In an earlier blog, we discussed Executive Order 13950, which directed federal agencies to include in their government contracts (except those contracts exempt from Executive Order 11246) a clause that prohibits contractors, during contract performance, from conducting any workplace training that “inculcates” (i.e., instills through persistent instruction) in their employees any form of race or sex stereotyping or scapegoating. The Executive Order directed the Office of Federal Contract Compliance Programs (OFCCP) to establish a hotline and to investigate complaints alleging that a government contractor or subcontractor is utilizing prohibited training programs. OFCCP has established both a telephone (202-343-2008) and email (OFCCPComplaintHotline@dol.gov) hotline.

Request for Information

The Executive Order also directed OFCCP to publish in the Federal Register, a request for information from government contractors, subcontractors, and their employees regarding the training, workshops, or similar programming provided to employees regarding diversity and inclusion. On October 22, 2020, OFCCP published that request. 85 FR 67375 (Oct. 22, 2020). In its request, OFCCP asked for the submission of information and materials concerning:

1. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping.
2. Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex scapegoating.
3. The duration of any such workplace training.
4. The frequency of any such workplace training.
5. The expense or costs associated with any such workplace training.

OFCCP also is seeking input on the following questions:

1. Have there been complaints concerning the workplace training? Has the person submitting information or other employees been disciplined for complaining or otherwise questioning the workplace training?
2. Who develops the company’s diversity training? Is it developed by individuals from the company or an outside company?
3. Is diversity training mandatory at the company? If only certain trainings are mandatory, which ones are mandatory and which ones are optional?
4. Approximately what portion of the company’s annual mandatory training relates to diversity?
5. Approximately what portion of the company’s annual optional training relates to diversity?

Submission of any materials or information is strictly voluntary – government contractors, subcontractors, and their employees have no obligation to submit any materials or information to OFCCP. Indeed, anyone who submits information should be aware that the information may be subject to public disclosure.

OFCCP Compliance Assistance

Government contractors and subcontractors who elect to submit materials or information in response to the request can receive OFCCP compliance assistance. In that event, the contractor or subcontractor may not be subject to OFCCP enforcement action relating to the materials or information submitted if the contractor or subcontractor “promptly” comes into compliance. If the contractor or subcontractor refuses to correct any issue identified by OFCCP, OFCCP may take enforcement action if it later receives the materials or information from a separate source such as an audit or complaint.