On September 22, 2020, President Trump issued Executive Order 13950 (the "Order") Combating Race and Sex Stereotyping affecting all government contractors, those companies that contract with government contractors, and federal grant recipients. When first announced, the Order sent shockwaves through the government contracting community and those proponents calling for more diversity and implicit bias trainings in the wake of several high-profile police brutality incidents affecting individuals of color.
On October 7, 2020, the Department of Labor's ("DOL") Office of Federal Contract Compliance Programs ("OFCCP") issued its guidance to explain the Order, and to provide a set of requirements that the Order imposes on federal contractors. The guidance helps to dispel some of the concerns related to the Order's impact on diversity and implicit bias trainings by government contractors. However, the road ahead is far from clear because both DOL and OFCCP's top representatives have issued contradicting statements about the effect of the Order on a government contractor's ability to provide implicit and unconscious bias trainings.
On October 22, 2020, the OFCCP issued a Request for Information ("RFI") (discussed in more detail below) seeking "comments, information, and materials from the public relating to workplace trainings that involve race or sex stereotyping or scapegoating." The RFI does not require that federal contractors provide training or other materials, but instead "invites" the public to provide information.
The Order sets out the policy of the United States "'not to promote race or sex stereotyping or scapegoating' and prohibits federal contractors from inculcating such views in their employees in workplace diversity and inclusion trainings." The Order criticizes "people" who "are pushing a different vision of America" that is based on an ideology "rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people simply on account of their race or sex are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans." The Order warns that a "malign ideology" that "the country was created by white men for the benefit of white men" has migrated from the fringes of society and has been taken up by workplace diversity training "instructors and materials teaching that men and members of certain races ... are inherently sexist and racist." The Order provides that federal contractors and grant recipients should continue to "foster environments devoid of hostility grounded in race, sex, and other federally protected classes," and recognizes that "[t]training employees to create an inclusive workplace is appropriate and beneficial," but criticizes "blame-focused diversity training [that] reinforces biases and decreases opportunities for minorities." The Order states that "it shall be the policy of the United States not to promote race or sex stereotyping or scapegoating in the Federal workforce or the Uniformed Services, and not to allow grant funds to be used for these purposes." The Order prohibits the teaching of "[d]ivisive concepts," including that:
- One race or sex is inherently superior to another race or sex;
- The United States is fundamentally racist or sexist;
- An individual because of his or her race or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
- An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
- Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
- 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;
- Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
- Meritocracy or traits such as a hard work ethic are racist or sexist.
The OFCCP guidance clarifies that while the Order does not become effective until November 21, 2020, the OFCCP may immediately begin to investigate claims for race or sex stereotyping under Executive Order 11246, which provides anti-discrimination and anti-harassment requirements for contractors and subcontractors.
The guidance defines "race or sex stereotyping" as "ascribing character traits, values, moral and ethical codes, privileges, status or beliefs to an entire race or sex, or to individuals because of their race or sex." "'Race or sex scapegoating' means to assign fault, blame, or bias to a race or sex, or to members of a race or sex, because of their race or sex." This includes claims that people, because of their race or sex, are inherently racist or sexist, or inherently inclined to oppress others. The RFI quoted the Order stating that "[e]xamples of impermissible scapegoating or stereotyping include training materials stating 'that concepts like '[o]bjective, rational linear thinking,' '[h]ard work' being 'the key to success,' the 'nuclear family,' and belief in a single god are not values that unite Americans of all races but are instead 'aspects and assumptions of whiteness.'"
The Order places new requirements for federal contractors that include:
I. Federal contractors may not provide workplace training that teaches their employees any form of race or sex stereotyping or scapegoating. Trainings are prohibited only to the extent that they teach that a person, because of his or her race or sex, is inherently racist or sexist, oppressive, or biased, whether consciously or unconsciously. Trainings are allowed if they "foster discussions about pre-conceptions, opinions, or stereotypes that all people—regardless of their race or sex—may have about people who are different."
II. Federal contracts entered into after November 21, 2020, must include language that the contractor will not provide or use "any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating."
III. Federal contractors, sub-contractors, and grant recipients are invited to respond to an RFI regarding their training, workshops, or similar programming provided to employees to determine if they are in violation of either Executive Order 11246 or 13950. The RFI makes clear that if contractors voluntarily submit training materials, the OFCCP will, consistent with law, exercise its enforcement discretion and not take enforcement action. However, the OFCCP will take action if they obtain materials through employees or others.
The specific materials requested by the RFI include:
1. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping.
2. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex scapegoating.
3. The duration of any workplace training identified in categories 1 or 2.
4. The frequency of any workplace training identified in categories 1 or 2.
5. The expense or costs associated with any workplace training identified in categories 1 or 2.
OFCCP additionally requests input on any or all of the following questions, if applicable:
6. Have there been complaints concerning this workplace training?
7. Have you or other employees been disciplined for complaining or otherwise questioning this workplace training?
8. Who develops your company's diversity training?
9. Is it developed by individuals from your company, or an outside company?
10. Is diversity training mandatory at your company?
11. If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
12. Approximately what portion of your company's annual mandatory training relates to diversity?
13. Approximately what portion of your company's annual optional training relates to diversity?
IV. Federal contractors and sub-contractors must post a notice that will be provided by the contracting agency regarding the contractor's promises and commitments related to race and sex stereotyping and scapegoating. If the contractor is unionized, then the noticed must be provided to the union.
The OFCCP has set up a hotline for reporting race and sex stereotyping and scapegoating complaints. The OFCCP will immediately investigate such complaints "following the agency's standard procedures." Contractors who the OFCCP finds have violated the Order may have their contracts cancelled, terminated, or suspended in whole or in part, or may be declared ineligible to receive future contracts.
While the OFCCP guidance and RFI did provide some assurances that federal contractors could still provide implicit and unconscious bias trainings, federal contractors should move carefully, as statements from the Department of Labor have been mixed about how the OFCCP will address the trainings. Until we receive additional clarification from the DOL, the best practice is for federal contractors to review any new training materials or ask for legal assistance in reviewing materials. Federal contractors should contact their trusted legal advisor to determine whether voluntary compliance with the OFCCP RFI is in their best interest.
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