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October 15, 2020

Department of Labor Issues Guidance on President's Executive Order on Diversity Training

On October 7, 2020, the US Department of Labor, through its Office of Federal Contract Compliance (OFCCP), issued guidance for federal contractors on the enforcement of Executive Order 13950, President Trump’s September 22, 2020, order “Combating Race and Sex Stereotyping.” The guidance answers some of the questions the executive order did not explicitly cover.

The Guidelines state, “Unconscious or implicit bias training is prohibited to the extent that 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.” The Guidelines note that such training, or employment generally, may also violate the affirmative and nondiscrimination obligations of Executive Order 11246. That order was promulgated during the Johnson administration and last amended in 1978. It broadly prohibits discrimination in employment by government contractors and subcontractors.

Training is permissible if it is designed to inform workers or foster discussion about preconceptions, opinions, or stereotypes that may be held about people of different races or sexes and that could influence a worker’s conduct or speech and be perceived by others as offensive. Contractors should review their training programs to make sure they do not violate the prohibitions of the Guidelines.

Although Executive Order 13950 stated the requirements for federal contractors and subcontractors would only apply to contracts entered into after November 21, 2020, 60 days after the date of the order, the Guidelines also state that OFCCP could investigate claims of sex and race stereotyping “pursuant to its existing authority under Executive Order 11246.” In fact, the link for reporting claims of sex and race stereotyping is already on the OFCCP website. Complaints received under the authority of Executive Order 11246 will be investigated immediately. Contractors found in violation may have their contracts canceled, terminated, or suspended in whole or in part and may also be declared ineligible for future government contracts.

Finally, the Guidelines indicate the Department of Labor is currently drafting a request for information to meet the October 22, 2021, deadline set forth in Executive Order 13950. Although the executive order states the request for information should ask federal contractors, federal subcontractors, and employees of federal contractors and subcontractors about any training, workshops, or similar programming having to do with diversity and inclusion, the Guidelines state the request for information will seek information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950. It is unclear whether a contractor or subcontractor is to provide information on all diversity training or just training that may be in violation of the Guidelines.

If you have any questions regarding the content of this alert, please contact Alan Peterman, partner, at apeterman@barclaydamon.com, Michael Murphy, partner, at mjmurphy@barclaydamon.com, or another member of the Labor & Employment Practice Area.

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