed executive departments and agencies to implement programs for recruitment and career development of Hispanic employees, and established a mechanism for identifying best practices for doing so; Executive Order 13518 of November 9, 2009 (Employment of Veterans in the Federal Government), required the establishment of a Veterans Employment Initiative; Executive Order 13548 of July 26, 2010 (Increasing Federal Employment of Individuals with Disabilities), and its related predecessors, Executive Order 13163 of July 26, 2000 (Increasing the Opportunity for Individuals With Disabilities to be Employed in the Federal Government), and Executive Order 13078 of March 13, 1998 (Increasing Employment of Adults With Disabilities), sought to tap the skills of the millions of Americans living with disabilities.  As the successor to these prior orders, the purpose of this Executive Order is to ensure that the Federal Government leads by example as it seeks to increase diversity, foster equity and inclusion, and promote accountability at all levels of employment.

To safeguard the Nation’s foundational value of representative democracy, the Federal Government must commit itself to diversity, equity, and inclusion at all levels of Federal Government employment.  By necessity, this commitment must be woven into the fabric of Federal recruitment, hiring, retention, and promotion.  A diverse Federal workforce will better reflect the people of our Nation and harness the advantages conferred by a diversity of experiences, such as more innovative solutions and more valuable insights into the daily lives of all Americans.  Prioritizing diversity, equity, and inclusion in Federal Government employment will bring us closer to fulfilling the Founders’ constitutional promise of a Nation that is “of the people, by the people, and for the people.”

Wherever possible, the Federal Government must also seek to consolidate compliance efforts established through related or overlapping statutory mandates, directions from Executive Orders, and regulatory requirements.  By this order, I am directing the Executive Office of the President and all executive departments and agencies to develop and implement a comprehensive system of promoting and maintaining diversity throughout all levels of Federal employment.   This system shall build on the strategic plans on diversity and inclusion developed by agencies pursuant to Executive Order 13583. This system should provide for coordination of leadership strategies; the development of best practices and guidelines in vetting, selection, evaluation, and retention; ongoing training and employee resource programs; and the promulgation of policies and procedures that protect Federal employees and candidates for employment from discrimination and harassment.  The approach should include an ongoing effort to unify strategies and implementation across agencies; develop and promote best practices for prioritizing diversity and inclusion as a key component of human resources management; and promote diversity and remove barriers to equal employment opportunity, consistent with Merit System Principles and applicable law.

Sec. 2. Strategic Plan for Increasing Diversity, Equity, and Inclusion in the Administration. In line with the Domestic Policy Council’s equity assessment in federal agencies, as established in Executive Order 13985 Section 5, the Domestic Policy Council shall additionally: 

a. Establish a coordinated Government-wide initiative to promote diversity, equity, and inclusion at all levels of the Federal workforce hiring process, including Presidential appointments

b. Within 30 days of this order:

i. Under the leadership of the Domestic Policy Council, appoint a standing Government-wide Committee on Federal Workforce Diversity, Equity, and Inclusion (the “Government-wide Committee”) to guide the Administration on DEI matters in our government. 

c. The Government-wide Committee shall, within 120 days of this order: 

i. Work with the Executive Office of the President and each department and agency to set goals for increasing the diversity of appointees to Government Policy and Supporting Positions, including but not limited to Executive Schedule, Senior Executive Service, and Schedule C positions, and derive a plan to meet these goals;

ii. Provide a template for strong anti-discrimination, anti-harassment, and anti-retaliation policies that agencies should use in reviewing their existing policies; 

iii. Review 29 CFR section 1614 to determine if changes are necessary to strengthen the procedures for Federal employees to report complaints regarding discrimination, harassment, and other DEI matters without fear of reprisal; 

iv. Identify organizations and other entities to aid in identifying and recruiting qualified, diverse candidates; 

v. Create a roadmap for agencies to use in reviewing their current and proposed recruitment, hiring, and promotion practices for bias;

vi. Establish an “Inclusion Rule” to require that the candidate pool in the final selection round for any open position be at least 50% diverse with respect to race, ethnicity, national origin, tribal citizenship, sex, sexual orientation, gender identity, religion, disability, and veteran status; 

vii. Develop and provide instructions to individuals involved in vetting and selection in the Administration on interviewing skills and position requirements and ways to mitigate bias in the vetting and selection process; and

viii. Establish criteria for performance evaluation that is consistent across agencies and allows all appointees to be judged for their performance using uniform evaluation criteria. 

d.  In instituting the plans made pursuant to subsection (c), the Government-wide Committee will promote the Administration’s DEI efforts on a website managed by the OPP; continue working with organizations and entities to identify and recruit qualified diverse candidates; provide templates of training programs in unconscious bias, racial equity, and anti-harassment to be required during the onboarding process and regularly thereafter for all employees within each agency; offer guidance to agencies on how to support Employee Resource Groups, also known as “affinity groups,”;  foster formal mentorship and sponsorship opportunities for appointees; [and for positions in which pay or incentives may be discretionary, ensure that equal pay is provided for work of equal value.] 

e. The Government-wide Committee shall engage in a continuous process of monitoring and review to facilitate accountability and transparency to the public.  The Government-wide Committee shall: 

i. Require agencies to track and report retention metrics with regard to sex, race, ethnicity, disability, and other categories of underrepresented populations as determined by the Committee.

ii. Require agencies to conduct exit [and stay] interviews and;

iii. Collect DEI data from all agencies and the White House and use it to make forecasts and corrections; enhance transparency by making DEI and pay equity data public and machine readable; reward agency leaders for DEI progress and efforts through periodic evaluations and compensation; and maintain proper personnel records, including records of complaints, and ensure compliance with any applicable law regarding personnel records within the White House and each department and agency.

Sec. 3. Responsibilities of the Executive Office of the President and Executive Departments and Agencies. All agencies, departments, and the Executive Office of the President shall implement the plan prepared pursuant to section 2 of this order, and such other related guidance as issued from time to time by the Director of the OPP.  In addition, the head of each executive department and agency referred to under subsections (1) and (2) of section 901(b) of title 31, United States Code, and the head of each department within the Executive Office of the President shall:

a. Designate a Chief Human Capital Officer to be responsible for improving employment and promotion opportunities within the department or agency in collaboration with the Director of Equal Employment Opportunity and Director of Diversity and Inclusion, if any, and consistent with law and Merit System Principles, including development and implementation of the department- or agency-specific Diversity and Inclusion Strategic Plan;

b. Within 120 days of the issuance of the Government-wide Committee’s plan or its update under section 2(c) of this order, update and submit for review to the Director of OPP and the Director of OPM a department- or agency-specific Diversity and Inclusion Strategic Plan for recruiting, hiring, training, developing, advancing, promoting, and retaining a diverse workforce consistent with applicable law, the Government-wide Plan, Merit System Principles, an agency’s overall strategic plan, its human capital plan prepared pursuant to Part 250 of title 5 of the Code of Federal Regulations, and other applicable workforce planning strategies and initiatives;

c. Implement the department- or agency-specific Diversity and Inclusion Strategic Plan after incorporating it into the department or agency’s human capital plan;

Sec. 4. Employment Discrimination and Enforcement. The Executive Office of the President and all executive agencies and departments shall apply the provisions of all Federal employment discrimination laws to Presidential appointees.  

It shall be an unlawful employment practice under this Order to fail or refuse to hire or to discharge any appointee, to discriminate against any appointee with respect to that individual’s compensation, terms, conditions, or privileges of Federal Government employment, or to harass any appointee, because of such individual’s race, ethnicity, national origin, tribal citizenship, sex, sexual orientation, gender identity, age, religion, disability, or veteran status.  A Federal Government employer that is found to have engaged in an unlawful employment practice shall be ordered to refrain from engaging in such practices, and ordered to provide appropriate affirmative action, equitable relief, back pay, and compensatory and punitive damages.

This Order shall be enforceable to the maximum extent permitted by law.  In particular, each agency, department, and the Executive Office of the President shall establish procedures for investigating and adjudicating claims for discrimination in violation of this Executive Order and all agencies, departments, and the Department of Justice shall take the position that, for political appointees, claims for compensatory damages, including back pay, by persons found to have been discriminated against in violation of this Executive Order are implied contract claims eligible for reimbursement under the Tucker Act, 24 Stat. 505, 28 U.S.C. § 1491.

Sec. 5. General Provisions. (a)  Nothing in this order shall be construed to impair or otherwise affect:  

(i)   the authority granted by law to an executive department or agency, or the head thereof; including the authority granted to EEOC by other Executive Orders (including Executive Order 12067), or any agency’s authority to establish an independent Diversity and Inclusion Office

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  Independent agencies are strongly encouraged to comply with the provisions of this order.

(d)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.