Alert 09.28.20
Executive Order Prohibits Workplace Training Related to Race and Sex Stereotypes
Executive Order 13950 (EO) prohibits federal contractors from including “divisive” concepts related to race and sex stereotypes in workplace trainings.
Alert
10.08.20
On October 7, 2020, OFCCP issued guidance regarding its enforcement of EO 13950. This guidance came in the form of nine Frequently Asked Questions (FAQ) concerning the requirements of this EO. As previously explained, on September 22, 2020, President Trump signed EO 13950, Combating Race and Sex Stereotyping. The EO’s stated goal is to “combat offensive and anti-American race and sex stereotyping and scapegoating.” The EO requires agencies, for contracts awarded on or after November 21, 2020, to include a clause that prohibits a contractor from providing workplace training that “inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” The EO states that it does not prevent “contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent” with the EO.
While the FAQ largely restates information already contained in the EO, it makes two important clarifications. First, OFCCP states that EO 13950 does not prohibit all types of unconscious or implicit bias training. Instead, the guidance explains:
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 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.
Second, while OFCCP explains that the EO requirements will apply to federal contracts and subcontracts entered into after November 21, 2020, it also cautions that:
OFCCP may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246, which requires contractors and subcontractors to treat employees without regard to their race or sex, among other protected bases, and requires contractors to take affirmative action to ensure such discrimination does not occur.
OFCCP has already established a hotline for complaints about workplace trainings, and the DOL guidance includes an email address and telephone number for receipt of such complaints.
As previously indicated, how and whether the EO’s provisions go into effect may depend on subsequent developments, such as litigation and the upcoming election. Government contractors should stay alert to future developments regarding the requirements of this EO.