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OFCCP clarifies and requests comments on Executive Order 13950 re EEO training by government contractors

On 9/22/2020 President Trump issued Executive Order 13950, which appears to prohibit government contractors who are subject to Executive Order 11246 (OFCCP jurisdiction) from undertaking EEO training that, merely reading the order on its face, might possibly even implicit bias trainings. In today’s Federal Register, 85 FR 67375, the OFCCP initiated rulemaking under the new Executive Order by soliciting “comments, information, and material” re such trainings.

In a widely reported and documented speech, U.S. Secretary of Labor Eugene Scalia confirmed that Executive Order 13950 does not prohibit common EEO trainings, even those that include training on implicit bias.

I should be clear about what the President’s new Order does not do. It does not prohibit workplace training about non-discrimination and equal opportunity—that training is important, the Labor Department encourages it, and in some instances we require it. Nor does the Order prohibit the diversity training offered by countless American employers; training that, like my remarks today, emphasizes the importance of recognizing the value and worth of people of all races and creeds. American employers should value diversity and take extra strides to assure opportunity for those who in the past have been denied it—although they must do so in a way that does not discriminate against others based on race, ethnicity, or other protected characteristics. Finally, the President’s Order does not prohibit trainings about pre-conceptions or biases that people may have—regardless of their race or sex—about people who are different, and which could cause slights or even discrimination that’s not intended. What the Order does prohibit, though, is instruction in which federal contractors tell workers that because of their particular race or sex, they are racist, morally culpable, or less worthy of being heard.

Rather, he announced, and the OFCCP’s regulatory publication today confirms, that Executive Order 13950 is getting at something it calls “race or sex scapegoating.” It is not clear what this term means since, as today’s regulatory publication confirms it has long already been prohibited as a subset (just one kind, or one example, of) what was already prohibited: “race or sex stereotyping.” The OFCCP explains this in today’s rulemaking publication, as follows:

As used in this request for information, “race or sex stereotyping” means “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.” [4Race 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,” and includes claims “that, consciously or unconsciously, and by virtue of his or her 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.” 

In short, Executive Order 13950 apparently does not prohibit the common kinds of EEO training, including on implicit bias, that companies currently use to combat race and sex discrimination, including unlawful harassment. It does apparently prohibit training that accuses the members of a particular gender or race of being “inherently inclined to oppress others.”

President Trump limits informal agency guidances

Federal law requires administrative agencies to go through a rulemaking process before implementing regulations. To avoid that process, agencies have increasingly begun using informal “guidances,” often issued in the form of memorandums, letters and bulletins. By two Executive Orders, the President has ordered administrative agencies, among other things, to include in any such document a disclaimer that it does not carry the force of law and further to make all such documents available to the public via a searchable database on the Internet. It is not yet clear whether the Executive Orders reach opinion letters, such as the Department of Labor’s well known opinion letters.

Obama-era Executive Order 13673 (entitled Fair Pay and Safe Workplaces”) repealed

Congress has repealed regulations implementing President Obama’s 2014 Executive Order 13673, titled the Fair Pay and Safe Workplaces Act, and, as he signed that Congressional Resolution into effect, President Trump signed his own Executive Order repealing President Obama’s Executive Order itself.

This brings an end to Executive Order 13673 in its entirety. The executive order had been highly controversial. On one hand its proponents praised it as a means of protecting civil rights for workers at government contractors; on the other its critics called it unclear, impractical, ineffectual and harmful. Worse for the order, parts were quickly blocked by the courts as an unconstitutional Presidential overreach in violation of the Constitution’s separation of powers and speech principles.

The Executive Order’s now-defunct provisions had included a requirement that government contractors self-disclose labor and employment violations and a prohibition against government contractors entering into mandatory pre-dispute arbitration agreements.

Source: House Joint Resolution 37 and Executive Order dated 3/27/18.