The Office of Federal Contract Compliance Programs (OFCCP) published a Request for Information (RFI) today in the Federal Register, seeking information from federal contractors, federal subcontractors, and their employees regarding diversity and inclusion training, workshops, or similar programming provided to employees. The RFI also requests information about the duration, frequency, and expense of such programming.
OFCCP was directed to issue the RFI by the White House under Executive Order 13950, “Combating Race and Sex Stereotyping.” (See our LawFlash, Executive Order Prohibits “Divisive” Workplace Diversity Training by Federal Government, Contractors, and Grantees.) Accordingly, the RFI is focused on trainings that involve “race or sex stereotyping or scapegoating” and OFCCP states that it will use the information to formulate OFCCP programming and develop compliance assistance to the federal contracting community. Submissions are due by December 1, 2020.
Responses are strictly voluntary and contractors and subcontractors should carefully weigh the pros and cons of submitting their diversity and inclusion training materials. On the one hand, submissions will undoubtedly aid OFCCP in developing compliance assistance, which inures to the benefit of all stakeholders, and if a contractor’s materials pass muster under OFCCP’s standards, this will provide reassurance to the submitting contractor going forward. On the other hand, submitters would be exposing their materials to government scrutiny and potential disagreement with OFCCP’s determination of what is acceptable and what is prohibited at a time when OFCCP’s expectations are still not entirely clear.
Executive Order 13950 established that it is “the policy of the United States not to promote race or sex stereotyping or scapegoating,” and “Federal contractors will not be permitted to inculcate such views in their employees” through workplace training. OFCCP has also made it clear that trainings that teach race or sex stereotyping or race or sex scapegoating may also violate Executive Order 11246, which forbids federal contractors and subcontractors from discriminating on the basis of race or sex in employment. OFCCP has already launched at least two investigations based on Executive Order 11246. (See our LawFlash, Recent Administration Actions on Diversity Training and Aspirational Diversity Goals.)
In the RFI, OFCCP attempts to clarify the line between acceptable diversity and inclusion training – which is an important part of contractor affirmative action efforts – and unacceptable training programs. Training is not prohibited “if it is designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people . . . may have regarding people who are different, which could influence a worker’s conduct or speech and be perceived by others as offensive.” The RFI is focused on prohibited trainings that include race or sex stereotyping which means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.” Race or sex scapegoating means “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex,” and includes claims “that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
The RFI generally restates the Executive Order 13950 explanation and examples of workplace trainings that qualify as unlawful race or sex stereotyping or scapegoating. For example, impermissible scapegoating or stereotyping includes training materials stating “that concepts like ‘[o]bjective, rational linear thinking,’ ‘[h]ard work’ being ‘the key to success,’ the ‘nuclear family,’ and belief in a single god are not values that unite Americans of all races but are instead ‘aspects and assumptions of whiteness.’”
Contractors, subcontractors, employees, or any member of the public may submit workplace trainings involving prohibited race or sex stereotyping or scapegoating. They may provide various other types of materials, such as PowerPoints, photographs, videos, handwritten notes, or printed handouts. OFCCP has invited all forms of media and data that has or may soon be used, in voluntary and mandatory trainings, workshops, or other similar programming.
Specifically, OFCCP seeks information and materials concerning any or all of the following categories:
OFCCP additionally requests input on any or all of the following questions:
The RFI makes clear that the request for information is strictly voluntary and there are no adverse legal consequences for choosing not to participate. Federal contractors and subcontractors who have questions about whether their workplace trainings or programs are compliant with Executive Order 13950 or Executive Order 11246 may want to voluntarily submit information in the hope that OFCCP will approve the materials, or provide compliance assistance if it considers them to be unacceptable. OFCCP is encouraging such submissions with a “non-enforcement policy.” This means that OFCCP will not take enforcement action against contractors that voluntarily submit information if OFCCP determines that the materials are noncompliant.
However, submitters should be aware that the non-enforcement policy has two significant caveats. First, this enforcement discretion only applies if the submission is by one of the contractor’s or subcontractor’s “executives, owners, or legal representatives with actual authority to legally bind the contractor or subcontractor in agreements with the United States Government.” Second, if the contractor or subcontractor does not correct the perceived issue (for example, it might not agree with OFCCP’s determination), OFCCP may take enforcement action against the contractor or subcontractor if the agency later receives the materials through a separate source. OFCCP may obtain the materials through a scheduled audit, in connection with a complaint, or an employee may submit the materials in response to the RFI. Indeed, the RFI simultaneously publicizes OFCCP’s new complaint hotline to report potentially noncompliant workplace training materials.
Moreover, materials submitted in response to the RFI may be subject to public disclosure. OFCCP does not guarantee withholding any materials in response to requests under the Freedom of Information Act (FOIA); these submissions are likely to be the subject of FOIA requests, and may even be the subject of congressional inquiry at some point in the future. Contractors and subcontractors who choose to submit materials should, in any event, be careful not to provide information that is subject to a confidentiality agreement, trade secret, or copyrighted information, or information that contains individual medical information or personally identifiable information.
In sum, while obtaining OFCCP’s “seal of approval” and the benefits of a non-enforcement policy may be enticing, there are some downsides in submitting materials to the agency at this time.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Ami N. Wynne
Terry D. Johnson