President Trump issued an Executive Order (EO) on September 22nd on “Combating Race and Sex Stereotyping.” This EO was in follow-up to a letter the White House issued earlier in September prohibiting racial sensitivity and other training programs among federal agency employees that the President thought un-American. Many federal contractors were concerned when the EO was issued that it would create robust new compliance obligations (of which there are already many). The good news is that most of the EO addresses requirements that federal agencies must follow (not contractors). However, there are two key takeaways for federal contractors of which they should be aware:
- A new contract clause will be required for contracts entered into on or after November 21, 2020; and
- The OFCCP will be issuing regulations regarding diversity training, workshops, or similar programs to ensure the materials do not “inculcate” in the contractor’s employees “any form of race or sex stereotyping or race or sex scapegoating.”
The New Contract Clause
The new contract clause must be added to all contracts that are entered into on or after November 21st (with few exceptions). The EO requires, among other things, inserting the following as a clause into the contract.
During the performance of the contract, the contractor agrees as follows:
The contractor shall not use any workplace training that inculcates in its employees any form of race or sex stereotyping or race and sex scapegoating, including 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 sex or race;
- 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 others 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.to oppress another race or sex.
The term “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, and the term “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.
The EO does not state whether the clause needs to be included into the contract in its entirety or whether simply incorporating the clause by reference and citing to EO 1395 will be sufficient. Many other clauses, like the standard EEO clause, may be restated in federal contracts by simply incorporating the citation to the clause without restating the entire text of the clause. Arguably, contractors should be able to do the same with the clause from the new EO.
Forthcoming OFCCP Guidance
The EO requires that the OFCCP publish a request for information in the Federal Register by the end of October 2020. That request for information, addressed to federal contractors, federal subcontractors, and their employees, will request they “provide copies of any training, workshop, or similar programming having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.” The reason is not yet clear, but arguably the OFCCP will review the materials it receives to see which contractors’ training materials comply with the new EO training restrictions.
The executive order also requires the OFCCP to establish a hotline to investigate complaints that an employer’s training programs violate the requirements of this EO or of EO 11246, which establishes the basis for federal contractor affirmative action requirements. The agency moved quickly and had the hotline operational as of September 29th. Callers can leave a voicemail or submit a complaint to an e-mail address that the agency provides.
What Should Contractors Do Now?
Businesses with federal prime and subcontracts should review their current training materials to see if any statements run counter to the directions provided by the President’s EO. Until further guidance from the OFCCP, if a contractor believes current statements in its training materials would violate the EO, those materials should be removed as a precaution.