Enforcement Guidance Highlights the Need to Review Diversity and Inclusion Materials

October 28, 2020 Advisory

As directed by Executive Order 13950 (EO 13950), the Office of Federal Contract Compliance Programs (OFCCP) has published a request for information (RFI) about workplace training and related materials that federal contractors and subcontractors use to train their employees on diversity and inclusion. EO 13950 prohibits federal contractors, subcontractors and grant recipients from delivering workplace training that promotes “divisive concepts” or “stereotyping” or “scapegoating” based on race or sex as defined by EO 13950.

In response to EO 13950, the OFCCP published the RFI to: (1) identify the materials and information that covered employers should disclose to the OFCCP, and (2) announce a limited policy of non-enforcement against employers that make voluntary disclosures to the OFCCP in response to the RFI.

Materials Requested

The OFCCP has requested copies of training, workshops or similar programming materials provided to the employees of federal contractors and subcontractors concerning the topics of diversity and inclusion, as well as information about the duration, frequency and expense of such activities. The RFI invites disclosure of all of the following types of materials: PowerPoints, photographs, videos, handwritten notes, printed handouts, and all forms of media and data that have been used or that are in anticipation of use, in both voluntary and mandatory training.

The RFI seeks materials fitting into any or all of the following categories, if applicable, but notes that an employer need not “provide a response for every category number”:

  1. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping.
     
  2. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex scapegoating.
     
  3. The duration of any workplace training identified in categories 1 or 2.
     
  4. The frequency of any workplace training identified in categories 1 or 2.
     
  5. The expense or costs associated with any workplace training identified in categories 1 or 2.

These category descriptions should provoke a cautious approach for any employer considering disclosure in response to the RFI. Disclosing materials as being responsive to any of these categories may suggest that an employer believes its own training materials “could be reasonably interpreted to promote” the types of “stereotyping” or “scapegoating” prohibited by EO 13950.

Employers that choose to make disclosures in response to the RFI should consider carefully whether submitting responsive materials (including “handwritten notes,” etc.) could result in a privilege waiver or other enforcement action. And, as noted in the RFI, disclosures should not include:

  • trade secrets;
  • materials that are copyrighted;
  • personally identifiable information, including medical information; or
  • information or materials in which disclosure is prohibited by law or the terms of “a valid confidentiality agreement.”

Information Requested

The RFI also requests input on any or all of the following questions, if applicable:

  1. Have there been complaints concerning this workplace training? Have you or other employees been disciplined for complaining or otherwise questioning this workplace training?
     
  2. Who develops your company's diversity training? Is it developed by individuals from your company, or an outside company?
     
  3. Is diversity training mandatory at your company? If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
     
  4. Approximately what portion of your company's annual mandatory training relates to diversity?
     
  5. Approximately what portion of your company's annual optional training relates to diversity?

Notably, different from the plain text of EO 13950, the RFI references that materials of workplace training programs that are voluntary are included in the information that is sought.EO 13950 speaks generally to workplace training that the order describes as seeking to “inculcate” certain viewpoints, a term more apt to be used in connection with mandated instruction or training. The RFI's focus on voluntary programs raises questions about whether enforcement of EO 13950 will reach beyond required workplace training and into less formal diversity and inclusion programs.

Of further note is that there is nothing in EO 13950 or the RFI to provide direction to covered employers as to how enforcement will be reconciled with the rights of employees to engage in protected concerted activity. The National Labor Relations Act (NLRA) has long recognized the rights of employees in the private sector to assemble and discuss the terms and conditions of their employment, which could include discussions centered around perceived problems in the workplace which EO 13950 defines as “divisive.” Absent further direction on how the OFCCP intends to reconcile the competing aims of EO 13950, covered employers should proceed cautiously.

The OFCCP has reiterated text from EO 13950 which recognizes that “[n]othing in th[e] order shall be construed to prohibit discussing, as a part of a larger course of academic instruction, the divisive concepts…in an objective manner and without endorsement.” Further, in guidance published on Oct. 7, 2020, the Department of Labor clarified 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.”  In other communication issued by the Executive Office of the President in a Memorandum to the Heads of Executive Departments and Agencies, on Sept. 28, 2020, the administration identified “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality” and “racial humility” as terms that may indicate "the type of training prohibited by the E.O."

Option for Limited Non-Enforcement

While clarifying that disclosures in response to the RFI are not mandatory and may be made anonymously, the RFI announces the OFCCP’s intention not to bring an enforcement action against covered employers that satisfy all of the following conditions:

  1. voluntarily disclose training materials (submitted by one or more of such employer’s executives, owners or legal representatives with actual authority to legally bind the employer) in response to the RFI;
     
  2. identify themselves in making such disclosures; and
     
  3. “promptly” correct any non-compliant training materials as directed by the OFCCP.

The OFFCP will also offer compliance assistance to the organizations that voluntarily submit training materials in response to the RFI.

It is unclear whether this promise of non-enforcement will induce disclosures by many federal contractors and subcontractors—especially given the qualifiers and reservations that the OFCCP included in announcing its enforcement plans: 

  • the OFCCP reserves the right to take enforcement action if a contractor or subcontractor refuses to correct aspects of the training that the OFCCP identifies as “non-compliant”; and
  • responses to the RFI “may become a matter of public record and may be subject to public disclosure.”

The RFI calls for responsive materials to be submitted to the OFCCP by Dec. 1, 2020. When weighing the option of disclosing materials in response to the RFI, contractors and subcontractors should consider many factors and consult with legal counsel.

Armstrong Teasdale will continue to monitor any developments with respect to challenges related to the new rules and enforcement action. Sign up or update your email preferences to receive legal and event information from Armstrong Teasdale related to this and other timely topics.

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