Dive Brief:

• The U.S. Department of Labor's Office of Federal Contract Compliance Programs published guidance last week implementing President Donald Trump's executive order prohibiting federal contractors and other entities from promoting "race or sex stereotyping or scapegoating" within their workplace diversity and inclusion training programs.
• The guidance, presented in a question-and-answer format, lists several examples of race or sex stereotyping or scapegoating — both of which are defined in the executive order — including concepts that a person is inherently, whether consciously or unconsciously, racist, sexist or oppressive 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; or should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her race or sex, among other points.
• OFCCP directed those who wish to file a complaint about a training program that violates the order to a new hotline that can be accessed via phone or email. The requirements will apply to contracts entered into 60 days after the order, or Nov. 21, but OFCCP said it "may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246." The agency also said it plans to take an initial rulemaking step — the publication of a Request for Information — next week.

Dive Insight:

The guidance forms a piece of the administration's follow-up to the Sept. 22 executive order in which Trump prohibited "divisive concepts," such as sex or race stereotyping or scapegoating, from being included in training programs run by U.S. uniformed services, federal agencies and recipients of federal grants, in addition to federal contractors and subcontractors.

The administration's terminology, specifically its use of the terms "sex or race stereotyping or scapegoating," is "unusual," said Marilyn Fish, partner at Bryan Cave Leighton Paisner. "That's not typically something that I see referred to very frequently in the existing case law or regulations."

Generally, the administration's references — both within the OFCCP guidance document and the executive order — to concepts such as white privilege, past actions of prior members of a race or sex and similar issues "are not typically found in non-discrimination law," Fish said. "This is really taking it all a step further than we would typically find out there in existing equal employment or even existing affirmative action laws."

The document's publication follows public discussion of the administration's decision; the executive order became a topic of discussion in this year's first presidential debate, in which Trump defended an earlier, similar directive prohibiting certain training programs. "We were paying people hundreds of thousands of dollars to teach very bad ideas and frankly, very sick ideas," the president said during the debate.

Recent news suggests OFCCP is already moving in a similar direction. Microsoft Corporate Vice President and General Counsel Dev Stahlkopf said Oct. 6 that OFCCP had contacted the company "regarding some of the commitments we made in June to address issues faced by the Black and African American community."

The agency's letter suggested that a Microsoft training initiative "'appears to imply that employment action may be taken on the basis of race,'" and it asked Microsoft to prove the company's actions were not illegal race-based decisions, according to Stahlkopf. "Emphatically, they are not," she said.

The guidance document also "seems to cast an agenda for the OFCCP that perhaps highlights concepts of reverse discrimination … in other words discrimination against Whites and against males," Fish said, even though the document itself does not specifically refer to reverse discrimination. "It's not outside the realm of their responsibility to investigate a concern of discrimination against Whites or against males. It's not typically what you would see."

Should OFCCP investigate and later discover instances of race or sex stereotyping or scapegoating within an employer's training program, the most likely outcome is that it would decide to allow the contractor an opportunity to revise the training rather than implementing a more severe enforcement action, Fish said.

Additionally, Fish said she believes contractors should continue with their scheduled D&I training programs while also acknowledging that "it's probably wise" for contractors to examine the concepts explored in such programs "at a high level" to determine whether they would violate the executive order.

"Although the executive order causes some contractors to be concerned, I think that you can't lose sight of the fact of the importance of continuing to advocate for a very strong training program for non-discrimination," she said.