OFCCP Provides Guidance on Diversity Training Executive Order

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Orrick - Employment Law and Litigation

On October 7, 2020, OFCCP issued initial guidance regarding President Trump’s recent executive order prohibiting certain diversity-related training by federal contractors (“Executive Order on Combating Race and Sex Stereotyping”).  As we previously reported, under this Executive Order, all government contracts entered into after November 21, 2020 must contain certain provisions related to the prohibition of workplace trainings that encompass “race or sex stereotyping” or “race or sex scapegoating,” and covered contractors are prohibited from implementing such trainings in their workforces.

The guidance contains a few noteworthy clarifications, including the following:

  • While the Executive Order’s requirements for federal contractors only apply to contracts entered into after November 21, 2020, OFCCP may investigate claims of race or sex stereotyping pursuant to its existing authority under Executive Order 11246, which prohibits contractors from discriminating against their employees and requires contractors to take affirmative action to prevent such discrimination.
  • With respect to unconscious or implicit bias training, it is prohibited only “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.” By contrast, such training can proceed “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 guidance clarifies that the definition of “race or sex scapegoating” includes “any claim that, consciously or unconsciously, and by virtue of their 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.”
  • OFCCP also clarifies that any individual, group, or third party may file a complaint related to race or sex stereotyping and scapegoating. Any complaints based on Executive Order 11246 will be investigated immediately following OFCCPs normal procedures, but the agency will not enforce the new executive order until it becomes effective in federal contracts.

We will continue to monitor developments on these issues.

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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