As we mentioned in our previous Compliance Matters article (link) detailing the requirements of President Donald J. Trump’s recent Executive Order 13950 (EO 13950), the Office of Federal Contract Compliance Programs (OFCCP) has published a request for information (RFI) in the Federal Register seeking comments, information, and materials from the public (mainly meaning federal contractors and subcontractors, hereinafter “contractors,” but also employees) that involve race or sex stereotyping or scapegoating.

What is the Purpose of the RFI?

In a call with stakeholders on October 21, 2020, OFCCP stated that the main purpose of the RFI was to gather information on training materials that contractors currently use or are considering using that may either run afoul of EO 13950 or may be questionable. That information will be used by OFCCP to further develop its frequently asked questions (FAQ) on the EO 13950 website landing page and offer compliance assistance. The newly launched EO 13950 landing page may be found here (link) and also includes links to the EO, the RFI on the Federal Register, FAQs, and the EO 13950 complaint hotline. On the call, OFCCP assured contractors that the purpose of the RFI is not to bring enforcement actions against contractors that supply training materials that may be noncompliant with EO 13950 (also discussed below).

Why is OFCCP Concerned with Contractors’ Training Materials?

In response to contractors that have questioned why OFCCP is now focusing on training materials involving diversity and inclusion, OFCCP replied that contractors have always had the obligation to comply with the nondiscrimination and affirmative action requirements under EO 11246, which prohibits contractors from making employment decisions based solely on race and gender. The materials that have been deemed unlawful are those which advance or promote race or sex stereotyping or scapegoating which would, in any event, be unlawful under EO 11246. OFCCP explained that EO 13950 and 11246 must be read in conjunction with one another and that EO 13950 merely focuses on a subset of contractors’ affirmative action responsibilities, i.e., training materials. As mentioned in our prior article (link), EO 13950 defines “[r]ace or sex stereotyping” as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex” and “[r]ace or sex scapegoating” as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex [and] encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.” Examples in the RFI of impermissible scapegoating or stereotyping include training materials stating "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." Contractors should also be on the lookout for whether their training materials promote any of the “divisive concepts” as detailed in Section 2(a) of EO 13950 (link).

What Information is OFCCP Seeking?

OFCCP seeks information, comments, and/or materials concerning any or all of the following categories, if applicable:

  1. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping or scapegoating.
  2. The duration and/or frequency of any workplace training identified in response to number 1.
  3. The expense or costs associated with any workplace training identified in response to number 1. 
  4. Have there been complaints concerning this workplace training?
  5. Have you or other employees been disciplined for complaining or otherwise questioning this workplace training (note: OFCCP is encouraging employees to submit comments as well)?
  6. Is your company’s diversity training developed by individuals from your company, or an outside company?
  7. Is diversity training mandatory at your company?
  8. If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
  9. Approximately what portion of your company’s annual mandatory training relates to diversity?
  10. Approximately what portion of your company’s annual optional training relates to diversity?

On the call, OFCCP reiterated that EO 13950 does not prohibit contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided those efforts are consistent with the requirements of the EO. For example, 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. Therefore, OFCCP is not concerned with materials that do not go beyond these parameters.

I am a Contractor; do I have to Respond to this RFI?

Submission to the RFI is strictly voluntary. However, contractors not sure whether their training materials are compliant with EO 13950 may want to voluntarily submit materials to ascertain whether OFCCP finds any issue with the materials. As noted above, OFCCP will exercise its enforcement discretion and not take action against contractors that voluntarily submit information pursuant to the RFI. Nevertheless, OFCCP will offer compliance assistance to contractors whose materials it finds are noncompliant with EO 13950. Importantly, if, after compliance assistance is offered or given, the contractor refuses or does not correct any issues with noncompliant materials, OFCCP may take enforcement action depending on the circumstances. Otherwise, there are no adverse legal consequences for choosing not to participate in the RFI.

How do I Respond to the RFI?

Responses to the RFI are due on or before December 1, 2020. Contractors may submit information by any of the following methods:

Electronic comments: The Federal eRulemaking portal at www.regulations.gov. Follow the instructions found on that website.

Mail, Hand Delivery, Courier: Addressed to Tina Williams, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C–3325, Washington, DC 20210.

Instructions: Please submit one copy of your submission by only one method. For faster submission, contractors are encouraged to submit electronically via www.regulations.gov.

What Now?

It is expected that some contractors may wait until after the November presidential election to decide whether EO 13950 will remain law. Although there is no consequence for not submitting to the RFI, even if a Democratic administration won the election, EO 13950 would nevertheless remain in place unless repealed by the incoming administration. In addition, although EO 13950 does not go into effect until November 22, 2020, contractors should be mindful that OFCCP may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246, 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. With this in mind, we offer the following:

  1. As noted previously, review any diversity and/or inclusion training materials currently being used, or being considered, by your organization to determine whether they are compliant with EO 13950. If they are, you need do nothing.
  2. If your organization’s training materials are not compliant with EO 13950 or it is questionable whether they would be compliant, consider taking advantage of submitting to the RFI and receiving compliance assistance if the materials are found noncompliant. However, if compliance assistance is offered, be sure to correct any issues found so that the company does not end up defending against an enforcement action.

Contractors should keep in mind that employees can submit EO 13950 complaints through OFCCP’s established hotline and OFCCP reserves the right to take enforcement action if a complaint is received. Therefore, if a contractor is aware of employee rumblings regarding diversity/inclusion training materials and is unsure whether such materials are complaint with EO 13950, it may be prudent to submit the materials for review.

If you have any questions regarding the issues discussed in this edition of Compliance Matters, please call your firm contact in California at (818) 508-3700 or in North Carolina at (704) 765-1569, or visit us online at www.brgslaw.com.

Sincerely,
David Harvey
Richard S. Rosenberg
Ballard Rosenberg Golper & Savitt, LLP