Yesterday, the U.S. Department of Labor (“DOL”) issued its first guidance on President Trump’s Executive Order 13950 titled “Combating Race and Sex Stereotyping” that was issued on September 22, 2020. In general, the Executive Order prohibits federal contractors from promoting race or sex stereotyping or scapegoating or implementing workplace diversity and inclusion trainings.
A brief summary of the first guidance is below.
The Executive Order became effective on September 22 but the requirements for federal contractors and subcontractors applies to contracts entered into 60 days after the date of the Executive Order, which is November 21, 2020.
The Executive Order defines “race or sex stereotyping” as 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. It also defines “race or sex scapegoating” 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 Executive Order prohibits contractors from using any workplace training that teaches its employees any form of race or sex stereotyping or any form of race or sex scapegoating. The following are several examples of specific concepts that are prohibited in such training programs:
- 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 Executive Order also prohibits unconscious bias or implicit bias training 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 preconceptions, 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.
Complaints Alleging Unlawful Training Programs
Any individual, group or third party on behalf of an individual or a group may file a complaint via a DOL hotline for reporting race and sex stereotyping and scapegoating. Complaints will be investigated immediately, following the agency’s standard procedures.
Contractors found in violation may have their contracts canceled, terminated, or suspended in whole or in part. The contractor may also be declared ineligible for further government contracts in accordance with the procedures authorized under Executive Order 11246 titled Equal Employment Opportunity.
DOL’s Request for Information
The DOL is currently drafting the Request for Information (“RFI”) to meet the October 22, 2020, deadline set by Executive Order 13950. The RFI will seek 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.