Thursday, October 22, 2020: OFCCP Seeks Information on Contractor D&I Training Programs
OFCCP published a Request For Information (RFI) related to Executive Order 13950, titled “Combating Race and Sex Stereotyping.” (See our story and bonus blog by John Fox). The Order established that it is the policy of the United States not to promote race or sex-stereotyping or scapegoating in the Federal workforce or in the uniformed services. It goes on to specify that “Federal contractors will not be permitted to inculcate such views in their employees” through workplace training.
As Executive Order 13950 directed, the Agency announced the RFI within 30 days of the issuance of EO 13950. In the announcement, OFCCP explained that it was “seeking information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees.” The RFI requests that federal contractors, subcontractors, and their employees provide copies of any training, workshop, or similar programming having to do with diversity and inclusion. It also seeks information about the duration, frequency, and expense of such activities. In a separate announcement, the USDOL indicated that the OFCCP will offer compliance assistance to organizations that submit their training information through the Request For Information.
Speaking at an OFCCP Town Hall Listening Session, OFCCP Director Leen informed listeners that the Agency has already received roughly 100 calls on the hotline established only last month. He also stated that submitting information per the RFI is entirely voluntary.
Olly Olly Oxen Free Safe Harbor: Although submitting training information will not make a contractor exempt from future enforcement of either Executive Order 13950 or Executive Order 11246, OFCCP will not subject contractors to enforcement procedures and unlawful discrimination findings based on the specific information they do submit to OFCCP in response to its RFI. NOTE: OFCCP is seeking to force compliance with BOTH EO 13950 and EO 11246 and OFCCP’s Complaint Hotline invites Complaints under either or both Orders. Accordingly, it is possible to be in compliance with EO 11246 but out of compliance with EO 13950. [For example, EO 13950 makes it a violation of the Executive Order if a covered Government contractor “inculcates” views which the Order defines as “divisive,” while it is unclear that EO 11246 would reach that far. Also, EO 13950 makes it a violation of the Executive Order if a contractor espoused views to trainees that the “United States is fundamentally racist or sexist.” EO 11246 would clearly not reach this conduct since espousing this view does not provoke any “adverse action” (discrimination “in the air” is not unlawful unless it constitutes unlawful harassment because it is “pervasive” or “severe”). Moreover, such a view has no bearing on any employment transaction. Finally, EO 13950 is not limited to or bound by the jurisdictional limits of EO 11246 [i.e. $10,000 in contracts (aggregated)].
Contractors which discover they have deployed unlawful training materials based on race or sex or any other Protected Status in violation of any of the statutes OFCCP enforces, or of EO 13950 may thus immunize their prior bad acts by submitting their unlawful training materials to OFCCP for review in response to the ICR. Note: Complainants may challenge unlawful trainings to which they have been subjected if they file a Complaint within 180 days from the date of the alleged unlawful discrimination, unless OFCCP extends the time for filing for “good cause shown.” See 41 CFR Section 60-1.21. Also, unlike the EEOC which does not investigate MOST of its Charge inventory, OFCCP MUST undertake an investigation of any Complaint in its inventory over which it properly has jurisdiction. (Remember when we had candid government when the agencies called their “inventory” of pending Charges/Complaints what it truly is: “backlog”!) Moreover, OFCCP has limited liability for unlawful discrimination in Compliance Reviews to the two years prior to its audit Scheduling Letter (not the CSAL notice).
Practice Tips: If your company is listed on an OFCCP Corporate Scheduling Announcement List (CSAL) for an upcoming OFCCP Compliance Evaluation, or has received a Complaint from an Applicant (or more likely in this context) from an incumbent employee, or you harbor any doubt whether your company training materials contain unlawfully discriminatory content, you should contact competent discrimination law counsel immediately to review your training materials. If you discover your company has deployed unlawfully discriminatory content, you may wish to further discuss, under Attorney-Client Privilege, the pros and cons of disclosing your unlawful training materials to OFCCP in response to its RFI.
Submit Comments on or before December 1, 2020.