On Monday, Sept. 28, 2020, the Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) launched a hotline and email address to receive and investigate complaints under Executive Order 11246 (the EEO Order) and the President’s recent Executive Order 13950 (the Order or the new Order). The President issued the Order, titled “Executive Order on Combating Race and Sex Stereotyping,” on Sept. 22, 2020, to “foster environments devoid of hostility grounded in race, sex, and other federally protected characteristics” and eliminate certain “un-American” and “divisive concepts” from diversity and inclusion (D&I) trainings by federal agencies, federal contractors, and federal grant recipients.

Through this new hotline, the OFCCP will investigate complaints of training programs prohibited by the Order to see if they also run afoul of the EEO Order, which is incorporated in Government contracts through FAR § 52.222-26 (Equal Opportunity). Contractors already subject to this FAR provision should review current D&I trainings, using the new Order as a guideline, to ensure compliance. Additionally, the Order may expand what is considered as “harassment” under Title VII of the Civil Rights Act of 1964. Federal contractors may be subject to liability for trainings that include an enumerated “divisive concept” if they are found to be a form of harassment under civil rights rules. The Order empowers the United States Attorney General to look further into this and issue additional guidance in coordination with the Equal Employment Opportunity Commission.

In addition to the hotline, Section 4(a)(1) of the Order sets out the provisions that must be included in non-exempt Government contracts (the exemptions are provided in EEO Order §204), including a prohibition of “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating,” terms that the Order defines broadly. This provision sets forth nine “divisive concepts” which may not be included in any D&I training during contract performance, whether or not the training is for personnel involved in contract performance. Specifically, D&I trainings are prohibited from teaching that:

1. one race or sex is inherently superior to another race or sex;
2. the United States is fundamentally racist or sexist;
3. an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
4. an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
5. members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
6. an individual’s moral character is necessarily determined by his or her race or sex;
7. an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
8. any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
9. meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating. 

Federal contractors are not bound by the new contractual provisions until they enter into a contract, or renew a contract, containing the new language after Nov. 21, 2020. It is unclear at this time whether a contract modification would also trigger incorporating this provision. In the meantime, contractors may consider reviewing their D&I materials in anticipation of this change and to protect against potential claims under the EEO Order. Once a Federal contractor enters into a contract containing the Order’s contractual provisions, the contractor must ensure its trainings comply with the Order or risk cancellation, termination, suspension, debarment, and the possibility of additional remedies and sanctions. Federal contractors also must include these requirements in subcontracts and purchase orders. Lastly, Federal contractors must send a notice to each of their labor unions advising of the contractor’s commitments pursuant to the Order and post the notice in places available both to employees and applicants. For guidance on what these notices should look like and where they should be placed, contractors may be able to follow the same or similar practices they have in place with respect to FAR § 52.222-26(c)(5)(ii)(B).

Recipients of certain federal grants are also covered in this Order. Agencies are tasked with reviewing and identifying which programs the agency may, as a condition of receiving a grant, require the recipient to certify that it will not use Federal funds to promote any of the above stated “divisive concepts.” Within 60 days of the Order, the heads of the agencies must submit a report to the Office of Management and Budget listing all grant programs that must contain this pre-condition.

In general, the Order’s broad and seemingly vague language has raised many questions about which D&I trainings fall within the Order’s scope. Because of this, contractors should carefully review their D&I training materials for language that could potentially embody one of the above “divisive concepts.” The OFCCP is tasked with issuing a request for information (RFI) within 30 days of the Order (by the end of October) seeking information from Federal contractors, subcontractors, and employees regarding their D&I trainings, workshops, or “similar programming” provided to employees. The OFCCP also is instructed to include in its RFI a request for “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 OFCCP’s RFI may, or may not, provide more information on what specific topics of trainings the OFCCP and the Order intend to prohibit. Also, legal challenges to the Order are expected, including First Amendment, and federal and state civil rights challenges.

While Federal contractors are not bound by the contractual language until they enter into a new, or renewed, contract on or after Nov. 21, 2020 that contains the Order’s provisions, there is uncertainty as to whether the listed “divisive concepts” could expand the definition of harassment under the Civil Rights Act. With this in mind, contractors should carefully monitor and plan out upcoming trainings, and if there is any uncertainty as to whether one or more of the “divisive concepts” might be included, consider postponing the training, if that can be done consistently with the terms of the federal contract, or the terms of the company’s commercial contracts. Dentons will continue to monitor any developments.