Federal Contractors Can Provide Unconscious Bias Training, Says OFCCP

Update: President Joe Biden signed an Executive Order on January 20, 2021, revoking Executive Order 13950, discussed below.

Federal Contractors Can Provide Unconscious Bias Training, Says OFCCP

On October 7, 2020, the U.S. Department of Labor, Office of Federal Contract Compliance (OFCCP) issued guidance on Executive Order 13950, which seeks to prohibit federal agency and government contractor workplace training that “labels entire groups of Americans as inherently racist or evil.”

Although Executive Order 13950 outlines prohibited topics for diversity training, it does not directly address whether specific training categories – such as unconscious bias – are banned. OFCCP issued guidance to provide clarification.

OFCCP guidance makes clear that federal government contractors are not barred from providing unconscious bias training to employees. The guidance also explains that Executive Order 13950 only applies to federal contracts entered into or amended on or after November 21, 2020.

Important developments on Executive Order 13950 are discussed below.

The Executive Order: September 22

President Donald Trump issued Executive Order 13950 on September 22, 2020, which requires federal agencies to include language in a government contract prohibiting workplace training on any of the following concepts:

• One race or sex is inherently superior to another race or sex.
• An individual, by virtue of their race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
• An individual should be discriminated against or receive adverse treatment solely or partly because of their race or sex.
• Members of one race or sex cannot and should not attempt to treat others without respect to race or sex.
• An individual’s moral character is necessarily determined by their race or sex.
• An individual, by virtue of their race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.
• Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of their race or sex.
• Meritocracy or traits such as a hard work ethic are racist or sexist or were created by a particular race to oppress another race.

Federal government contractors must also post a workplace notice provided by the agency contracting office and include specific provisions of Executive Order 13950 in subcontracts.

Executive Order 13950 also directs OFCCP to create a hotline and investigate complaints of prohibited training programs.

The Memo: September 28

Shortly after President Trump issued Executive Order 13950, the Director of the Office of Management and Budget (OMB) issued a Memo on September 28, 2020, to provide clarification to federal agencies.

In the Memo, the OMB Director recognized that the now-prohibited training constitutes only a small subset of a larger pool of federal agency trainings held to promote diversity and inclusiveness. He advised “agencies [to] continue all training that will foster a workplace that is respectful of all employees.”

Importantly, neither Executive Order 13950 nor the Memo categorically ban unconscious bias training.

The Effective Date: November 21

Executive Order 13950 instructs federal agencies to include the newly required contract clause in any government contract entered into or amended 60 days after the effective date.

Based on this language, OFCCP asserts that Executive Order 13950 only applies to contracts entered into or amended on or after November 21, 2020. As a result, Executive Order 13950 does not affect existing government contracts entered into before November 21, 2020.

The Takeaway

Executive Order 13950 is not a blanket ban on unconscious bias training. Rather, the order purportedly intends to restrict a narrow range of diversity topics.

Moreover, Executive Order 13950 only applies when an organization enters into or amends a contract that includes the new contract clause on or after November 21, 2020.

Whether Executive Order 13950 will remain in effect in 2021 is uncertain in light of the upcoming election. If President Donald Trump loses his re-election bid, the order will likely be rescinded when the new administration takes office in January 2021. Even if President Donald Trump is re-elected, legal challenges are expected.