OFCCP Issues Voluntary Request for Information Regarding Diversity and Inclusion Programs

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On October 21, 2020, the Office of Federal Contract Compliance released a Request for Information (RFI) relating to federal contractor and subcontractor training, and the recently issued Executive Order 13950. That order, among other things, instructs government contracting agencies to add provisions to government contracts prohibiting the use of any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”1  While Executive Order 13950 will not apply to federal contractors until these provisions are added to new government contracts, OFCCP has taken the position that racial or sexual stereotyping or scapegoating may already violate the existing Executive Order 11246, which generally prohibits non-discrimination by federal contractors, and includes certain affirmative action requirements.

The new order also directed OFCCP to issue the new RFI, which requests information on a number of topics relating to diversity and inclusion training.  The RFI is voluntary in nature, and no contractor or subcontractor is required to share their training materials with OFCCP, or otherwise provide additional information.  In rolling out the RFI, OFCCP noted that any business, or employee of any business, is free to respond to it.  The information sought by the RFI includes:

  • workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping
  • workplace trainings that promote, or could be reasonably interpreted to promote, race or sex scapegoating
  • the duration and frequency of any such workplace trainings, as well as their expense or costs

In addition, OFCCP requests information as to the following questions, some of which appear directed to company management, while others are plainly directed to employees:

  • Have there been complaints concerning this workplace training? Have you or other employees been disciplined for complaining or otherwise questioning this workplace training?
  • Who develops your company’s diversity training? Is it developed by individuals from your company, or an outside company?
  • Is diversity training mandatory at your company? If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
  • Approximately what portion of your company’s annual mandatory training relates to diversity?
  • Approximately what portion of your company’s annual optional training relates to diversity?

OFCCP’s stated purpose for the RFI is to obtain additional information that will enable it to develop additional tools for compliance assistance, and add to its previously issued list of FAQs.  Federal contractors and subcontractors are permitted to submit these materials, and OFCCP noted in its rollout that the mere submission of material will not be grounds for an enforcement action.  However, the agency also noted that where OFCCP offers compliance assistance to an employer (such as recommending deletion of certain materials), and the employer fails to comply, such non-compliance could form the basis of future enforcement actions, in response to either complaints or routine audits.  Responses to the RFI must be submitted by December 1, 2020 to receive consideration. 

Although this RFI does not relate to any proposed rulemaking, responses to the RFI may become a relevant part of the record in the event of any future litigation regarding the executive order and its implementation.  Accordingly, parties that have an interest in the issues raised by this order may have an interest in submitting comments for the purposes of supporting creation of a fair record. The responses that OFCCP receives may help to determine whether this executive order can survive legal challenges.

Employers considering responding to the RFI are advised to consult with labor and employment counsel to analyze the potential pros and cons of doing so.  Employers that wish to comment more generally as to the value of their own diversity and inclusion programs or such programs in general, should also discuss this option with counsel.2 

 

Footnotes

1 Race or sex stereotyping is defined by the order to mean “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex,” while race or sex scapegoating, as used in the order, means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex,” and includes claims “that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”  Under the order, the inclusion in workplace diversity training programs of these concepts—most of which are not commonly emphasized in such training but some of which are at least related to concepts of implicit bias or the history of systemic racism—may be prohibited.

2 Littler’s Workplace Policy Institute™ is able to assist in doing so, and will provide information as to any additional OFCCP activity relating to the executive order as it develops.

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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