The administration has begun taking actions with regard to workplace diversity trainings and representation goals on the basis of race, but clarifies that unconscious bias training is still permissible.

The White House and the Office of Federal Contract Compliance Programs (OFCCP) in the US Department of Labor have begun to implement Executive Order 13950 regulating the content of workplace diversity trainings to be offered by federal contractors and the federal government. OFCCP just released FAQs about the order and has launched a phone and email hotline for complaints. OFCCP has also sent inquiries to at least two companies that have announced aspirational goals for increasing the representation of Black employees. The inquiries are being made under Executive Order 11246, which prohibits discrimination on several bases, including race.

EXECUTIVE ORDER 13950 ON ‘DIVISIVE’ WORKPLACE DIVERSITY TRAINING

On September 22, 2020, the White House issued an executive order prohibiting “divisive” workplace training by the federal government and by federal contractors and grantees. (Our previous LawFlash describes that order.) On September 28, the Director of the Office of Management and Budget (OMB) issued an agency-wide memorandum clarifying how the White House expects executive branch department and agency heads to implement that order. The memorandum includes some information that may be helpful to federal contractors as they analyze the content of their trainings.

OMB recommends that a keyword search of the following terms may help identify the type of training prohibited by the order:

• "critical race theory"
• "white privilege"
• "intersectionality"
• "systemic racism"
• "positionality"
• "racial humility"
• "unconscious bias"

It is important to note that the mere existence of these keywords does not necessarily mean that the training content violates the executive order. These keywords simply provide a glimpse into what may be viewed as indicative of a training that includes the “divisive” concepts prohibited by the order.

On October 7, 2020, OFCCP issued FAQs about the order. The FAQs clarify that the new executive order does not prohibit all unconscious 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 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.

The FAQs confirm that the order’s new requirements will only apply to federal contracts entered into after November 21. However, the FAQs also make clear that OFCCP may investigate claims of sex and race stereotyping now, pursuant to OFCCP’s existing authority under Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin by federal contractors. In terms of how such training might violate the existing nondiscrimination executive order, Section 8 of EO 13950 notes that training with “divisive concepts” might contribute to a “hostile work environment” that may violate Title VII or Executive Order 11246.

Finally, the FAQs highlight OFCCP’s complaint hotline “for reporting race and sex stereotyping and scapegoating.” OFCCP first announced the hotline on September 29, 2020, and will investigate complaints received through the hotline under both EO 11246 and EO 13950. The FAQs emphasize that contractors found in violation of EO 13950 may have their contracts “canceled, terminated, or suspended in whole or in part” and may be declared ineligible for further government contracts.

RECENT ACTIONS UNDER EXECUTIVE ORDER 11246

Executive Order 11246 also requires that federal contractors “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.”

On October 6, 2020, a leading technology company announced in a blog post that it had received a letter from OFCCP with regard to the company’s public commitment to double the number of Black and African American people managers, senior individual contributors, and senior leaders in its US workforce by 2025. According to the company, OFCCP’s letter suggested that this initiative “appears to imply that employment action may be taken on the basis of race” and asked the company to prove that the actions it was taking to improve opportunities were not illegal race-based decisions. In its blog post, the company listed eight actions it is taking to achieve its goals that do not take race into account in a manner that would violate Executive Order 11246.

Another company confirmed to Bloomberg Law that it had received a similar inquiry from OFCCP. Earlier this year, the company announced a series of goals including a five-year target for doubling the number of Black leaders, who accounted for 6% of senior management at the time.

It is unclear how quickly the inquiries from OFCCP may result in investigations of these companies or other federal contractors that may have received similar letters, and whether OFCCP will agree with the companies that the actions they are taking do not violate Executive Order 11246.

Federal contractors who receive an OFCCP diversity “inquiry” of this kind should consult with counsel experienced in dealing with the agency and diversity matters to determine how best to respond to such a request.

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