On October 21, 2020, the Office of Federal Contract Compliance Programs (OFCCP) continued to address the highly-controversial diversity and inclusion (D&I) training restrictions in Executive Order 13950. Specifically, OFCCP issued a Request for Information (RFI) regarding contractor D&I training efforts, as required by the Executive Order, and also held a stakeholder call in which Director Craig Leen addressed several issues surrounding OFCCP’s response to the Executive Order.
In the RFI, OFCCP provided some hints as to its enforcement and compliance assistance efforts for the Executive Order’s D&I training restrictions. Echoing its prior guidance, OFCCP clarified 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.” As with prior agency guidance, this statement makes clear that while discussions of implicit bias are not absolutely prohibited, those discussions cannot single out specific racial or sex groups as being more likely to harbor biases than others, and must focus on the workforce as a whole.
The RFI also invited federal contractors who are unsure about the compliance status of their D&I training materials to seek compliance assistance from OFCCP. According to the RFI, if a contractor voluntarily submits materials to OFCCP for review, OFCCP will “exercise its enforcement discretion and not take enforcement action” if the contractor “promptly comes into compliance with the Executive Order as directed by OFCCP.” However, OFCCP reserves the right to pursue enforcement action if it determines that the contractor refused to correct any identified issues. The RFI also hints that OFCCP may begin requesting D&I training materials in its neutrally-scheduled compliance evaluations, though this request may require OFCCP to obtain approval to modify its OMB-approved Scheduling Letter. As of October 21, 2020, OFCCP has not requested OMB approval to update its Scheduling Letter in light of the Executive Order.
If a contractor wishes to respond to the RFI, the deadline is December 1, 2020. The RFI makes clear that responses are entirely voluntary and contractors may choose not to respond. However, if someone other than a contractor representative authorized to submit the materials on behalf of the contractor provides information to OFCCP, for example an employee who attended a training session, OFCCP will not exercise its enforcement discretion and could pursue an enforcement action. Accordingly, there is some risk that a contractor may be subjected to an enforcement action as a result of this RFI even if it does not choose to participate.
Director Leen stated similar themes in the October 21, 2020 stakeholder call. Director Leen emphasized that there is overlap between Executive Order 13950’s restrictions on D&I trainings and the pre-existing non-discrimination obligations in Executive Order 11246. Director Leen characterized Executive Order 13950 as clarifying Executive Order 11246’s prohibition of race or sex stereotyping in the specific area of training programs, and noted that OFCCP would act on any employee complaints it received under the new Executive Order. This means that all federal contractors must comply with Executive Order 13950, even if they do not have a contract containing the Executive Order’s required clause. Director Leen closed his remarks by expressing that every employee should feel “completely welcome and included” in contractor diversity efforts, and that “merit and merit alone” should govern contractors’ personnel actions.
Although the RFI and stakeholder call provided some insight into OFCCP’s views and enforcement strategy on Executive Order 13950, they did not provide the specific guidance that contractors have sought. Polsinelli has worked with several government contractor clients to assess their obligations and the compliance status of their D&I efforts under Executive Order 13950, and will continue to update the contractor community on developments regarding the Executive Order.