How is OFCCP responding to EO 13950?

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Since September 22, 2020, when President Donald J. Trump signed an executive order (EO) titled “Executive Order on Combating Race and Sex Stereotyping,” the Office of Federal Contractor Compliance Programs (OFCCP) rolled out several sources to provide guidance to federal contractors and subcontractors and other stakeholders on what to expect next.

FAQs

On October 7, 2020, OFCCP published much anticipated guidance on how it would enforce EO 13950. The frequently asked questions (FAQs) include a list of “examples of race or sex stereotyping or scapegoating” and specifically asserted that EO 13950 does not prohibit all types of “unconscious or implicit bias training.” Noteworthy is OFCCP’s position that it can bootstrap its authority and investigate claims of sex and race stereotyping or scapegoating now “pursuant to its existing authority under Executive Order 11246,” even though EO 13950 applies to contracts entered into and/or modified after November 21, 2020. The FAQs also touted OFCCP’s new OFCCP Complaint Hotline to Combat Race and Sex Stereotyping.

New Landing Page

On October 21, 2020, OFCCP announced its “landing page” as a “one-stop source for federal contractors, federal subcontractors and their employees to learn about” EO 13950. The landing page contains links that direct stakeholders to EO 13950, the FAQs, OFCCP’s Request for Information (RFI), and OFCCP’s Complaint Hotline to Combat Race and Sex Stereotyping.

Request for Information

On October 22, 2020, OFCCP published in the Federal Register an RFI pursuant to EO 13950 seeking “comments, information, and materials from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors concerning workplace trainings involving prohibited race or sex stereotyping or scapegoating.”  According to the RFI, the president “directed that the request for information should request copies of any training, workshops or “similar programming having to do with diversity and inclusion” as well as information about the duration, frequency and expense of such activities.” The RFI is voluntary, and contractors or their employees may anonymously submit materials. There is no requirement for covered contractors to submit their training program materials.

Through the RFI, OFCCP offers contractors the opportunity to submit training materials for the purpose of OFCCP providing technical assistance on whether the materials run afoul of the requirements of EO 13950. It is notable that the RFI seeks submissions of training materials not only from covered contractors but also from “employees” of covered contractors. So regardless of whether a covered contractor  elects to participate in the offer for compliance assistance, there is a vehicle for employees of covered contractors to provide any types of training programs  to OFCCP.

Stakeholder Call

On the same day, OFCCP hosted a stakeholder call to announce the RFI publication and to provide some insight on EO 13950. OFCCP’s Director Craig Leen stated, in no uncertain terms, that EO 13950 is not inconsistent with EO 11246 and the authority that OFCCP has to investigate claims of race and gender discrimination in the workplace. Director Leen did not provide any further insight as to what sort of behavior is defined as “race and gender stereotyping” prohibited by EO 13950—he said it was all in the RFI and FAQs. However, he did refer to the OFCCP Complaint Hotline several times, stating that it continues to be an avenue for reporting workplace discrimination complaints based on race and gender against Federal government contractors and subcontractors and that any “stakeholder” can lodge a complaint through the hotline or other available avenues.  Significantly, in this call Director Leen defined “stakeholders” to include covered contractors and subcontractors, employees, and anyone “affected” who may feel the need to file a complaint as a “whistleblower.”

Director Leen also noted that OFCCP will not take enforcement action against a covered employer that submits program materials for the “informational” review in accordance with the RFI, but if OFCCP offers compliance assistance to an employer whose material has been submitted and later determines that corrective action was not taken and/or was not sufficient, OFCCP may consider an enforcement action to ensure compliance by the covered contractor. Finally, Director Leen stated that OFCCP still encourages contractors to implement diversity and inclusion programs, but contractors must ensure that such programs comply with EO 11246 and EO 13950—i.e., contractors are prohibited from stereotyping, steering employees into lower-paying jobs, using quotas, and implementing unlawful preferences in hiring.

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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