The President’s Executive Order on Combating Race and Sex Stereotyping (the “Executive Order”) has caused serious concern and confusion among federal contractors. The government’s latest guidance gives us more information, but many unanswered questions remain.
The Office of Federal Contract Compliance Programs (“OFCCP”) recently published FAQs addressing the controversial Executive Order, and issued a Request for Information (“RFI”) designed to advise federal contractors as to whether their diversity and inclusion and bias training materials comply with the Executive Order.
In short, the Executive Order prohibits most federal contractors from sponsoring workplace training that engenders in its employees any form of race or sex stereotyping or any form of race or sex scapegoating, and provides broad and ambiguous instances of race and sex stereotyping. A full summary of the Executive Order can be found in Shulman Rogers’ previous Alert.
The OFCCP’s FAQs specifically address unconscious bias and implicit bias training, stating:
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.
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.
The RFI, issued on October 21, 2020, requests, among other information, existing or proposed training materials for guidance and a determination as to whether the materials comply with the Executive Order. The RFI emphasized the above-quoted language.
The RFI encourages employers to voluntarily submit the requested information and materials for review by December 1, 2020, and further states that the OFCCP will exercise its enforcement discretion and not take enforcement action against Federal contractors and subcontractors who voluntarily submit information of materials in response to the RFI provided that they promptly come into compliance with the Executive Order as directed by the OFCCP.
Meredith S. Campbell Chair, Employment and Labor Group
Shulman Rogers firstname.lastname@example.org | T 301.255.0550 | F 301.230.2891