EEO Compliance Dispatch

The Office of Federal Contract Compliance Program issued a Request for Information asking for comments, information, and materials from contractors and employees relating to workplace training that might violate Executive Order 13950.

As we previously reported, President Trump recently issued Executive Order 13950, Combating Race and Sex Stereotyping, which prohibits federal contractors from “inculcating” in their employees certain “divisive concepts” that involve race or sex stereotyping or scapegoating. The Executive Order directed the OFCCP to post a notice in the Federal Register requesting information about contractors’ training and workshops. This Request for Information complies with that directive.

The Request for Information asks for information and materials relating to workplace training programs that promote, or could reasonably be interpreted to promote, stereotyping or scapegoating based on race or sex, as well as the duration, frequency, or cost of such training. Suggested submissions include Power Point shows, photographs, videos, handwritten notes, or printed handouts from training programs that have been used “in recent years” or that may be used soon, whether the training is mandatory or voluntary. 

The OFCCP also poses five questions:

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

The OFCCP states that the information provided will help the agency design programming and compliance assistance for contractors. 

Although submission of information by contractors is entirely voluntary, the OFCCP offers a carrot for entities concerned that they may not be in compliance with either Executive Order 11246 or Executive Order 13950. 

OFCCP will, consistent with law, exercise its enforcement discretion and not take enforcement action against Federal contractors . . . that voluntarily submit information or materials in response to this request for information, . . . provided that such contractor . . . promptly comes into compliance with the Executive Orders as directed by OFCCP. If a Federal contractor . . . who voluntarily submits information or materials in response to this request for information is determined by OFCCP to have non-compliant materials, and the contractor or subcontractor refuses to correct the issue after compliance assistance is provided, OFCCP may take enforcement action against the contractor or subcontractor if OFCCP later receives the contractor [sic] or subcontractor’s materials through a separate source, such as a neutrally scheduled audit, in connection with a complaint, or if submitted by an employee in response to this RFI.

Significantly, a contractor can take advantage of this “safe harbor” only if information is submitted to the OFCCP by an executive, owner, or legal representative of the contractor. 

The OFCCP reminds contractors and employees that workplace training that “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” is not prohibited by Executive Orders 11246 or 13950. However, it provides examples of impermissible topics, such as teaching that 

concepts like ‘[o]bjective, rational linear thinking,’ ‘[h]ard work’ being ‘the key to success,’ the ‘nuclear family,’ and belief in a single god are not values that unite Americans of all races but are instead ‘aspects and assumptions of whiteness.’

OFCCP Director Craig Leen also held a call with stakeholders to address the Request for Information and to respond to questions that have been raised.  He stated that the agency wants as much relevant information as possible to help it develop compliance assistance materials and that the OFCCP is hoping for “a significant response.” 

Responses are due by December 1. Contractors are encouraged to consult with legal counsel before submitting any training materials to determine whether a submission is appropriate and, if so, to ensure that the safe harbor provision can be applied.