DOL Gives Guidance on Ban of Certain Diversity Training Topics for Federal Contractors, Grant Recipients and Uniformed Services

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) answered frequently asked questions to clarify President Donald Trump’s Sept. 22 Executive Order 13950 - Combating Race and Sex Stereotyping.

In general, the order covers federal contractors, agencies, certain grant recipients and the military. It prohibits them from offering workplace diversity and inclusion trainings that “promote race or sex stereotyping or scapegoating.” It also requires agencies to include provisions in government contracts effectuating this prohibition. Although the FAQs say the order applies only to government contracts entered into after Nov. 21, the OFCCP may immediately investigate claims of sex and race stereotyping “pursuant to its existing authority under Executive Order 11246,” signed by President Lyndon B. Johnson in 1965. Executive Order 11246, Equal Employment Opportunity, prohibits employment discrimination.

The guidance reiterates that it is the policy of “the United States ‘not to promote race or sex stereotyping or scapegoating.’” The guidance defines “race 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.” It explains that “race or sex stereotyping” is considered “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to an entire race or sex, or to individuals because of their race or sex.” But beyond clarifying semantics and noting that “such stereotyping and scapegoating” is unlawful, the guidance largely leaves open what types of trainings the order bans.

The FAQs quote the order’s examples of banned race or sex stereotyping in workforce training, repeating that trainings teaching the following concepts are prohibited:

• One race or sex is inherently superior to another race or sex.
• A person, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously.
• A person should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex.
• Members of one race or sex cannot and should not attempt to treat others without respect to race or sex.
• A person’s moral character is necessarily determined by his or her race or sex.
• A person, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.
• Any person should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex.
• Meritocracy or traits such as a hard work ethic are racist or sexist or were created by a particular race to oppress another race.

The FAQs say the order does not necessarily bar trainings on unconscious or implicit bias, explaining that “if [the training] is designed to inform workers, or foster discussion, of pre-conceptions, opinions or stereotypes that people – regardless of their race or sex – may have regarding people who are different,” such trainings are allowed. But 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.”

The guidance also clarifies how the order will be enforced. The OFCCP, which polices workplace bias among federal contractors, established a “hotline” to field complaints that prohibited training sessions are taking place. Complaints to the newly created hotline will be investigated, and companies could have their contracts canceled, terminated or suspended.

Given the immediacy of the order’s effect, contractors should review their diversity and inclusion training now to determine if their trainings conflict with the order, as supplemented by the FAQs.

Please contact Stephanie Poucher or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.