On October 7, 2020, the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its initial FAQ regarding President Trump’s Executive Order 13950, Executive Order on Combating Race and Sex Stereotyping (“Executive Order”). As discussed in our recent blog post, the Executive Order prohibits federal contractors from conducting workplace training during the performance of a government contract that inculcates certain “divisive concepts” in employees, and requires federal contractors to impose the same prohibition on their subcontractors and vendors.
The guidance provides some clarity to the Executive Order, which has been widely described as difficult to understand and implement. We highlight some of the guidance’s key points below.
The Executive Order prohibits some-but not all-unconscious or implicit bias training
The FAQs state that unconscious or implicit bias training is prohibited 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.
However, unconscious or implicit bias 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.
A new hotline for complaints has been established
Any individual or group (or third party representative) may file a complaint via telephone or email with the ”new hotline” for reporting race and sex stereotyping and scapegoating. Complaints that are received on the hotline under Executive Order 11246 (Equal Employment Opportunity) will be investigated “immediately” following the agency’s standard procedures. Once Executive Order 13950 becomes effective in federal contracts, OFCCP will begin enforcing it. Contractors who violate the Executive Order may have their contracts canceled, terminated, or suspended, in whole or in part, and also may be declared ineligible for additional government contracts in accordance with the procedures authorized in Executive Order 11246.
The OFCCP can investigate claims now
The guidance emphasizes that even though Executive Order 13950’s requirements will apply to contracts entered into on or after November 21, 2020, the OFCCP may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246 (Equal Employment Opportunity), which requires contractors and subcontractors to treat employees without regard to their race or sex (among other protected bases) and requires contractors to take affirmative action to ensure such discrimination does not occur.
The DOL’s RFI is “currently” being drafted
The Executive Order mandates that the DOL publish a Request for Information (RFI) by October 22, 2020, seeking information from federal contractors, federal subcontractors, and their employees regarding training, workshops, or similar programming provided to employees that may be in violation of the Executive Order or Executive Order 11246. The guidance states the DOL is currently drafting the RFI to meet the October 22 deadline. It remains to be seen how the RFI will be implemented.
In our prior blog on the Executive Order, we provide the key considerations that federal contractor employers should keep in mind moving forward. For assistance with your employment law needs, contact your Baker McKenzie employment attorney.