Summary
The Upshot
- The OFCCP has taken an aggressive stance recently in investigating purported reverse discrimination issues based on employers’ public announcements about racial equity programs that include workforce measures to increase or enhance diversity.
- This approach may signal that the OFCCP also will proceed aggressively under the new Executive Order when it comes to investigating workplace diversity training programs.
The Bottom Line
FULL ALERT
As we previously reported here, on September 22, 2020, President Trump issued an Executive Order on Combatting Race and Sex Stereotyping that prohibits federal contractors and perhaps grant recipients from certain anti-bias employee training practices (the Executive Order). Department of Labor Secretary Eugene Scalia recently commented that the Executive Order is not “intended to prevent companies from . . . provid[ing] training on nondiscrimination, respect for others in the workplace regardless of sex, race and the like,” but to prohibit “highly offensive” training regarding implicit bias.
To further those stated-goals, the Department of Labor (DOL) issued a September 28, 2020, press release announcing that its Office of Federal Contract Compliance Programs (OFCCP) established the “OFCCP Complaint Hotline to Combat Race and Sex Stereotyping,” as mandated by Section 4.4(b) of the Executive Order. The hotline will be used to:
investigate complaints received under both [the Executive Order] as well as Executive Order 11246 alleging that a federal contractor is utilizing such training programs in violation of the contractor’s obligations under those orders. The Department shall take appropriate enforcement action and provide remedial relief, as appropriate.
While the specific requirements of the Executive Order apply only to those entering into federal contracts after November 21, 2020, the press release explains that current training programs may violate existing Executive Order 11246, “which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.” The OFCCP also included a reminder that it enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Veterans’ Readjustment Assistance Act of 1974, which prohibit contractor discrimination against employees because of membership in a protected class, or against applicants or employees because of inquiries or discussions regarding compensation, as well as retaliation.
Additionally, on October 7, 2020, the DOL issued guidance regarding the Executive Order’s requirements, which consisted of answering nine frequently asked questions (FAQs). For the most part, the FAQs parrot the provisions of the Executive Order, with a few exceptions. First, in an attempt to further delineate between permissible and impermissible training under the Executive Order, the FAQs state:
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.
However, references to “training” have raised questions about the extent to which educational institutions in receipt of federal financial assistance may include topics of diversity, equity, and inclusion (DE&I) in their curricula. While the Executive Order provides that “[n]othing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement,” it remains to be seen how “objective” will be defined in this context.
Next, and similar to the press release, the FAQs restate that the OFCCP may investigate claims of discrimination under Executive Order 11246 at any time, and take the position that training that violates the Executive Order “may also violate the affirmative and nondiscrimination obligations of Executive Order 11246.”
In case the DOL’s intent to enforce both Orders was not clear enough, the FAQs conclude by stating that the OFCCP will issue a Request for Information from federal contractors, subcontractors, and employees by October 22, 2020, as required by the Executive Order, which will be for “training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950.”
The OFCCP has taken an aggressive stance recently in investigating purported reverse discrimination issues based on employers’ public announcements about racial equity programs that include workforce measures to increase or enhance diversity. In the wake of civil unrest across the country and increased discourse about the inequities faced by Black people in corporate America, employers have launched comprehensive diversity efforts, including initiatives aimed at enhancing workforce diversity. Shortly after the Executive Order was issued, the DOL announced investigations into whether these initiatives constitute unlawful hiring preferences or quotas.
This approach may signal that the OFCCP also will proceed aggressively under the new Executive Order when it comes to investigating workplace diversity training programs.
Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise and represent public and private employers on anti-discrimination and compliance issues, including keeping clients informed of pending and current legislation and legal trends. The Diversity and Inclusion Counseling Team also advises employers in a range of industries on the development, enhancement, and implementation of their DE&I programs. The Education Group counsels education clients of every size and type on diverse needs, including compliance matters. Contact any member of those groups for more information.
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