UPDATE December 2020:

From OFCCP:  On December 22, 2020, the United States District Court for the Northern District of California issued a preliminary injunction prohibiting OFCCP from implementing, enforcing, or effectuating Section 4 of Executive Order 13950 “in any manner against any recipient of federal funding by way of contract [or] subcontract….” This preliminary injunction took effect immediately. For a more detailed notice regarding OFCCP’s compliance with this court order, click HERE.

UPDATE November 2020

On November 20, 2020, the Department of Defense published a memo and provided a new required clause for its contractors. The notice is deemed a “class deviation” which will remain “in effect until it is incorporated in the FAR or otherwise rescinded.” As a reminder, President Trump issued an executive order which created clauses that are now required to be in federal contracts. In these clauses, is also the requirement for contractors to give notice of the contractor’s new commitments to labor unions and workers’ representatives with whom they contract. These new commitments in must be posted in “conspicuous places available to employees and applicants for employment.” The Department of Defense memo instructs contractors to amend solicitations prior to November 20, 2020 to include the notice. Be sure to keep an eye out for the new required provisions and include them in any covered subcontracts moving forward.

UPDATE 10/09/2020

In response to the recently announced Executive Order Combating Race and Gender Stereotyping (Executive Order 13950) OFCCP has published a list of Frequently Asked Questions (FAQs) to help clarify the policy.

Albeit brief, the FAQs reiterate that while the Order does not outright ban unconscious bias training, any training that “teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased” shall be prohibited.

Highlights from the FAQs sheet include:

  • When Executive Order 13950 will become effective
  • The definition of race or sex stereotyping
  • The definition of race or sex scapegoating
  • Examples of both race or sex stereotyping or scapegoating
  • How to file an alleged complaint against an employer
  • How such filed complaints will be handled

Additionally, OFCCP stresses that while the Executive Order does not become effective until after November 21, 2020, complaints of unlawful stereotyping can be submitted immediately to the organization’s newly created hotline that is currently active.

HudsonMann will continue to provide updates as more information becomes available.

President Trump issued an Executive Order (EO) “on Combating Race and Sex Stereotyping” on September 22, 2020.  The EO stems from the belief that “instructors and materials teaching that men and members of certain races, as well as our most venerable institutions, are inherently sexist and racist are appearing in workplace diversity trainings across the country.”  As such, the EO mandates that contractors and grant recipients may not use any workplace training that “inculcates in its employees” any form of race or sex stereotyping or any form of race or sex “scapegoating.”

The EO appears to cover all federal contractors, subcontractors and certain grant recipients and will require contracting agencies to use a contract clause in contracts entered into 60 days from September 22, 2020 addressing race and sex stereotyping.  This clause should presumably, only impact new contracts based on the language of the EO.

The EO does not include any provisions to issue regulations in order to implement its requirements.  However, the Office of Federal Contract Compliance Programs (OFCCP) was chosen as the agency responsible for enforcing the EO.  OFCCP is required to request information from federal contractors and subcontractors within 30 days of September 22 regarding training, workshops, etc. provided to employees as well as the training materials and data on the expense, frequency and duration of training.  Currently there is no information or instruction pertaining to what OFCCP is required to do with submissions it receives.  However, the EO states that violators can be subject to contract suspension or termination as well as debarment.

The EO also requires all federal agency heads to review their grant programs and identify those that the agency determines as a condition of receiving grant monies, that the recipient certify that it will not use federal funds to promote concepts identified in the EO as being prohibited.  These will be reported to the Director of the Office of Management and Budget (OMB) within 60 days of September 22, 2020.

Concepts prohibited by the EO include:

  • 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 hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

Diversity and inclusion, sexual harassment and other related EEO training provided to employees of federal contractors and grant recipients could be severely limited or curtailed based on these provisions of the EO.  Significant modifications to the content of these training programs may be required if the EO is fully implemented.  Additionally, some of these training types in their current form are, or may be, required by other federal or state requirements posing a conflict for contractors, subcontractors and grant recipients.

HudsonMann will provide additional updates as they become available as the EO is expected to receive challenges.

Update:  OFCCP Creates Race and Gender Stereotyping Hotline

The OFCCP created a hotline to receive complaints of unlawful stereotyping in accordance with the “Executive Order Combating Race and Sex Stereotyping” issued on September 22, 2020 by President Trump.  The hotline can be reached at (202) 343-2008 or by emailing OFCCPComplaintHotline@dol.gov.

OFCCP stated in its press release that any training by a contractor that violates the EO also violates the contractor’s current obligations under EO 11246.  The agency specifically states “While the order is effective immediately, its specific requirements for Federal contractors apply only to those with Federal contracts entered into 60 days after the date of the order, or Nov. 21, 2020.  However, training programs prohibited by the new Executive Order may also violate a contractor’s obligations under the existing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.”

The hotline and email are currently active for employees to file a complaint even though the EO doesn’t go into effect for federal contractors unless or until they enter into a new contract after November 21, 2020.  In addition to the hotline, employees may also file a complaint regarding training programs they believe to be in violation at: https://www.dol.gov/agencies/ofccp/contact/file-complaint

We recommend that contractors evaluate their existing training materials to ensure compliance with the new EO considering that employees can file complaints and OFCCP can investigate violations immediately, despite the EO not being effective until November 21, 2020.