OFCCP Issues FAQs Concerning Executive Order "Combating Race and Sex Stereotyping"

On Sept. 22, 2020, President Donald Trump signed Executive Order (EO) 13950, "Combating Race and Sex Stereotyping." Among other things, the EO prohibits federal contractors from promoting "race or sex stereotyping or scapegoating" in workplace diversity and inclusion trainings. This restriction on diversity and inclusion training becomes effective on Nov. 22, 2020.

In seeking to understand the EO, federal government contractors expressed concern over how to identify race or sex stereotyping or scapegoating. The Office of Federal Contract Compliance Programs (OFCCP) has published responses to Frequently Asked Questions (FAQs) about the EO. Perhaps most important to contractors reviewing their diversity and inclusion training, the FAQs provide specific examples of what the Administration considers to be race or sex stereotyping or scapegoating.

The FAQs begin with definitions of stereotyping and scapegoating. Race or sex stereotyping exists when character traits, values, moral and ethical codes, privileges, status, or beliefs are ascribed to an entire race or sex, or to individuals, because of their race or sex. Scapegoating occurs when fault, blame or bias is assigned to a race or sex, or to members of a race or sex, because of their race or sex. The FAQs further explain that scapegoating encompasses "any claim that, consciously or unconsciously, and by virtue of their race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others."

The FAQs identifies examples of race or sex stereotyping or scapegoating, which occur when diversity and inclusion training includes concepts that:

• one race or sex is inherently superior to another race or sex
• an individual, by virtue of his or her 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 his or her 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 his or her race or sex
• 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
• any individual should feel discomfort, guilt, anguish or any other form of psychological distress on account of his or her 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

In addition to these proscriptions, the FAQs describe permissible diversity and inclusion training, as envisioned by the EO. According to the FAQs, training is not prohibited if it is "designed to inform workers, or foster discussion, about pre-conceptions, opinions, or stereotypes that people – regardless of their race or sex – may have regarding people who are different, which could influence a worker's conduct or speech and be perceived by others as offensive."

Finally, the FAQs state that an individual, group or third party on behalf of an individual or group may file complaints alleging violations of the EO using a new hotline established by the OFCCP. The FAQs also warn contractors that the consequences of failing to comply with the EO are potentially severe, including terminations or suspensions of contracts, or debarment or suspension.