Federal Contractors And Workplace Diversity Training Update: Department Of Labor Issues Request For Information Under EO 13950

McCarter & English, LLP

McCarter & English, LLP

Last month’s controversial Executive Order, 13950, will require federal contracts awarded after November 22, 2020, to contain a clause by which contractors agree to refrain from inculcating “race or sex stereotyping” or “race or sex scapegoating” (as those terms are defined in the Order) in training to their employees. Suffice it to say, the implications related to workplace diversity training have raised significant issues regarding the scope and content of such training among federal contractors.

Part and parcel to that Executive Order was the direction to the Department of Labor to request information from federal contractors regarding the workplace diversity trainings presently being provided to contractor employees. On October 22, 2020, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a formal Request for Information (RFI) (https://public-inspection.federalregister.gov/2020-23339.pdf), which sheds additional light on the restrictions the Executive Order will ultimately place on workplace diversity training by federal contractors.

Here are some important considerations federal contractors should know about the RFI:

  1. The RFI Is Voluntary. There had been some concern that the RFI would require, or attempt to require, all federal contractors to compile and submit reports of all workplace diversity training for some period of time. The OFCCP, however, notes specifically that “there are no adverse legal consequences for choosing not to participate in this request for information. This request for information is strictly voluntary.” Federal contractors, therefore, need not respond at all to the RFI.
  2. The RFI Is Limited. The RFI does not seek information related to ALL workplace diversity training by federal contractors, but only requests comments, information, and materials relating to workplace trainings “that involve race and sex stereotyping or scapegoating.” The OFCCP has made clear in this order that it does not want general information related to training that would not violate EO 13950.
  3. The Restrictions of the EO Are Limited. The constraints that may be imposed when and if EO 13950 takes effect are likely less restrictive than some early commentary portrayed them to be. The RFI noted specifically 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 is consistent with the language in EO 13950, which does not prevent contractors from “promoting racial, cultural, or ethnic diversity or inclusiveness.”
  4. The RFI Reinforces the EO’s Attempt to Police Federal Contractors by Soliciting Information from Contractor Employees and “Other Stakeholders.” It provides hotline contact information (a telephone number and an email address) that can be used to make confidential reports of potential “unlawful use of racist or sexist training materials.” It provides for easy submission of materials through the use of an online portal. It welcomes the submission of “photographs,” “videos,” and “handwritten notes.” It allows for the anonymous submission of materials while noting that persons submitting information should be mindful of prohibitions on disclosure of information that are prohibited by law (such as individual medical information, trade secrets, or copyrighted materials) or by a “valid confidentiality agreement.” It encourages employees to report if they have been disciplined for complaining about workplace training that violates the standards stated in the EO.
  5. There Are Some Potential Benefits to Responding to the RFI. Because the RFI is “strictly voluntary” and limited to information on employee training programs that would violate the EO, why would a federal contractor provide such information on its own programs? The RFI sets forth one potential benefit – a promise by OFCCP not to penalize a contractor that reports its own programs and changes them going forward. Of course, until a contractor enters into an agreement after November 22, 2020, that contains the language required by the EO, no training provided would violate those terms.

For now, most federal contractors will likely decline to provide information related to workplace diversity training programs in response to this RFI. However, federal contractors should be prepared both for the general implementation of EO 13950 and for potential individual reports – from employees or from outsiders – concerning training that they have or will provide for employees on workplace diversity issues. Contractors should:

  • Retain materials and records related to past workplace diversity training.
  • Work with professional trainers who have a good understanding of existing workplace anti-bias laws.
  • Take the substance of EO 13950 into account in preparing and presenting workplace diversity training in the future. As the RFI points out, this does not mean avoiding potentially uncomfortable topics – it just means avoiding “inculcating” employees with broad race- or sex-based stereotypes on individuals because of their race or sex.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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