Last updated: October 12, 2023
David Heinen, Vice President for Public Policy and Advocacy
A new state law (S.364) that takes effect on December 1, 2023 could affect some training programs offered by North Carolina nonprofits. The law will prohibit any “state employee training program” from promoting 13 specific concepts, most of which are related to race and gender. At first blush, this law could have significant impacts on a variety of equity, diversity, and inclusion training programs offered by nonprofits. However, the Center's analysis suggests that most nonprofits that offer training programs on topics of equity, diversity, and inclusion should be able to continue these programs but may need to consider additional safeguards and modifications to ensure that they are complying with the new law.
Over the past few months, nonprofits have asked the Center a variety of questions to assess whether the law will apply to training programs their organization offers and, if so, what changes they may need to make to be compliant. Here is a synopsis of some of the questions we have been receiving – along with our best attempt at answers. Note: While this blog post addresses the Center's analysis of a state law, nothing in this post should be construed as legal advice.
Does the law limit the types of trainings that nonprofit employees can attend?
No. The law only applies to state entities like state agencies and public schools. Nonprofit organizations are private entities, and the law does not prohibit them from offering workplace training for their own staff on any topics or from paying for their staff, board members, or volunteers to attend training on topics of race.
Does it matter if our nonprofit has a state contract, grant, or appropriation?
No. Receiving state funding does not transform a nonprofit into a state entity.
Does the law limit nonprofits' ability to offer conferences, workshops, webinars, and other trainings that cover topics related to race or gender equity?
Can you be more specific?
Yes. It likely depends on: (a) whether a training offered by a nonprofit is a "state employee training program"; and (b) whether the training promotes one of the 13 specific concepts that are included in the law. If you answered "yes" to both part (a) and part (b) of the previous sentence, then your organization may need to make some modifications to its training program to comply with law.
Let's start with the first part of that last answer: What is a "state employee training program"?
Great question. There is no clear definition of "state employee training program" in North Carolina law. The term isn't used in the North Carolina General Statutes, the NC Office of State Human Resources has not issued regulations using the term, and the Center is unaware of any state court decisions that provide any clarification about the meaning of the term.
With that in mind, nonprofits that offer training programs that are attended by state employees should probably consider both the primary audience for the training programs and the nature of their relationship with a state entity. At one extreme, a nonprofit that contracts with a state agency or a local community college to provide a training on the topic of race equity (or on any other topic) is likely offering a "state employee training program." At the other extreme, a nonprofit that offers a conference or workshop with a primary audience of other nonprofits or members of the community probably is not offering a "state employee training program" if one state employee – or a few state employees – pay to attend the training event and attend in their personal capacity (e.g., because of their board service with another nonprofit) rather than in their role as a state employee. There is quite a bit of gray area between these two extremes. For training programs that fall within this gray area, nonprofits should probably consider:
- Who is the primary audience for the training program;
- How many state employees are likely to participate in the training program;
- Whether all or most employees of a particular state department or office will participate in the training program;
- Whether the state pays for its employees to attend the training program; and
- Whether the state has a formal contractual relationship with the nonprofit.
In the future, it is possible that legislative changes, new regulations, formal or informal state guidance, and/or court rulings may provide further clarity about what types of nonprofit training programs are covered. Without this clarity, nonprofits should consider using their own best judgement – using the criteria listed above and any other considerations that they find reasonable – to assess whether their training programs are covered by this law.
Can you talk about the substance of the law? What are the 13 concepts that cannot be promoted in state employee training programs?
The 13 concepts mentioned in the law are:
- One race or sex is inherently superior to another race or sex.
- An individual, solely by virtue of his or her race or sex, is inherently racist, sexist, or oppressive.
- An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex.
- An individual's moral character is necessarily determined by his or her race or sex.
- An individual, solely 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.
- Any individual, solely by virtue of his or her race or sex, should feel discomfort, guilt, anguish, or any other form of psychological distress.
- A meritocracy is inherently racist or sexist.
- The United States was created by members of a particular race or sex for the purpose of oppressing members of another race or sex.
- The United States government should be violently overthrown.
- Particular character traits, values, moral or ethical codes, privileges, or beliefs should be ascribed to a race or sex or to an individual because of the individual's race or sex.
- The rule of law does not exist, but instead is a series of power relationships and struggles among racial or other groups.
- All Americans are not created equal and are not endowed by their Creator with certain unalienable rights, including life, liberty, and the pursuit of happiness.
- Governments should deny to any person within the government's jurisdiction the equal protection of the law.
Does this mean that any discussion of race equity in training programs is problematic?
No. The 13 concepts are worded with quite specific language so nonprofits can probably assume that they should be read narrowly. The law does not broadly prohibit state employee training programs on topics of race equity or diversity.
Which of these 13 concepts are most likely to be covered in nonprofit training programs on equity, diversity, and inclusion?
In the Center's experience, the concepts #2, #5, #6, and #7 are most closely related to typical content of nonprofit equity, diversity, and inclusion training programs. While nonprofits that offer training programs with state employee participants should be familiar with all 13 of the concepts, they will likely want to focus their attention on whether the content of their training promotes concepts #2, #5, #6, and #7. Here is the wording of those four concepts with some context for how the specific language may or may not overlap with the content of many nonprofit equity, diversity, and inclusion training programs:
- #2: "An individual, solely by virtue of his or her race or sex, is inherently racist, sexist, or oppressive." This concept may appear to address training programs that cover structural racism or systemic racism. However, instead of focusing on ways that societal structures or systems are inherently racist, the concept focuses on "an individual." While the concept would cover training programs that call out individual participants as "inherently racist, sexist, or oppressive," it does not appear to cover training programs that identify societal structures or systems by these terms.
- #5: "An individual, solely 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." Again, this concept may appear to touch on topics of structural racism and systemic racism, or on the need for reparations. However, like concept #2, it focuses on "an individual" rather than on broader society or systems. That means that it does not appear to cover training programs that touch on topics like white supremacy culture; rather, it appears to apply to training programs that label individual participants (or other individuals) as being responsible for past actions of others of the same race or sex.
- #6: "An individual, solely by the virtue of his or her race or sex, should feel discomfort, guilt, anguish, or any other form of psychological distress." It is fairly typical for participants in workshops on inherent bias or privilege to feel a degree of discomfort – and perhaps some guilt, anguish, and other forms of psychological distress – as they consider their own biases and privileges. Likewise, many people are uncomfortable with terms like "white supremacy culture" the first time they hear them. However, the wording of this concept does not appear to preclude training programs that are likely to make some or all participants feel uncomfortable. Rather, it appears to focus on training programs that suggest that individuals should feel discomfort, guilt, or anguish solely because of their race or sex (which is different than having these feelings because of their inherent biases which are derived from many parts of people's identities and upbringings).
- #10: "Particular character traits, values, moral or ethical codes, privileges, or beliefs should be ascribed to a race or sex or to any individual because of the individual's race or sex." This concept includes the word "privilege," which is an important component of many equity, diversity, and inclusion training programs. The wording does not appear to preclude training programs from mentioning white privilege or other forms of privilege. However, it would appear to cover training programs that suggest that people should receive certain privileges because of their race or sex.
That was a long answer! Can you summarize it in two sentences?
The wording of the 13 concepts is very specific. Nonprofits should read the wording of the 13 concepts carefully and interpret this wording narrowly in assessing whether their training programs promote one or more of the concepts.
What happens if a participant at a nonprofit's training ask as question related to one of the 13 concepts covered by the law?
The law provides that: "[n]othing in this section prevents a private contractor who provides training to State employees from responding to questions that are raised by participants in the training and which pertain to the concepts in subsection (c) of this section. However, the private contractor must make it clear that the State government employer does not endorse those concepts."
Can you translate those last two sentences from legalese to English?
Certainly. It's fine to answer questions that might come up that are related to one or more of the 13 concepts, but nonprofits should make sure that presenters or panelists in their training programs are clear that neither the state nor any particular state agency is endorsing any of these concepts. It is probably safest to include this type of clarification at the beginning or end of any training on topics that are even remotely related to the 13 concepts if the training event seems likely to be considered a "state employee training program" (see the questions above for suggestions on how to figure that out).
What are the penalties if a nonprofit offers a training that promotes one or more of the 13 concepts identified in the law?
There are none. The law does not include any legal ramifications for providers of training programs that promote one or more of the 13 concepts. Having said that, nonprofits have legal and ethical responsibilities to comply with federal and state laws, even those without criminal or civil penalties and/or enforcement mechanisms. Furthermore, nonprofits put their reputations at risk any time they do not comply with federal or state laws. If a nonprofit runs a training program that clearly violates this law, it could expect pushback from some attendees and could attract attention on social media, traditional media, or among public officials. This attention could cause the organization's donors, volunteers, and clients – and others in the community – to lose trust in the organization's other programs and services.
What are some steps nonprofits can take to ensure that their training programs are compliant with the law?
Nonprofits that offer training programs to state employees on topics of equity, diversity, and inclusion should consider taking five steps to ensure compliance with the law:
- Review the content outlines for any relevant training program to assess whether any part of the training may be viewed as promoting one of the 13 concepts mentioned in the statute.
- If you determine that some of the content may promote one of the 13 concepts mentioned in the statute, work with your staff or contractors who are developing the content for training programs to make any necessary modifications to ensure that it is within the boundaries of what is permissible under the law.
- Provide training for your trainers to ensure that they are familiar with the 13 concepts and will use their best efforts to avoid violating the law during the course of training workshops.
- Include a clear disclaimer at the beginning and/or end of any relevant training program that neither the state nor any particular state agency endorses the specific content of the training. If you feel that this type of broad disclaimer would devalue your training program, consider some different language that would demonstrate that the state is not endorsing any specific content of the program that may cross the line into promoting one or more of the 13 concepts mentioned in the statute.
- If necessary, consider having an attorney review your training programs and recommend any modifications that can help ensure that your nonprofit is complying with the law.
I have more questions about the law. How can I get answers (or non-answers)?
Let us know what other questions you may have. The Center will do its best to help you work through those questions and will add any appropriate analysis to this blog post.
One final (repeated) disclaimer...
While this blog post addresses the Center's analysis of a state law, nothing in this post should be construed as legal advice.