OFCCP Provides Additional Guidance On “Combatting Race and Sex Stereotyping” Executive Order

Proskauer - Government Contractor Compliance & Regulatory Update

On October 21, 2020 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) held a stakeholder call regarding the agency’s implementation of Executive Order 13950, “Combatting Race and Sex Stereotyping” (the “Order”) which, as we have previously reported, restricts the concepts which contractors may include in anti-discrimination and diversity trainings provided to their employees.  Additional posts discussing the order and related developments are available here, here and here.

Proskauer attended the call, during which OFCCP Director Craig Leen answered questions related to the agency’s release of the Request for Information required by the Order and the roll out of a landing page devoted to the Order.

OFCCP’s Request for Information

On October 21, 2020 OFCCP announced the publication of a Request for Information (“RFI”), consistent with the Order’s directive that the agency do so within 30 days.  In the RFI, OFCCP requests that contractors and other stakeholders provide “comments, information, and materials . . . concerning workplace trainings involving prohibited race or sex stereotyping or scapegoating.”  On the stakeholder call, Director Leen made clear contractors are not required to provide the information, but rather the request is voluntary.

The RFI invites contractors to “provide various other types of materials, such as PowerPoints, photographs, videos, handwritten notes, or printed handouts.”  Responses to this RFI are due by December 1, 2020.

The RFI specifies categories of information it seeks, noting contractors “do not need to provide a response for every category number”:

  1. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping.
  2. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex scapegoating.
  3. The duration of any workplace training identified in categories 1 or 2.
  4. The frequency of any workplace training identified in categories 1 or 2.
  5. The expense or costs associated with any workplace training identified in categories 1 or 2.

OFCCP additionally requests input on any or all of the following questions, if applicable:

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

Contractors may submit materials in response to the RFI anonymously, however, the RFI notes “any materials submitted in response to [the RFI] may be subject to public disclosure.”

During the October 21, 2020 stakeholder call, Director Leen explained that the RFI in intended for information collection rather than enforcement purposes.  Director Leen indicated that responses to the RFI will be treated the same way as contractors’ requests for compliance assistance, meaning the agency will not bring enforcement actions solely based on submissions.  That being said, if, in response to a contractor’s submission, OFCCP provides advice for compliance with the Order and the contractor decides not to implement the agency’s advice, OFCCP could potentially take enforcement action on that basis.  For further information on this point, Director Leen directed stakeholders to pages 8-9 of the RFI, which provides in relevant part:

OFCCP will, consistent with law, exercise its enforcement discretion and not take enforcement action against Federal contractors and subcontractors that voluntarily submit information or materials in response to this request for information, as it relates to submitted information or materials and potential non-compliance with Executive Orders 13950 or 11246, provided that such contractor or subcontractor promptly comes into compliance with the Executive Orders as directed by OFCCP.

Given that responses could potentially lead to enforcement action, it is an open question why any contractor would respond to the RFI.

Executive Order 13950 Landing Page

During the October 21, 2020 stakeholder call, Director Leen also highlighted OFCCP’s launch of a landing page devoted to the Order.  This landing page contains links to:

  • Frequently Asked Questions (“FAQs”) the agency previously published regarding the Order (for more information on the FAQs, see our previous blog post).
  • OFCCP’s RFI; and
  • OFCCP’s Complaint Hotline to Combat Race and Sex Stereotyping (for more information on the Hotline, see our previous blog post and podcast).

[View source.]

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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