The agency that monitors whether federal contractors comply with requirements against discrimination in employment is asking employers to provide copies of diversity training materials as part of its push to enforce President Donald Trump’s recent Executive Order (EO) dealing with diversity efforts.
On October 21, the Office of Federal Contract Compliance Programs (OFCCP), the division of the U.S. Department of Labor responsible for ensuring that employers doing business with the federal government comply with nondiscrimination laws, released the Request for Information (RFI), which was published in the Federal Register on October 22.
The announcement of the RFI calls on federal contractors, federal subcontractors, and employees of federal contractors and subcontractors “to provide copies of any training, workshop, or similar programming having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.”
The request follows the September issuance of Executive Order 13950. That order, titled Combating Race and Sex Stereotyping, places limits on the kind of diversity training federal employers and contractors can offer. The order instructs employers to no longer use training that includes what it refers to as “divisive concepts” and what it considers race or sex “scapegoating.”
The OFCCP also announced on October 21 a new website on EO 13950 that includes frequently asked questions and links to hotlines for employees to file complaints about training programs they believe violate the order.
Response to EO ‘Purely Voluntary’
Nita Beecher, an attorney with Fortney & Scott, LLC in Washington, D.C., says she recommends that employers not respond to the RFI since it is “purely voluntary.”
Beecher says the order has created confusion over what types of training are allowed, although some of the recent responses from Craig E. Leen, director of the OFCCP, indicate that diversity, equity, and inclusion (DEI) training including implicit bias and unconscious bias training is legal as long as no race or sex is singled out.
Nevertheless, “employers are very confused and concerned about the idea that employees who are unhappy with training can call and complain to OFCCP,” Beecher says.
The order is drawing criticism from employers concerned that it could have a chilling effect on their DEI efforts, including commitments they made in response to the Black Lives Matter and #MeToo movements.
“Director Leen already sent letters to Microsoft and Wells Fargo questioning their public statements that they were going to increase the number of Blacks in their executive ranks and tie executive compensation to increasing diversity,” Beecher says.
Many companies believe they have made commitments to their employees on improving representation and that those goals will be carried out legally as required by EO 11246 and Title VII of the Civil Rights Act of 1964, Beecher says. EO 11246 is the order signed by President Lyndon B. Johnson in 1965 requiring government contractors to adhere to nondiscriminatory employment practices.
Some Training Programs Put on Hold
In the wake of Executive Order 13950, some employers are changing or putting their diversity training programs on hold while others are proceeding as usual, depending on their tolerance for risk, Beecher says.
“One of the concerns is while Director Leen is saying that most [diversity, equity, and inclusion] training is OK, employers recognize this is being directed from the White House, and it is not clear what they believe is covered by the EO,” she adds.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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