OFCCP Provides Guidance on Diversity Training Executive Order

On October 7, 2020, OFCCP issued initial guidance regarding President Trump’s recent executive order prohibiting certain diversity-related training by federal contractors (“Executive Order on Combating Race and Sex Stereotyping”).  As we previously reported, under this Executive Order, all government contracts entered into after November 21, 2020 must contain certain provisions related to the prohibition of workplace trainings that encompass “race or sex stereotyping” or “race or sex scapegoating,” and covered contractors are prohibited from implementing such trainings in their workforces.

The guidance contains a few noteworthy clarifications, including the following:

• While the Executive Order’s requirements for federal contractors only apply to contracts entered into after November 21, 2020, OFCCP may investigate claims of race or sex stereotyping pursuant to its existing authority under Executive Order 11246, which prohibits contractors from discriminating against their employees and requires contractors to take affirmative action to prevent such discrimination.
• With respect to unconscious or implicit bias training, it is prohibited only “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.” By contrast, such training can proceed “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 clarifies that the definition of “race or sex scapegoating” includes “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.”
• OFCCP also clarifies that any individual, group, or third party may file a complaint related to race or sex stereotyping and scapegoating. Any complaints based on Executive Order 11246 will be investigated immediately following OFCCPs normal procedures, but the agency will not enforce the new executive order until it becomes effective in federal contracts.

Meanwhile, in a related development, OFCCP has initiated investigations into at least two federal contractors’ employment practices based on their workforce diversity representation goals.  Earlier this year, Microsoft committed to double the number of Black and African American people managers, senior individual contributors and senior leaders in its workforce by 2025.  Similarly, Wells Fargo announced a goal of doubling its Black representation in leadership positions in the next five years.  OFCCP asked both companies to provide information on how they plan to implement their respective commitments without discriminating on the basis of race.  OFCCP’s request to Microsoft is available here.  Both companies have publicly confirmed their diversity-related efforts comply with applicable employment laws—Microsoft’s statement is available here and Wells Fargo provided the following statement to the press: “Wells Fargo is committed to and taking action to become a more diverse and inclusive company.  Numerous efforts are underway to implement changes at all levels of the company, and we are confident that they comply with U.S. employment laws.” We will continue to monitor developments on these issues.