President Trump recently issued “Executive Order on Combating Race and Sex Stereotyping” (Executive Order 13950) — a sweeping federal directive intended “to combat offensive and anti-American race and sex stereotyping and scapegoating” and bar federal contractors from inculcating such views in their diversity and inclusion workplace trainings. As required by Executive Order 13950, the Office of Federal Contract Compliance Programs (OFCCP), on October 21, 2020, published its Request for Information (RFI) in the Federal Register seeking “comments, information, and materials from the public relating to workplace trainings that involve race or sex stereotyping or scapegoating.”
Per the RFI, Executive Order 13950 “notes that materials teaching that men and members of certain races are inherently sexist and racist have recently appeared in workplace diversity trainings across the country” and “invites the public to provide information or materials concerning any workplace trainings of Federal contractors that involve such stereotyping or scapegoating.” In addition to encouraging submissions on or before December 1, 2020, the RFI provides the agency’s hotline contact information and states that “[e]mployees and other concerned members of the public who wish to confidentially report potentially noncompliant information or materials should do so through the hotline information provided” rather than responding to the RFI, which may become a matter of public record and be subject to public disclosure.
Specifically, the RFI invites federal contractors and subcontractors and their employees to submit materials, documents and answers to questions for up to 10 categories, including but not limited to:
- Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping or scapegoating.
- The duration, frequency and expenses associated with said trainings.
- Complaints filed regarding the prohibited training.
In an effort to clarify, the RFI added that “training is not prohibited 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 RFI also requests input on the following questions:
- Have there been complaints concerning this workplace training? Have you or other employees been disciplined for complaining or otherwise questioning this workplace training?
- Who develops your company’s diversity training? Is it developed by individuals from your company, or an outside company?
- Is diversity training mandatory at your company? If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
- Approximately what portion of your company’s annual mandatory training relates to diversity?
- Approximately what portion of your company’s annual optional training relates to diversity?
Responses can include a wide variety of materials, including PowerPoints, photographs, videos, handwritten notes or printed handouts: “OFCCP welcomes all forms of media and data that have in recent years been used, or that may soon be used, in both voluntary and mandatory trainings, workshops, or similar programming.” Although materials may be submitted anonymously, the information may be subject to public disclosure, including any personal information provided. Accordingly, the RFI cautions that no information or materials should be submitted that are prohibited by law from disclosure, including materials or information subject to a confidentiality agreement or copyright, or that contain trade secrets, personally identifiable information or individual medical information.
The RFI invites federal contractors and subcontractors to voluntarily submit information and training materials for the agency to assist in determining whether such materials are compliant with Executive Orders 11246 and 13950. There are no adverse legal consequences to contractors who opt not to participate in the RFI, but the OFCCP states it will not take enforcement action against those who voluntarily respond to the RFI, provided that: (1) the contractor comes into prompt compliance with the Executive Orders as instructed by the agency; and (2) the relevant information is submitted by the contractor’s executives, owners or legal representatives — those who have legal authority to bind the company. In what appears to be an added incentive, the RFI also states the “OFCCP will keep information and materials submitted under this process confidential under Exemption 4 of the Freedom of Information Act to the maximum extent permitted by law, unless disclosure is necessary and appropriate in Federal Government-initiated proceedings.” If the contractor declines to take corrective action after compliance assistance is provided, however, the OFCCP may take enforcement action against the contractor if the information is obtained through a secondary source (e.g., scheduled audit, complaint or employee-submitted information).
Notwithstanding the OFCCP’s assertion that it will not pursue enforcement action if violations of law are immediately corrected, the RFI potentially creates a minefield of liability for government contractors given the vagaries inherent in the Executive Orders, as well as arguable inconsistencies between the Executive Orders and other statutory and regulatory obligations that employee training is meant to address. Furthermore, the RFI could easily be construed as an invitation to prospective whistleblowers and suggests that the government will likely pursue enforcement under the False Claims Act for alleged violations of the Executive Orders.
The OFCCP has also launched a landing page for Executive Order 13950. The landing page includes Frequently Asked Questions (FAQs) (previously summarized here) and information on how to file a complaint alleging violations of the Executive Order. As previously reported, any individual or group, including third parties on behalf of an individual or groups, can file a complaint via email or by phone. The OFCCP stated it will investigate complaints following its standard complaint procedures, which are outlined in the Federal Contract Compliance Manual.
Faegre Drinker will continue to monitor Executive Order 13950 developments.