OFCCP Issues FAQs on Executive Order Combating Race and Sex Stereotyping

As we reported, on September 22, 2020, President Trump issued “Executive Order on Combating Race and Sex Stereotyping,” (Executive Order 13950) in an effort to “to combat offensive and anti-American race and sex stereotyping and scapegoating.” Executive Order 13950 also prohibits federal contractors from inculcating such views in their diversity and inclusion trainings.

On or about October 7, 2020, the Office of Federal Contract Compliance Programs (OFCCP) issued nine Frequently Asked Questions (FAQs) to address Executive Order 13950. The FAQs include a range of topics — from the effective date of the Executive Order and examples of race or sex stereotyping or scapegoating, to how to file a complaint for unlawful training programs.

The FAQs confirmed that Executive Order 13950 became effective on September 22, 2020, but the requirements for federal contractors and subcontractors will apply to contracts entered into on or after November 21, 2020. The agency also notes, however, that it 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.

The FAQs define the terms “race or sex stereotyping” and “race or sex scapegoating” consistent with Executive Order 13950, and provide examples of race or sex stereotyping or scapegoating that include, among other things, “one race or sex is inherently superior to another race or sex” or “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

Notably, the FAQs state that unconscious bias or implicit bias 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.” Such training is prohibited, however, “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 FAQs provide information regarding how to file a complaint that alleges unlawful training programs and notes the consequences of noncompliance. As previously reported, the OFCCP recently announced its new hotline and email address to provide a forum to report noncompliance with the Executive Order. The OFCCP’s existing complaint process states that an individual, organization or group can file a complaint on behalf of “anyone who may be the victim of employment discrimination by an employer doing business with the Federal Government.” Similarly, the FAQs state that “third parties” may file a complaint “on behalf of an individual or a group.” It is unclear whether the FAQs are intended to expand the scope of potential reporting parties.

Despite the issuance of the FAQs, the specifics of what is prohibited, as well as the scope of enforcement, remain unclear. Contractors found in violation of Executive Order 13950 may be canceled, terminated, suspended or declared ineligible for additional government contracts. Because of the potential extreme consequences for violating the Executive Order, contractors face significant risk and should not rely on compliance with prior OFCCP guidance when putting in place HR training programs or employee codes of conduct.

Executive Order 13950 requires the OFCCP director to issue a request for diversity and inclusion information in the Federal Register. The FAQs confirm that the Request for Information is currently being drafted to meet the Executive Order’s October 22, 2020 deadline. As detailed in the Executive Order, the OFCCP is expected to seek information from federal contractors and subcontractors and their employees regarding their workplace training and workshops. Accordingly, contractors should begin reviewing their training materials to ensure they are not in violation of the Executive Order.

Faegre Drinker will continue to monitor Executive Order 13950 developments.