Discrimination
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Unconscious bias training still allowed in the US under President Trump’s diversity training Executive Order

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
Authors
Cymoril M. White
Assistant Lawyer - United States
FordHarrison LLP
Nancy Van der Veer Holt
Partner - United States
FordHarrison LLP
Dawn Siler-Nixon
Partner - United States
FordHarrison LLP
United States
02.11.20
3
The US Department of Labor has clarified that government contractors will still be allowed to offer unconscious bias training in some form under President Trump’s recent Executive Order on ‘race and sex stereotyping’.

On 22 September 2020, President Trump signed Executive Order 13950, Combating Race and Sex Stereotyping (the ‘EO’), which indicates that it seeks to ‘combat offensive and anti-American race and sex stereotyping and scapegoating,’ and end so-called ‘divisive concepts’ promulgated in workplace employee trainings.

The EO 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.’ See here for a complete summary of the EO.

This EO came as a shock to many government contractors, as most have made commitments to combat racism by increasing their equity and diversity trainings in light of the national conversation regarding workplace equality and discrimination following triggering events like the deaths of Breonna Taylor and George Floyd, among others. Many government contractors are perplexed about how they should proceed with honouring their recent commitments to diversity without running afoul of EO 13950, which appears to make any discussions of topics like unconscious/implicit bias, racial sensitivity, privilege, meritocracy, and sexual harassment in workplace trainings illegal and sanctionable. To assist government contractors in interpreting EO 13950, the DOL’s Office of Federal Contract Compliance Programs (‘OFCCP’) has prepared answers to certain Frequently Asked Questions (FAQs), which provide some helpful clarifications and insights for covered contractors.

Department of Labor issues FAQs

The OFCCP’s initial FAQs landing page provides helpful information on whether the EO ‘prohibit[s] unconscious bias or implicit bias training?’ The guidance provides the following:

‘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.’

In addition, the FAQs clarify when the EO takes effect, and what will happen with complaints received by OFCCP through its new hotline for reporting race and sex stereotyping and scapegoating in violation of the EO. According to OFCCP, the EO:

‘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.’

Importantly, it is only ‘[o]nce Executive Order 13950 becomes effective in federal contracts, [that] OFCCP will begin enforcing it.’

What does this mean for covered Government contractors?

Covered contractors can continue to implement unconscious and implicit bias trainings so long as the trainings are not blame-focused or targeting specific groups, and instead broadly address the development of biases, how they manifest themselves in our daily lives and how we can combat biases. Craig Leen, Director of the OFCCP, has stated that unconscious bias training is ‘perfectly fine’ as long as the training ‘teaches that everyone, based on the human condition, has unconscious biases,’ and does not specifically call out a particular race, national origin, or sex as being inherently biased. Therefore, covered contractors can still move forward with their diversity training efforts, as long as the conversations steer clear of calling out individuals as inherently racist, sexist, or biased, based solely on their specific race or gender.

There are plenty of other workplace diversity and inclusion trainings and dialogues that the EO does not appear to prohibit, such as those involving cultural competence, generational diversity, harassment, microaggressions, communications across differences, mindfulness and trainings unrelated to race or gender, to name a few.

Federal contractors should be on the lookout for the upcoming Request for Information (RFI) that the DOL is required to issue under the EO. This Request for Information 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’ EO 13950 or 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.

Federal contractors should consider consulting with counsel as they determine whether to submit documentation in response to the RFI. Additionally, while the OFCCP’s hotline is up and running to receive complaints, via phone and email, of any trainings that are believed to be in violation of the EO, OFCCP likely will only be investigating alleged violations of EO 11246 until EO 13950 begins being inserted into contracts late next month.