October 09, 2020

Despite Industry Concern and Questionable Legality, DOL Moves Forward with Efforts to Implement Racial Sensitivity Training Prohibition

6 min

Since our first article reporting on Executive Order 13950, Combating Race and Sex Stereotyping (EO 13950 or the EO), there have been several key developments. First, the hotline for reporting violations of the EO is now open. Second, the Department of Labor, through the Office of Federal Contract Compliance Programs (OFCCP), issued its first set of "guidance."

Hotline and Email Address Officially Open

On September 28, 2020, the Department of Labor, through the OFCCP, issued a News Release announcing its establishment of a "hotline and email address to receive and investigate complaints under existing Executive Order 11246 as well as Executive Order 13950." While the News Release unsurprisingly recites portions of EO 13950 and relays the dates of upcoming deadlines, it also solidifies the Administration's desire to closely link EO 13950 with Executive Order 11246, Equal Employment Opportunity (EO 11246). Significantly, the News Release invites the submission of complaints, where it states that "training programs prohibited by the new Executive Order may also violate a contractor's obligations under the existing Executive Order 11246," immediately after explaining that EO 13950 "enables employees to file complaints." In effect, the OFCCP is already inviting Federal contractors, subcontractors, and their employees to file complaints based on existing gender and race training programs before EO 13950 becomes effective on November 21, 2020, ostensibly under the guise of a putative violation of EO 11246.

Though the OFCCP has not yet published in the Federal Register a Request for Information seeking information from Federal contractors, subcontractors, and their respective employees regarding "the training, workshops, or similar programming provided to employees," as required by EO 13950, the OFCCP's establishment of a hotline and its posting of an email address effectively permit the OFCCP to begin investigating complaints and to start crafting what will likely be a hot list of non-complying Federal contractors and subcontractors for when EO 13950 becomes effective on November 21, 2020. As such, and given the Department of Labor's issuance of its first set of guidance as more fully discussed below, it would be prudent for Federal contractors, subcontractors, and grant recipients to begin reviewing their existing training programs, training materials, and publicly and privately issued statements regarding gender and race bias in the workplace, especially as they concern unconscious and implicit bias.

New Department of Labor "Guidance"

Just over two weeks after the President's issuance of EO 13950, on October 7, 2020, the Department of Labor, through the OFCCP, issued its first set of "guidance" on that Executive Order. Like the OFCCP's News Release, this "guidance"—which is actually a Frequently Asked Questions (FAQ) webpage addressing EO 13950—both recites provisions from EO 13950 in an effort to reinforce the definitions and requirements enumerated therein and ties possible violations of EO 11246 with those of EO 13950. In sum, the FAQ webpage does not explain many of the open questions raised by the EO; however, it does address one significant topic of discussion—implicit and unconscious bias training. Specifically, the guidance includes the following question and answer:

Does Executive Order 13950 prohibit unconscious bias or implicit bias training?

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.

The guidance therefore appears to indicate that, for all intents and purposes, implicit or unconscious bias training is prohibited. While the above answer certainly includes a caveat making discussions on these topics permissible, much like the provision in Section 10 of EO 13950 so provides, where exactly the line is drawn between "foster[ing] discussion[s]" and "teach[ing] or impl[ying] that an individual . . . is racist, sexist, oppressive, or biased, whether consciously or unconsciously" remains unclear. That said, at a recent virtual labor conference, it was reported that Labor Secretary Eugene Scalia indicated that the Department of Labor will issue new guidance to further clarify EO 13950, presumably in addition to the OFCCP's new FAQ "guidance," which Secretary Scalia then stated was forthcoming, and which has since been published.

At that same conference, Secretary Scalia is further reported to have coined the provision in Section 10 as a "savings clause," noting that EO 13950 is meant to eradicate "particular types of training . . . that are highly offensive," such as seminars advising people that telling others to be "color-blind and [to] regard one another as equal is wrong and offensive." Secretary Scalia, the OFCCP, and Craig Leen, who is the head of the OFCCP, do not, however, appear to be on entirely the same page. In an October 2, 2020 article, Bloomberg reported that, during that same conference, Mr. Leen stated that unconscious bias training is "perfectly fine," provided it "teaches that everyone, based on the human condition, has unconscious biases." But it is difficult to conceive how a company can "teach" what Mr. Leen states is appropriate, including discussions or statements based on historical facts related to gender and race, without accidentally running afoul of either Secretary Scalia's example of what not to discuss or the OFCCP's FAQ answer provided above. Thus, it is safe to say that, out of an abundance of caution, this topic of discussion within both Federal contractors and subcontractors' respective companies should be avoided entirely for the foreseeable future, at least until the Department of Labor issues additional guidance, regulations, or orders, or until January 2021, provided Joe Biden wins the Presidential election and subsequently rescinds EO 13950. Otherwise, Federal contractors, subcontractors, and grant recipients that still wish to conduct implicit and unconscious bias-related training better hope that the savings clause in Section 10 of EO 13950 provides as much "saving" as Secretary Scalia suggests; the text of the savings clause is as follows:

Sec. 10. General Provisions. (a) This order does not prevent agencies, the United States Uniformed Services, or contractors from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.

(b) Nothing 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.

Finally, as stated above, the Department of Labor has not yet published in the Federal Register its Request for Information. However, the final question and answer in the OFCCP's new FAQ guidance states that "[t]he Department of Labor is currently drafting the Request for Information to meet the October 22, 2020[] deadline set by Executive Order 13950" and notes that the Request for Information will seek information regarding violations of both EO 11246 and EO 13950, once again suggesting the Administration's desire to wed the two Executive Orders.

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Much remains to be clarified with respect to EO 13950, and even though it has yet to make its way into Federal contracts, subcontracts, and grants, it is clear that Federal contractors, subcontractors, and grant recipients should all take notice of this EO. In this regard, while many companies and organizations see a strong need for and a workforce and society yearning for certain racial sensitivity and bias training, in order to steer clear of the potentially significant consequences of this EO, they should consider reexamining their training programs in the short term until more clarity can be achieved, whether it be through regulatory and/or judicial action, or as a result of the upcoming election.