The Office of Federal Contract Compliance Programs' (OFCCP) anticipated Request for Information (RFI) is officially out. Tracking our previous articles and webinar on Executive Order 13950, Combating Race and Sex Stereotyping (EO 13950 or the EO), which follows the announcement of the EO and the hotline and initial "guidance," this article focuses on the import and areas of uncertainty that still linger in the wake of the RFI. Upon reviewing the RFI, which welcomes the submission of information and materials from Federal contractors, subcontractors, and their employees, a question that comes to mind is, does this RFI really provide a friendly and safe compliance review process? Or does responding to this RFI open Pandora's box, by essentially asking Federal contractors and subcontractors to offer up on a silver platter certain information and materials on their diversity and inclusion efforts that could later expose them to a dispute, which could subsequently lead to an investigation, termination of their contract, or possible suspension or debarment? Given the current absence of more thorough guidance and regulations from the Department of Labor (DOL), and weighing contractor privacy considerations, we think it is a safer bet to err on the side of caution by not voluntarily disclosing this sensitive internal information; instead, we advise focusing on an internal review of your company's diversity efforts for compliance with the EO, at least for now.
RFI Published in the Federal Register
On October 22, 2020, the DOL's OFCCP published in the Federal Register the RFI, seeking "comments, information, and materials from the public relating to workplace trainings that involve race or sex stereotyping or scapegoating." Those materials can include, but are not limited to, "PowerPoints, photographs, videos, handwritten notes, or printed handouts." The information requested ostensibly extends to materials from brownbag lunches, diversity committee mission statements, webinars, and meetings, and "voluntary and mandatory trainings, workshops, or similar programming." The deadline to respond is December 1, 2020, by which time OFCCP Director Craig Leen indicated his hope "for a very significant response," as reported by Law360, for the purpose of "develop[ing] useful compliance assistance materials and effective enforcement programs, with the important objective of eliminating race and sex stereotyping and scapegoating," per a DOL news release. To date, the RFI has received thousands of "[p]age views" and a smattering of public comments.
There are several areas of note in the RFI. The first is that the RFI provides a concrete, published example of what constitutes impermissible scapegoating or stereotyping, which 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.'"
Thus, in addition to avoiding training and discussions on implicit and unconscious bias, as previously discussed in our last article, Federal contractors, subcontractors, and grant recipients should also avoid training and discussions regarding white privilege. That the EO is focused on concepts specifically related to male white privilege is highlighted in the RFI, where it states that "[t]he order notes that materials teaching that men and members of certain races are inherently sexist and racist have recently appeared in workplace diversity trainings across the country" (emphasis added). These contemplations were first set forth in the EO, where it likewise focuses on concerns related to "[i]nstructors and materials teaching that men and members of certain races . . . are inherently racist and sexist."
Second, to facilitate the submission of materials, the RFI provided a list of ten "categories" of information and materials that Federal contractors, subcontractors, their employees, and the public may submit to the OFCCP either through the hotline or in response to the RFI via electronic comment or mail. These categories seek, among other materials, information on the who, what, when, and where a Federal contractor or subcontractor creates, promotes, or conducts diversity trainings. Notably, the RFI requests expense information associated with trainings as well as the identification of the individual(s) responsible for developing diversity trainings. Additionally, the RFI requests information and materials regarding "complaints concerning this workplace training," including whether the individual responding to the RFI "or other employees [have] been disciplined for complaining or otherwise questioning this workplace training."
Finally, the RFI again unequivocally affirms the strong tie between the EO and Executive Order 11246, Equal Employment Opportunity, where, after explaining the background of Executive Order 11246, the RFI explains how "[r]elatedly, on September 22, 2020, President Donald J. Trump signed Executive Order 13950" for the purpose of establishing the Administration's policy not to promote race or sex stereotyping or scapegoating. This conforms with the DOL's news release, in which it stated that the "OFCCP will investigate complaints following its normal complaint procedures, as detailed in the Federal Contract Compliance Manual." Thus, many investigations based on alleged violations of the EO will very likely be tied to investigations of possible violations of Executive Order 11246 as well, which is significant given that DOL's ability to institute investigations into the latter are already permitted.
Interestingly, Section IV of the RFI, Voluntary Compliance for Employers, outlines how Federal contractors and subcontractors that are "questioning whether their workplace trainings, workshops, or similar programs" are compliant with either the EO or Executive Order 11246 can voluntarily submit information and materials in response to the RFI for OFCCP review. Specifically, the RFI explains that the "OFCCP will provide compliance assistance as requested," but that it will only do so if the request is received "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."
On its face, this generous offer seems just that—a friendly offer to help contractors and subcontractors navigate the murky waters surrounding the EO in the absence of any other clarifying DOL guidance or regulations. However, given the practical implications—and the fact that the OFCCP explicitly requires that the submission come from a legal representative with actual authority—a company should think twice before voluntarily submitting materials. We make this suggestion because the OFCCP pointedly "reserves the right to take enforcement action" if the contractor or subcontractor disagrees with the OFCCP's compliance assessment. Given the great degree of deference accorded to agencies in the event of litigation, this scenario presents a difficult bargaining position for the contractor or subcontractor at the onset.
The RFI additionally fails to specify when the OFCCP would institute enforcement action in the event of a disagreement, though it would presumably occur on or after November 21, 2020. It also fails to identify the precise number of days a company has to come into compliance after one or more issues are identified during a voluntary review. Though a reasonable period of time is presumed, not knowing how long a company has to potentially overhaul its diversity training and related internal materials could be a costly endeavor, depending on the number of putative violations, in terms of both the company's time and its financial resources. Another troubling consideration is that any information and materials submitted in response to the RFI, and not through the hotline, are fair game in a government FOIA disclosure. This creates the possibility that a company's diversity and inclusion efforts, materials, and specific information, per the ten enumerated categories, could be subject to full public disclosure, which is confirmed where the RFI includes a disclaimer that "any materials submitted in response to this request for information may be subject to public disclosure, including any personal information provided." Thus, it seems that one of the few real benefits in voluntarily submitting information and materials is for the company to get ahead of an employee submitting such information and materials, as any such submission—or hotline call or email—can result in a potential investigation under the RFI. That said, if an employee does not submit a company's information or materials through the hotline, such information is still potentially subject to public disclosure.
One final consideration that Federal contractors and subcontractors should keep in mind before voluntarily submitting materials is that, irrespective of whether the Federal contractor or subcontractor has to comply with the EO in the future, their indignation in not wishing or not agreeing to comply after a voluntary review could be construed by the Government and a suspension and debarment official as evidence of non‑responsibility. Such a determination could create issues later down the road, even in a future scenario where the EO has been fully rescinded or significantly curtailed.
Section III of the RFI highlights the OFCCP's already-open hotline for reporting "potentially non-compliant workplace training materials" that violate either the EO or Executive Order 11246. The RFI elucidates some of the legal differences between responding to the RFI in a traditional sense versus providing information and materials through the hotline. Specifically, the RFI carves out the following confidentiality protections for those individuals who respond through the hotline, as opposed to electronic comments or mail responding to the RFI:
To the fullest extent permissible by law, OFCCP will protect the confidentiality of those who submit information through the hotline.
Unlike hotline communications, responses to this request for information may become a matter of public record and may be subject to public disclosure as described above. Employees and other concerned members of the public who wish to confidentially report potentially non-compliant information or materials should do so through the hotline information provided above.
In effect, the RFI provides individuals who report possible violations through the hotline with whistleblower-like protections. Interestingly, these same protection provisions—whistleblower and avoiding public disclosure of information and materials—do not appear to apply to companies that respond to the RFI via electronic comment or mail.
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Though the RFI certainly sheds some light on some of the ambiguities surrounding the EO, while suggesting that guidance is forthcoming, much still remains uncertain, including with regard to Federal grant recipients. Though the RFI does not mention Federal grants, it is possible that a combination of analysis from responses to the RFI and the official reports from the agency head evaluations, which are due on or before November 21, 2020, will begin to frame the sphere of grant programs that will be covered. One thing does, however, remain certain—come November 21, 2020, Federal contractors and subcontractors should expect the inclusion of the EO in their contracts, subcontracts, and purchase orders, and they will be expected to fully comply with the EO. As we have mentioned before, the exercise of an option, a contract renewal, or a bridge contract can arguably constitute that triggering event, but these possibilities remain to be seen. Nevertheless, while Federal contractors, subcontractors, and grant recipients should carefully weigh whether to allow the OFCCP to review their training materials in advance of any such effective period, in the interim they should certainly review those materials and related information themselves to better understand how and whether those materials relate to or possibly violate the requirements of the EO.