On October 22, 2020, the U.S. Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) published a Request for Information (RFI) in the Federal Register seeking information about any workplace diversity trainings federal contactors provide to their employees that involve race or sex stereotyping or scapegoating. The RFI asks federal contractors, subcontractors, and their employees to voluntarily provide copies of any trainings, workshops, or similar programming that “promote, or could be reasonably interpreted to promote” race or sex stereotyping or scapegoating, as well as information about the duration, frequency, and expense of such trainings.
The RFI was directed by Executive Order 13950 on Combating Race and Sex Stereotyping, signed by President Trump on September 22, 2020, which prohibits federal contractors from conducting workplace diversity training that promotes “anti-American” race or sex stereotyping or scapegoating. This Executive Order, summarized in WilmerHale's previous Client Alert available here, has been widely criticized by a broad coalition of industry associations for restricting existing diversity, equity, and inclusion training programs and interfering with private company efforts to combat systemic racism. These industry groups have already drafted a letter urging the Trump administration to immediately rescind the Order, and are expected to sue to prevent the Order from taking further effect on November 21, 2020. (If the administration changes after the presidential election, it is widely expected that the Order will be withdrawn in January 2021). In the meantime, however, while the Executive Order remains in effect, the RFI will, according to the OFCCP, help the agency “obtain information to formulate OFCCP programming and compliance assistance” and enable it to “better combat race and sex stereotyping within the contractor community.”
The RFI encourages federal contractors, subcontractors and their employees to provide information or materials concerning workplace trainings that involve prohibited stereotyping or scapegoating, and seeks information about whether there have been complaints about the trainings and/or whether employees have been disciplined for complaining about the trainings. The OFCCP will permit anonymous submissions in response to the RFI. The RFI also reminds the public about the e-mail and telephone hotline the OFCCP has created to report potentially non-compliant workplace training materials, and encourages members of the public to report “potentially unlawful training materials.”
In addition, the RFI provides federal contractors and subcontractors with an opportunity to voluntarily submit information about their workplace trainings to the OFCCP to seek compliance assistance. For those contractors and subcontractors that voluntarily submit such information through an owner, executive, or legal representative with actual authority to bind the entity, the OFCCP has pledged to exercise its enforcement discretion and not take enforcement action if the submitted materials are found to violate Executive Order 13950 or Executive Order 11246 (prohibiting federal contractors from discriminating against employees on the basis of race, sex, and certain other protected classifications), so long as the entity thereafter promptly comes into compliance with the Executive Orders. This safe harbor applies even if an employee has submitted the same or substantially similar materials to the OFFCP or filed a complaint based on such materials.
Federal contractors or subcontractors that wish to submit training materials to the OFCCP for compliance review and receive corresponding enforcement forbearance are instructed to do so on or before December 1, 2020. Contractors and subcontractors may submit materials or comments to the OFCCP through the Federal eRulemaking portal at www.regulations.gov or via mail.
Finally, the RFI provides some helpful direction for contractors and subcontractors assessing what types of unconscious or implicit bias training might be found impermissible under Executive Order 13950:
Please note that training is not prohibited if it is designed to inform workers, or foster discussion, about pre-conceptions, 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 clarification appears to create space for permissible trainings about unconscious bias under Executive Order 13950, provided that they discuss the unconscious biases that all people may have regarding anyone who is different from them, as opposed to programs that assert that members of specific groups are prone to exhibit certain biases.
The WilmerHale employment, anti-discrimination, and government contracting teams will continue to monitor developments about Executive Order 13950 and any legal challenges that may be brought. WilmerHale attorneys also remain available to assist federal contractors and subcontractors in evaluating their current diversity training programs and determining whether they want to voluntarily submit their training materials to the OFCCP for compliance review.
Originally published by WilmerHale, October 2020
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