Q: What do I need to know about conducting workplace diversity and racial sensitivity training in light of Executive Order 13950?
Conscientious employers understand the importance of offering training to their workforces on diversity, equal employment opportunity, and unlawful discrimination and harassment prevention. Many employers are reviewing and refreshing their training programs considering recent social justice activities and the Black Lives Matter movement, and still more have issued related public statements regarding diversity, equity, and inclusion. But some of these employers (federal contractors) were thrown for a loop when President Trump issued Executive Order 13950 on September 22, titled “Combating Race and Sex Stereotyping.”
The executive order, which seeks to “combat offensive and anti-American race and sex stereotyping and scapegoating” and end so-called “divisive concepts” promulgated in workplace employee trainings, prohibits certain covered government contractors from conducting diversity and inclusion trainings that cover topics suggesting people of a certain race or gender are “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”
The order applies to all contractors and subcontractors covered by Executive Order 11246 and over whom Office of Federal Contract Compliance Programs (OFCCP) has jurisdiction. It does not define or limit the term “contractor.” Thus, it appears that the new training requirements apply to all employees of a covered contractor, not only those in the division that transacts business with the federal government.
Many questions remain about the executive order’s implications, including whether it will survive legal challenges or the upcoming presidential election. For the time being, however, Executive Order 13950 is in effect, and the OFCCP has confirmed that its requirements for federal contractors and subcontractors will apply to contracts entered into on or after November 21, 2020.
What Exactly Does Executive Order 13950 Prohibit?
FAQs published by the OFCCP on October 7 indicate that Executive Order 13950 defines race or sex stereotyping to mean “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to an entire race or sex, or to individuals because of their race or sex,” and race or sex scapegoating to mean “assigning fault, blame, or bias to a race or sex, or to members of a race or sex, because of their race or sex. It encompasses any claim that, consciously or unconsciously, and by virtue of their race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”
Of note, the OFCCP indicated that this means unconscious or implicit bias training, which has become popular with many employers as a method to promote diversity and inclusion, is prohibited by the executive order “to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.”
However, many employers will be relieved to learn that the OFCCP does not prohibit such training “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.”
DOL Engages in Related Enforcement Efforts
Why should covered employers pay attention? The OFCCP indicated that although the training requirements do not go into effect until November 21, it may investigate claims of sex and race stereotyping “pursuant to its existing authority under Executive Order 11246,” which requires contractors and subcontractors to treat employees without regard to their race or sex, among other protected bases. It has also set up an active “hotline” to begin collecting complaints about purportedly unlawful training sessions.
And true to its word, right on the heels of the executive order, the DOL initiated investigations on a related topic — plans by two prominent federal contract employers to hire more African American employees into management positions. Both companies made similar pledges in June to double the number of African American employees in management and leadership positions over the next five years. The OFCCP contacted each company by letter in late September, implying that such employment actions, if taken on the basis of race, would constitute unlawful discrimination in violation of Title VII of the Civil Rights Act (Title VII).
The probes serve as a good reminder for all contractors to review and confirm their hiring practices simultaneously while they review and update their diversity and inclusion training materials.
What About Employers That Are Not Federal Contractors?
Many employers value a diverse workforce and strive to increase diversity in the workplace. But, as employers know, Title VII prohibits all employers from making employment decisions based on an applicant’s or employee’s protected status. While a full review of effective anti-discrimination and harassment training is beyond the scope of this blog post, even those employers not subject to the new executive order should take this opportunity to review their training, recruiting, and hiring best practices.
One thing non-federal contractor employers should remember is that affirmative action plans generally are lawful only when required of federal contractors by Executive Order 11246 (or in very limited circumstances to correct a historical imbalance or disparity in the workforce). Employers also should bear in mind that, while generally speaking about diversity using broad, aspirational terms is lawful and not considered evidence of unlawful discriminatory intent or motive, comments regarding specific measures to fill a certain position or statements favoring some candidates based on minority status alone could risk a finding of discrimination.
Whether your company is a federal contractor or not, finding the right balance on diversity and inclusion training and initiatives can be tricky. Employers should consult with a Troutman Pepper Employment law attorney or Troutman Pepper diversity, equity, and inclusion professional to help ensure their efforts comply with applicable authority.