As we reported on September 22, 2020, President Trump issued a new Executive Order on Combating Race and Sex Stereotyping (the "Order") applicable to federal contractors and subcontractors. That order specifically prohibited the promotion of "divisiveness" in the workplace, which includes education or training in or on "divisive concepts."
As we reported then, many employers subject to the order wondered how it may affect their equity, diversity and inclusion training, especially as it relates to discussions around unconscious bias and implicit bias. On Wednesday, October 7, 2020, the Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) (the Agency charged with enforcing the regulations applicable to federal contractors and subcontractors) issued guidance on this very point in the form of Frequently Asked Questions (FAQs).
The applicable FAQ provided the following:
Does Executive Order 13950 prohibit unconscious bias or implicit bias training?
Unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.
Training is not prohibited if it is designed to inform workers, or foster discussion, about preconceptions, opinions, or stereotypes that people—regardless of their race or sex—may have regarding people who are different, which could influence a worker's conduct or speech and be perceived by others as offensive.
This should allow contractors to breathe a little sigh of relief, as most view training on unconscious bias and implicit bias as a best practice for improving workplace equality, diversity and inclusion. Of additional interest to many contractors was that aspect of the Order that requires the OFCCP to collect various data on contractor training programs and information. According to the FAQ, the OFCCP is presently "drafting the Request for Information to meet the October 22, 2020, deadline set by Executive Order 13950. The Request for Information will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950." Stay tuned for an update on the RFI and the timing for responses.
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