By Chuck White, Vice President of Regulatory Affairs
On September 22, 2020, President Trump issued Executive Order 13950, “Combating Race and Sex Stereotyping.” The Executive Order sets forth the policy of the United States “not to promote race or sex stereotyping or scapegoating” and prohibits federal contractors from inculcating such views in their employees in workplace diversity and inclusion trainings. The U.S. Department of Labor has issued additional Guidance to assist in implementation.
The executive order became effective immediately when signed on September 22, 2020, but the requirements for federal contractors and subcontractors will apply to contracts entered into 60 days after the date of the executive order—November 21, 2020. Even so, the Office of Federal Contract Compliance Programs (OFCCP) 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, and requires contractors to take affirmative action to ensure such discrimination does not occur.
As defined in Executive Order 13950, race or sex stereotyping means 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. Race or sex scapegoating means 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.
Executive Order 13950 prohibits contractors from using any workplace training “that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating” and provides several examples of specific concepts that would be prohibited in such training programs. OFCCP also notes that race or sex stereotyping or scapegoating in a training program, or employment generally, may also violate the affirmative and nondiscrimination obligations of Executive Order 11246.
Race or sex stereotyping or scapegoating includes the concepts that:
- 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.
Unconscious or implicit bias training is prohibited 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.
Training is not prohibited 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.
Any individual or group may file a complaint via the new hotline for reporting race and sex stereotyping and scapegoating. The hotline receives complaints via telephone at 202-343-2008 and via email at OFCCPComplaintHotline@dol.gov. Third parties may also file a complaint on behalf of an individual or a group. Complaints that are received under Executive Order 11246 will be investigated following the agency’s normal complaint procedures, including the completion of a complaint form available on OFCCP’s website at www.dol.gov/agencies/ofccp/contact/file-complaint. The agency can also provide a copy of the complaint form by email or regular mail.
The Department of Labor has released a Request for Information seeking information from federal contractors, federal subcontractors, and employees of federal contractors and subcontractors regarding their training, workshops, or similar programming provided to employees that may be in violation of Executive Orders 11246 or 13950. Submission of documentation is voluntary, those who do submit will be eligible for compliance training and will not necessarily face enforcement action unless that documentation indicates egregious violations of established law.
Vice President of Regulatory Affairs , PHCC-National Association