Executive Order 13950: OFCCP Requests Information on Workplace Diversity Training
Last week, in keeping with its obligations under the Order, the OFCCP issued a Request for Information (RFI) asking federal contractors, subcontractors, the public, and employees to submit comments, information, and materials regarding workplace training programs that may run afoul of the Order. Responses are due by December 1, 2020.
The RFI’S stated purpose is to assist the OFCCP in its mission of “ensur[ing] that those doing business with the Federal government … do not treat workers differently on the basis of race, sex, or other protected characteristics.” In other words, the RFI is aimed at enforcement.
The OFCCP seeks information and materials concerning any or all of the following categories, if applicable:
- Workplace trainings that promote, or could be reasonably interpreted to promote, race or sex stereotyping.
- Workplace trainings that promote, or could be reasonably interpreted to promote, race, or sex scapegoating.
- The duration of any workplace training identified in categories 1 or 2.
- The frequency of any workplace training identified in categories 1 or 2.
- And, the expense or costs associated with any workplace training identified in categories 1 or 2.
The material submitted can be in the form of PowerPoints, photographs, videos, handwritten notes, or printed handouts, and all forms of media and data that have in recent years been used, or that may soon be used, in both voluntary and mandatory trainings, workshops, or similar programming.
The OFCCP also requests input on any or all of the following questions, if applicable:
- Have there been complaints concerning the training?
- Has the company disciplined employees for complaining or otherwise questioning the training?
- Who developed the company’s diversity training, the company or third parties?
- Is diversity training mandatory?
- If only certain trainings are mandatory, which are mandatory and which are optional?
- Approximately what portion of the company’s annual mandatory training relates to diversity?
- And, approximately what portion of the company’s annual optional training relates to diversity?
As we’ve reported the OFCCP has created a telephone — (202) 343–2008 — and e-mail — OFCCPComplaintHotline@dol.gov — hotline for employees and others to report potentially non-compliant workplace training materials. Said the OFCCP in announcing the RFI, the OFCCP will protect the confidentiality of those who submit information through the hotline to the fullest extent permitted by law. But, information that the OFCCP receives in response to the RFI its information request “may become a matter of public record and may be subject to public disclosure.”
Voluntary Participation – but with a Safe Harbor Provision
According to the OFCCP, the RFI “is strictly voluntary”. But, the OFCCP offers an incentive for contractors and subcontractors to respond. Specifically, it provides safe harbor to contractors and subcontractors if (1) a company executive, owner, or legal representative with actual authority to bind the company in agreements with the United States, submits possibly non-compliant training information or materials; and (2) the company “promptly comes into compliance with the Executive Orders as directed by OFCCP.”
In contrast, if the contractor or subcontractor does not take action deemed to sufficiently compliant, that entity will be subject to enforcement if the OFCCP receives the materials from a different source:
[if] a Federal contractor or subcontractor who voluntarily submits information or materials in response to this request for information is determined by OFCCP to have non-compliant materials, and the contractor or subcontractor refuses to correct the issue after compliance assistance is provided, OFCCP may take enforcement action against the contractor or subcontractor if OFCCP later receives the contractor or subcontractor’s materials through a separate source, such as a neutrally scheduled audit, in connection with a complaint, or if submitted by an employee in response to this RFI.
Regarding all other Federal contractors and subcontractors, there are no adverse legal consequences for choosing not to participate in this request for information.
How to Submit Information
Contractors and subcontractors may submit comments, information, and materials by anyone of the following methods:
- Electronic comments: The Federal eRulemaking portal at www.regulations.gov. Follow the instructions found on that website.
- Mail, Hand Delivery, Courier: Addressed to Tina Williams, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C–3325, Washington, DC 20210.
- Related Practices