The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) has issued guidance on President Trump’s September 22, 2020 “Executive Order on Combatting Race and Sex Stereotyping” (the “Order”) which restricts the concepts which contractors may include in anti-discrimination and diversity trainings provided to their employees. Though much of the publication summarizes key provisions of the Order, two key components provide important guidance: (1) although the Order’s prohibitions will only apply directly to contractors with contracts executed after November 21, 2020, OFCCP warns including the prohibited concepts in trainings may also violate the non-discrimination obligations found in Executive Order 11246 which apply to all federal contractors; and (2) OFCCP does not view the Order as barring all forms of unconscious bias or implicit bias trainings.
Whether or not federal contractors are parties to contracts entered into after November 21, 2020, all contractors need to be aware of the restrictions contained in the Order, particularly given the hotline OFCCP established last week to receive complaints about trainings that violate the Order. Contractors should also review the Order carefully to understand its precise parameters as they assess whether to enter into new contracts with the federal government. Contractors may determine that they can continue their existing training programs and comply with the letter of the Order. For example, as OFCCP has recognized, contractors can continue to provide their unconscious bias and similar trainings, provided they do not teach that a particular race or sex is “inherently racist, sexist, or oppressive.”
Contractors should also be aware that the Order, and OFCCP’s actions in response to it, reflect a growing focus on race discrimination of any kind, as opposed to only discrimination against traditionally disadvantaged groups. Contractors must be aware that some efforts at