As previously reported, the OFCCP is currently grappling with how to implement Executive Order (E.O.) 13950 entitled, “Combatting Race and Sex Stereotyping.”
The agency quickly set up a hotline for employees and the general public to submit complaints regarding workplace training that “promotes” race or sex stereotyping or scapegoating, and announced that the OFCCP can investigate such complaints and pursue remedies through existing authority under E.O. 11246 (which largely mirrors Title VII of the Civil Rights Act). This has prompted many federal contractor employers to effectively suspend all diversity training for the foreseeable future.
E.O. 13950 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.”
Much speculation has been flying about regarding the practical implementation of this provision. As BCGi noted, this is an “information collection” subject to the Paperwork Reduction Act that requires the OFCCP to obtain approval from the White House Office of Management and Budget (OMB) through a process that includes public notice of a proposal followed by an opportunity for public comment. And, sure enough, the agency will publish just such a notice in tomorrow’s Federal Register.
The wording of the E.O. implies that the OFCCP is required to collect information regarding all diversity training programs to review for potential violations. However, the agency has interpreted the E.O. slightly differently, and in a way that the federal contracting community is more likely to accept.
Information Collection Request
Rather than require all federal contractors and subcontractors to submit all training materials for presentations that might be impacted by the E.O., the OFCCP is allowing contractors to voluntarily submit materials that they suspect might be violative if they so choose. If a contractor submits materials that are found to violate the new E.O., they will be given an opportunity to “cure” these materials after receiving compliance assistance from the OFCCP.
Most importantly, the OFCCP has committed to exercising the agency’s enforcement discretion and will not pursue enforcement action against contractors who submit materials found to be in violation so long as the contractor “promptly” comes into compliance. This is true even if the agency receives the same (or substantially the same) materials from another source, such as a formal complaint or a hotline tip.
The agency’s notice expressly states that there will be “no adverse legal consequences for choosing not to participate in this request for information.”
The OFCCP’s approach to implementing this particular provision of E.O. 13950 should allow federal contractor employers some measure of relief.
The voluntary nature of the information request means that the “burden” of the requirement is entirely dependent on whether and to what extent any particular contractor believes their diversity training materials are in need of review. Contractors that are confident their materials do not violate the prohibitions in the E.O. are not required to submit anything to the OFCCP and will not be “punished” for making that choice.
It also provides federal contractors with a way to “get ahead” of potential complaints regarding the content of their diversity trainings. If an employee complains internally, or the contractor is concerned that an employee might lodge a complaint externally, that employer can effectively “get a ruling” from the OFCCP and enjoy a safe harbor while doing so. If the materials are found to violate the E.O., the agency will consult with the contractor regarding necessary changes to the materials or other actions required to come into compliance.
Just as importantly, if the agency does not find any issues with a contractor’s training materials, that should work as a pseudo approval or certification, effectively insulating the company against future complaints regarding those materials under the laws and regulations enforced by the OFCCP, provided that they were not materially altered after the agency’s review.
An OFCCP Stamp of Approval?
The information request is limited to federal contractors, subcontractors, and their employees. To the extent that an organization that provides diversity training fits the bill, nothing would prevent them from submitting the materials used in their commercially offered trainings to the OFCCP for approval, effectively potentially earning an agency “seal of approval.”
To say that is unique would be an understatement of gigantic proportions. As a federal law enforcement agency, the OFCCP has historically steadfastly avoided “approving” commercial products and services, and it is unlikely that the agency intends to start doing so now. In order to “opt for” the safe harbor described in the notice, the OFCCP is quite clear that it is the federal contractor employer who must submit materials to the agency for review.
So, for example, assume Company A, a diversity training provider, submits materials to the OFCCP and the agency does not find any violations of the E.O., then sells that “approved” training to Company B. If a Company B employee then subsequently complains to the OFCCP and, on re-examination the agency does find that the materials (or the way they were used) violate the E.O., there is no safe harbor from enforcement for Company B.
The OFCCP is soliciting public comment on the proposed information collection and all are invited to participate. Comments are due on or before Tuesday, December 1, 2020. Comments can be submitted a variety of ways, the easiest being the online “eRulemaking portal” at www.regulations.gov.