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.

Contact Us
  • Worldwide
  • Boston, MA
  • Denver, CO
  • Dublin, Ireland
  • Edwardsville, IL
  • Jefferson City, MO
  • Kansas City, MO
  • Las Vegas, NV
  • London, England
  • Miami, FL
  • New York, NY
  • Orange County, CA
  • Philadelphia, PA
  • Princeton, NJ
  • Salt Lake City, UT
  • St. Louis, MO
  • Washington, D.C.
  • Wilmington, DE
abstract image of world map
Boston, MA
800 Boylston St.
30th Floor
Boston, MA 02199
Google Maps
Boston, Massachusetts
Denver, CO
4643 S. Ulster St.
Suite 800
Denver, CO 80237
Google Maps
Denver, Colorado
Dublin, Ireland
Fitzwilliam Hall, Fitzwilliam Place
Dublin 2, Ireland
Google Maps
Edwardsville, IL
115 N. Second St.
Edwardsville, IL 62025
Google Maps
Edwardsville, Illinois
Jefferson City, MO
101 E. High St.
First Floor
Jefferson City, MO 65101
Google Maps
Jefferson City, Missouri
Kansas City, MO
2345 Grand Blvd.
Suite 1500
Kansas City, MO 64108
Google Maps
Kansas City, Missouri
Las Vegas, NV
7160 Rafael Rivera Way
Suite 320
Las Vegas, NV 89113
Google Maps
Las Vegas, Nevada
London, England
Royal College of Surgeons of England
38-43 Lincoln’s Inn Fields
London, WC2A 3PE
Google Maps
Miami, FL
355 Alhambra Circle
Suite 1250
Coral Gables, FL 33134
Google Maps
Photo of Miami, Florida
New York, NY
7 Times Square, 44th Floor
New York, NY 10036
Google Maps
New York City skyline
Orange County, CA
19800 MacArthur Boulevard
Suite 300
Irvine, CA 92612
Google Maps
Philadelphia, PA
2005 Market Street
29th Floor, One Commerce Square
Philadelphia, PA 19103
Google Maps
Philadelphia, Pennsylvania
Princeton, NJ
100 Overlook Center
Second Floor
Princeton, NJ 08540
Google Maps
Princeton, New Jersey
Salt Lake City, UT
222 South Main St.
Suite 1830
Salt Lake City, UT 84101
Google Maps
Salt Lake City, Utah
St. Louis, MO
7700 Forsyth Blvd.
Suite 1800
St. Louis, MO 63105
Google Maps
St. Louis, Missouri
Washington, D.C.
1050 Connecticut Avenue NW
Suite 500
Washington, DC 20036
Google Maps
Photo of Washington, D.C. with the Capitol in the foreground and Washington Monument in the background.
Wilmington, DE
1007 North Market Street
Wilmington, DE 19801
Google Maps
Wilmington, Delaware