DOL Issues Guidance On Federal Contractor Diversity Training

Garrett Wozniak
Garrett Wozniak

On September 22, President Trump issued Executive Order 13950, which states that United States policy is “not to promote race or sex stereotyping of scapegoating.”  The Order prohibits federal contractors from training employees in a manner that promotes race and sex stereotyping or scapegoating.

Last week, the Department of Labor’s Office of Federal Contract Compliance (OFCCP) issued answers to FAQs concerning what E.O. 13950 permits and proscribes.  The FAQs largely mirror the Executive Order, which, though effective September 22, “will apply to contracts entered into 60 days after the date of the executive order—November 21, 2020.”

As defined in the FAQs, “race or sex stereotyping”  means “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to an entire race or sex, or to individuals because of their 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.”  Scapegoating in this context “encompasses any claim that, consciously or unconsciously, and by virtue of their 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.”

Under the Executive Order, it is unlawful for federal contractors to include such stereotyping and scapegoating in a training program.  The Order prohibits contractors from using any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.”

The OFCCP provides the following examples of race/sex stereotyping and scapegoating, namely, training that:

  • one race or sex is inherently superior to another race or sex;
  • an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  • an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  • members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  • an individual’s moral character is necessarily determined by his or her race or sex;
  • an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
  • any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  • meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

The FAQs further explain that “[u]nconscious 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.”  The E.O. does not prohibit training that informs workers or fosters discussion about employee pre-conceptions, opinions, and stereotypes about  others, “which could influence a worker’s conduct or speech and be perceived by others as offensive.”

With respect to federal grants, the E.O. requires the heads of Federal agencies to review grant programs and identify programs for which the agency may require certification from the recipient that the recipient will not use Federal funds to promote the concepts of race or sex stereotyping and scapegoating.  The list of concepts about which a grantee must certify is available here

Federal contractors and grant recipients should review their training programs to assess compliance with the executive order.  Training programs that address discrimination, harassment, and retaliation are not forbidden, however, training that includes race/sex stereotyping and/or scapegoating, or includes modules on unconscious bias, should be reviewed in light of how those terms are defined in the executive order.

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