This year, many companies have responded to nationwide protests, recognized the need for fluency in terms like “White Privilege” and “Black Lives Matter,” and expanded their diversity training initiatives. Based on a recent Executive Order, federal contractors who conduct such trainings now will be subjected to increased scrutiny, and some types of diversity training now may be construed as discriminatory. This alert outlines the recommended steps for maintaining an appropriate diversity training program in light of new restrictions.
Federal contractors and all employers should take note.
New Executive Order on Diversity Training
On September 22, 2020, the President issued an Executive Order (“EO”) titled “Combating Race and Sex Stereotyping” that rejects trainings that address concepts such as implicit and unconscious bias, institutional and structural racism, and privileges associated with dominant culture traits (male privilege, white privilege). According to the EO, these types of trainings promote “divisiveness in the workplace” and are “contrary to the fundamental premises underpinning our Republic: that all individuals are created equal and should be allowed to an equal opportunity under the law to pursue happiness and prosper based on individual merit.”
The EO applies to the federal workforce, Uniformed Service, federal contractors, and will have implications for recipients of federal grants. Although the EO has been criticized by businesses and other groups calling for its rescission, and many are quietly awaiting the election results to test the fate of the EO, employers who receive federal grant funding or federal contracts should start reviewing the EO and its impact on any upcoming or potential training, and other obligations under the EO.
Implications for Federal Contractors
The EO requires that all federal government contracts effective after November 21, 2020, include a provision that during the performance of the contract, the contractor shall not use any workplace training that inculcates in its employees “any form of race or sex-stereotyping or any form of race or sex scapegoating[.]” The term “race or sex 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.” The term “race or sex 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 specifically prohibits training on “divisive concepts” that include:
- One race or sex is inherently superior to another race or sex;
- An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
- An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
- Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
- An individual's moral character is necessarily determined by his or her race or sex;
- An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
- Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
- Meritocracy or traits such as a hard work ethic are racist or sexist or were created by a particular race to oppress another race.
The EO directs federal contractors to send to each labor union or representative of workers with which the contractors have a collective bargaining agreement or other contracts, a notice advising the labor union or workers' representative of the contractor's commitments under the EO and to post copies of the notice in conspicuous places available to employees and applicants for employment.
Federal contractors must also include similar provisions in every subcontract or purchase order so that such provisions will be binding on each subcontractor or vendor. In the event the contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
The consequences of non-compliance are significant and include that a government contract may be canceled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further government contracts.
The Department of Labor, through the Office of Federal Contract Compliance Programs (“OFCCP”), is directed to establish a hotline to receive and investigate complaints that a federal contractor is utilizing training programs in violation of the EO.
By October 22, 2020, the OFCCP shall publish in the Federal Register a request for information (“RFI”) seeking information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding diversity and inclusion trainings provided to employees, including a request for copies of the training materials and information about the duration, frequency, and expense of such trainings. The EO does not specify whether a response to the RFI is mandatory.
Future Implications for Recipients of Federal Grants
Stating that it is the policy of the United States not to allow grant funds to be used for these types of trainings, the EO directs the heads of all federal agencies within 60 days of the order to review their respective grant programs and identify programs for which the agency may, as a condition of receiving such a grant, require the recipient to certify that it will not use federal funds to promote the concepts that are prohibited in the order.
Implications for All Employers
The EO also directs the Attorney General to assess whether workplace trainings that include the described “divisive concepts” may contribute to a hostile work environment and give rise to potential liability under Title VII. All employers who are subject to Title VII should be aware that the Department of Justice may view diversity and inclusion trainings as the basis of
a hostile work environment claim, rather than the prevention of such claims. However, an employer will not be shielded from Title VII liability for preventable workplace discrimination on the basis that they discontinued diversity training in response to the EO.
The EO forces employers to be more deliberate about the contents of any diversity training that they implement. In this context, it is increasingly important for employers to retain information about the nature and contents of any training sessions. Employers may wish to retain recordings of any training sessions in case there is a dispute about the message of a particular training session.
What Is Allowed Under the EO?
The EO states that it does not prevent federal contractors “from promoting racial, cultural, or ethnic diversity or inclusiveness, provided such efforts are consistent with the requirements of this order.” The EO specifically states that “[t]raining employees to create an inclusive workplace is appropriate and beneficial.” The EO also provides that nothing in the EO shall be construed to prohibit discussing, as part of a larger course of academic instruction, the “divisive concepts…in an objective manner and without endorsement.”
Employer Next Steps
While it is likely that the EO will be subject to legal challenges, the order is in effect and will start implicating federal contracts entered into after November 21, 2020. Note that there is no provision requiring modification of existing contracts.
Therefore, federal contractors should begin to review the curriculum of its diversity and inclusion trainings to see if any of the content may be subject to the EO. Federal contractors should also begin reviewing their contracts with subcontractors and vendors and make appropriate revisions and make the appropriate notice to labor unions by November 21, 2020.
Employers should take steps to ensure that trainings will be conducted in compliance with the EO (e.g., define the scope of the presentation and manner in which “divisive concepts” may be presented to the audience). If training addresses “divisive concepts,” employers should consider communicating to their employee's pre- and/or post-training in order to affirm that the contents of the training were presented in compliance with relevant EO restrictions. Likewise, employers should be attuned to how any training is received/perceived by all members of their workforce.
Recipients of federal grants should review whether any of the money is being used for trainings of the type prohibited by the EO and look for alternate funding sources and/or curricular modifications to comply with the EO.
All employers should review their training materials, knowing that the Department of Justice has been instructed to view diversity and inclusion training as potential sources of a hostile work environment claim. However, it is advised that employers continue to provide diversity and inclusion trainings that comply with the EO and to provide regular and well-documented trainings that cover harassment, discrimination, and retaliation. Such trainings remain an important and necessary component of employer measures to protect the workforce from the harms of harassment, discrimination, and retaliation and to protect employers from liability.
As always, we are available to assist employers in navigating the EO and any legal implications that stem from it.
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