As Microsoft deals with a government investigation into its diversity hiring program, the rest of you federal contractors should take note of these new Office of Federal Contract Compliance Programs (OFFCP) guidelines addressing the White House “Executive Order on Combating Race and Sex Stereotyping.”
(You can find more on the Executive Order here. I took most of what I’m about to share with you below directly from the new OFCCP guidelines without any edits.)
While the Executive Order took effect on September 22, 2020, federal contractors and subcontractors’ requirements will apply to contracts entered into 60 days after the date of the executive order—November 21, 2020.
Under the Executive Order, government contractors cannot use 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. 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.
Does Executive Order 13950 prohibit unconscious bias or implicit bias training?
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.
If OFCCP receives a complaint about your training program, it will investigate immediately, following the agency’s standard procedures. Contractors that violate the Executive Order may have their contracts canceled, terminated, or suspended in whole or in part. The contractor may also be declared ineligible for further Government contracts.
The OFCCP guidance is just that for now: guidance. There may be more from the OFCCP in the coming weeks and months.
If you have questions about whether your diversity training program will pass muster, give me a shout and I may be able to steer you in the right direction or contact your outside employment law counsel.