Bias Training Limitations
Executive Order 13950 (September 22, 2020) prohibits contractors from presenting “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating.” In this case “stereotyping” is defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex,” and “scapegoating” is defined as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex because of their race or sex.” The EO lists examples of ideas which would be considered as stereotyping or scapegoating, including that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.” The EO resulted from multiple federal agencies providing various employee (diversity and inclusion) training which ostensibly promoted some or all of the ideas listed in the EO which might be contrary to or act against Title VII or EO 11246. The EO requires the OFCCP to: establish a hotline for contractor employees to report a violation of the EO, or a violation of EO 11246, and to request information from contractors and contractor employees about any such training they have or do provide relating to diversity and inclusion (duration, frequency and cost). The EO requires contractors to: provide an employee and union notice (similar to EO 11246) regarding its obligations under the EO, and to include a contract clause (from language in the EO) in subcontracts. The EO will apply to all new contracts / subcontracts which are subject to EO 11246. The EO does not amend EO 11246 and does not explicitly require the OFCCP to promulgate regulations for it. On September 29, 2020 the OFCCP announced the contact information to report violations of the EO. On December 22, 2020, a federal district court entered a preliminary injunction against the government from enforcing the EO, meaning the requirements of the EO no longer apply. That injunction might become permanent or the EO itself might be revoked. However, the OFCCP in its FAQ for the EO stated that the conduct prohibited by the EO (e.g., stereotyping) can also be construed to violate EO 11246. The OFCCP published an announcement regarding the injunction which states that it will no longer enforce the contract clause, take complaints for violations, discontinue the hotline, and not publish additional guidance about the EO - though the FAQ previously published (which points out that the conduct prohibited by the EO might also violate EO 11246) remains on the OFCCP website.