As directed in the recent controversial Executive Order (EO) 13950– Combatting Race and Sex Stereotyping, OFCCP is publishing in the Federal Register a request for information (RFI) seeking to collect information regarding training materials that may contain “divisive concepts” or promote sex and race stereotyping or scapegoating. The Agency also held a public Stakeholder Call to provide RFI guidance and address questions regarding the new EO.

As a reminder, the EO directs OFCCP to collect “information from Federal Contractors … regarding the training, workshops, or similar programming provided to employees” and should

request copies of any training, workshop, or similar programing having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities.

The RFI encourages contractors and their employees to submit training materials in order to receive compliance assistance.  During the Agency’s stakeholder call addressing the RFI, OFCCP Director Craig Leen reiterated the purpose of the RFI is to obtain relevant training material so the Agency can provide compliance assistance, and “not for enforcement.”

The RFI makes clear that participation by federal contractors is “strictly voluntary” and there are “no adverse consequences for choosing not to participate.”  The details of the RFI provide more detail and perspective, as follows:

• According to the RFI, if a contractor submits materials that OFCCP deems are not compliant with EO 13950 and EO 11246, OFCCP will provide compliance assistance and not to bring an enforcement action.
• Interestingly, the RFI sets out that Contractors may take advantage of this incentive only if training materials are submitted “by one of the contractor’s or subcontractor’s executives, owners or legal representatives with actual authority to legally bind the” company.
• If OFCCP deems the information to be non-compliant, provides technical assistance and the contractor refuses to correct the issues, OFCCP may take enforcement action if the Agency later receives the materials from a separate source – such as during an audit or from an employee.

During the Stakeholder Call, Director Leen said the Agency is “hoping for a very significant response” to the RFI and that submission of training materials “can only help the company because it will not lead to enforcement.”

The risk of not providing materials hinges not only on whether OFCCP receives substantially the same materials from another source at a later time, but also on whether OFCCP could proceed directly to enforcement. It seems unlikely that would be the case.  Rather, it would appear that a contractor who did not submit materials would still have the opportunity to conciliate a subsequent alleged violation and revise its training materials to address the Agency’s concerns.

Shortly after President Trump issued the EO, OFCCP set up a hotline and website to receive complaints regarding training materials, and has already started to receive, and investigation claims as potential violations of EO 11246.  Director Leen emphasized in the stakeholder call that such efforts are consistent with the November 21 effective date of the EO because EO 11246 is consistent with EO 13950 in that both prohibit discrimination based on race or sex in the guise of affirmative action.  While diversity actions consistent with EO 11246 are encouraged and required, discrimination is not permitted.

We want to continue to emphasize that the EO does not ban training – only specific divisive concepts.  We suggest federal contractors carefully review and revise their training materials, as necessary, as well as “train the trainer” regarding the parameters of the EO.

We will continue to provide updates as discussions continue and additional information and insights are learned.