OFCCP Releases Request for Information Regarding Federal Contractor Diversity Training

On October 21, 2020, OFCCP released a highly anticipated Request for Information (“RFI”) seeking information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding diversity-related training, workshops, or similar programming provided to employees. This RFI follows President Trump’s recent Executive Order on Combating Race and Sex Stereotyping (“Executive Order”), which purportedly prohibits federal contractors from promoting race or sex stereotyping or scapegoating through workplace training (see prior blogs on this subject here and here).

OFCCP’s RFI seeks information and materials concerning the following categories:

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.

OFCCP additionally requests input on the following questions:

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

Importantly, responding to this RFI is voluntary for contractors. OFCCP expressly states that “there are no adverse legal consequences for choosing not to participate in this request for information.” Additionally, OFCCP states that it will keep any information and materials submitted under the RFI confidential “to the maximum extent permitted by law, unless disclosure is necessary and appropriate in Federal Government-initiated proceedings.”

In an apparent attempt to encourage contractors to submit information in response to the RFI, OFCCP states that it will not take enforcement action against federal contractors and subcontractors who voluntarily submit information that OFCCP deems to be non-compliant, but only if the contractor or subcontractor “promptly comes into compliance with the Executive Orders as directed by OFCCP.” If, however, a contractor submits information or materials OFCCP deems to be non-compliant and declines to “correct the issue” (as determined by OFCCP), OFCCP explains it may take enforcement action against the contractor or subcontractor if OFCCP later receives the contractor or subcontractor’s materials through a separate source, such as a neutrally scheduled audit, in connection with a complaint, or if submitted by an employee in response to this RFI.

The process described immediately above applies only in cases where the materials are submitted to OFCCP “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.”  The RFI is silent on the procedures that will govern if an employee of a contractor or subcontractor submits information OFCCP deems non-compliant, but the same information is not submitted by the contractor or sub-contractor itself.

Materials may be submitted anonymously, but OFCCP reminds potential submitters that they “should not provide information or materials prohibited by law from disclosure under a valid confidentiality agreement, information or materials that are trade secrets, information or materials that are copyrighted, or information or materials that contain individual medical information or personally identifiable information.”

Given the broad framework and subjective nature of the “divisive concepts” listed in the Executive Order, contractors have reason to be concerned that employees who disagree with certain training topics or material may report their employers to OFCCP.  Indeed, the Executive Order already is facing pushback from the business community on the basis that it is having a “chilling effect” on diversity-related trainings. For example, the U.S. Chamber of Commerce and a coalition of business groups and trade associations sent a letter to President Trump urging him to withdraw the recent Executive Order. The coalition believes that “the E.O. will create confusion and uncertainty, lead to non-meritorious investigations, and hinder the ability of employers to implement critical programs to promote diversity and combat discrimination in the workplace.” Reporting that some contractors are suspending diversity-related training given the Executive Order’s “lack of clear guidance” and threat of debarment, the coalition noted that the Executive Order is “already having a broadly chilling effect on legitimate and valuable D&I training companies use to foster inclusive workplaces, help with talent recruitment, and remain competitive in a country with a wide range of different cultures.”

OFCCP also created a landing page containing information for federal contractors, federal subcontractors and their employees to learn about the Executive Order. We will continue to monitor developments on these issues and will report them here.  Stay tuned.