The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has published new guidance in the form of “frequently asked questions” (FAQs) regarding the recent Executive Order (E.O.) 13950, “Combating Race and Sex Stereotyping.” The guidance is sparse and does not contain any new information not found in the E.O. itself but does clarify a few important things. In particular, we detail the agency’s clarification of the impact on unconscious bias training, what the effective date does and does not mean, and some more detail regarding the attendant “information collection.”
Unconscious Bias Training Not Prohibited
The FAQs note that the concept of unconscious bias is not prohibited by the E.O. altogether. Rather, it is only prohibited to the extent that the training expressly states or implies that unconscious bias is a “problem” or “issue” only for people of a particular sex or race/ethnicity. To the extent that the training materials address unconscious bias, they should be explicit that the concept applies to all people, regardless of those characteristics.
Contractors will want to review their training materials to ensure that unconscious bias, and any other concept, is balanced and does not single out any particular group(s) for finger-pointing. Pay particular attention to any illustrative examples where the sex and/or race/ethnicity of the “characters” in the example are made explicit. Ideally, these examples will reinforce the notion that unconscious bias is an issue that crosses traditionally expected sex and race/ethnicity boundaries.
Effective Date Somewhat Irrelevant
The FAQs also note that the E.O. was effective on the date it was signed on September 22, 2020. Federal contracting agencies are not required to include a new contract provision explicitly invoking the E.O. until November 21, 2020 and normally that would mean the OFCCP could not enforce the E.O.’s provisions unless and until a federal contractor either enters into a new contract or renews an existing one on or after that date.
However, the FAQs point out that the OFCCP has existing authority to enforce E.O. 11246 which prohibits discrimination on the basis of sex and race/ethnicity (along with religion and national origin, in line with Title VII). So to the extent that an existing contractor provides training that can be viewed as discriminatory based on sex and/or race ethnicity, the OFCCP does not need the new E.O. to cite the contractor for a violation and pursue appropriate remedies.
So what does this mean? While the agency cannot cite contractors for violating the specific provisions of the new E.O. without a qualifying contract entered into on or after November 21, 2020, the OFCCP can still investigate complaints under its existing non-discrimination framework.
Note that the OFCCP’s “hotline” for reporting potential violations is live now, and the FAQs commit the agency to investigating all complaints “immediately.” As a result, many organizations are suspending diversity training for the time being while their organizations review materials for compliance with the new E.O.
What the Effective Date Does Mean
The November 21, 2020 effective date still has some meaning, though. On and after that date contractors will be required to provide union representatives with notice of the organization’s obligations under the new E.O. and begin including the four-paragraph contract clause from the E.O. in qualifying federal subcontracts on a going-forward basis.
Note that the E.O. requires federal contracting agencies to provide contractors with the required union notice. It is far more likely that the OFCCP will develop and publish a suitable notice and it is unclear what the deadline will be for contractors to put those notices in the hands of their unions.
Note also that the E.O. does not provide for incorporating the new contract clause “by reference” as is typically done for the existing EO Clause requirements under E.O. 11246, Section 503, and VEVRAA. It is possible, though unlikely, that the OFCCP will issue guidance allowing for and detailing how to include the new contract clause by reference to the new E.O. It is more likely, however, that the agency will require contractors to include the clause verbatim unless and until the clause is formally integrated into the OFCCP’s regulations implementing E.O. 11246. But until such guidance is issued, this is purely speculative.
Finally, note that after the effective date, the “bar” for violations is essentially lowered. If and when the agency reviews a contractor’s training materials under the existing non-discrimination framework, exactly what does and does not constitute a violation here is much less clear and the burden of proof is relatively high. After the effective date, and assuming a contractor holds a qualifying contract, the contractor can be cited for a violation without the training materials necessarily constituting illegal discrimination.
The Information Collection
The new E.O. also requires the OFCCP to publish a notice in the Federal Register no later than October 22, 2020 “seeking information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees.” The FAQs note that the agency is currently racing to meet that short deadline.
However, it is unclear exactly how the agency intends to proceed. The information collection envisioned by the E.O. would appear to be subject to the requirements of the Paperwork Reduction Act. That would normally require the OFCCP to seek and obtain approval from the White House Office of Management and Budget (OMB) for any standardized information collection the agency intends to use for ten or more “persons.”
This process normally involves publication of a notice in the Federal Register of the proposed information collection and an opportunity for public comment regarding the merits of the proposal, followed by another notice once the request for approval is received by OMB, typically with another opportunity for public comment regarding the burdens the collection would impose. Only after OMB approves the proposal could the agency then collect the information. Most agencies typically estimate the process to take between 6-9 months. While there are provisions that allow for “fast-tracking” some information collection requests, it is unclear if any apply here.
Again, this is speculative, but presumably the OFCCP interprets the E.O. to require the agency to take the first step in the OMB approval process by the October 22 deadline, not issue the actual information collection request directly to federal contractors. If that is the case, it would take a Herculean effort for the agency to clear the PRA approval process and actually demand information from contractors before the end of 2020.
Looking Ahead
This is an evolving situation and BCGi will continue to monitor and bring you important developments.