Wednesday, September 30, 2020
Following the “Combating Race and Intercourse Stereotyping” Government Order (EO), which requires the Workplace of Federal Contract Compliance Packages (OFCCP) to arrange a hotline and examine complaints of violations, OFCCP has issued a press launch offering further info and reporting the launch of the hotline.
The EO covers authorities contractors and sure grant recipients and seeks to severely restrict and curtail the variety and inclusion, sexual harassment, and associated equal employment alternative coaching contractors and recipients are allowed to offer their workers. (See our article, White Home ‘Combating Race and Intercourse Stereotyping’ Government Order Limits Coaching.)
Considerably, the hotline is now lively, regardless of the very fact the EO contract clause necessities are efficient just for new contracts entered into November 21, 2020, or thereafter. As mentioned within the EO and additional defined by OFCCP, any coaching that violates the EO additionally could violate EO 11246:
Whereas the order is efficient instantly, its particular necessities for Federal contractors apply solely to these with Federal contracts entered into 60 days after the date of the order, or Nov. 21, 2020. Nonetheless, coaching packages prohibited by the brand new Government Order may violate a contractor’s obligations underneath the present Government Order 11246, which prohibits discrimination based mostly on race, colour, faith, intercourse, sexual orientation, gender id, nationwide origin, and for inquiring about, discussing, or disclosing your compensation or the compensation of others.
The press launch (and the hotline message) additionally offers info concerning tips on how to file a criticism at OFCCP’s web site, along with the hotline.
Thus, employers with present federal contracts needs to be conscious that workers could file complaints at any time earlier than, in addition to after, November 21, based mostly on coaching and associated supplies they might understand as opposite to the EO.
As well as, the Director of the Workplace of Administration and Funds (OMB) on September 28 issued a Memorandum to the heads of Government businesses and departments (M-20-37) offering further insights into the EO. Considerably, the Memorandum identifies seven “key phrases” — together with “unconscious bias” — which will set off additional evaluate of company coaching supplies:
Critiques of particular coaching curriculum supplies will be supplemented by a broader key phrase search of company monetary information and procurements for phrases together with, however not restricted to: “crucial race idea,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.” When used within the context of variety coaching, these phrases could assist to determine the kind of coaching prohibited by the E.O. Looking for these key phrases with out further evaluate doesn’t fulfill the evaluate necessities of the E.O.
Whereas the foregoing key phrases apply to searches of company coaching supplies, it’s seemingly these would be the similar key phrases for which OFCCP will look when reviewing contractor coaching supplies.
Furthermore, the Memorandum asserts, “Federal contractors are to be required to symbolize that they won’t conduct such trainings for their very own workers, with potential sanctions for noncompliance.” This requirement of an affirmative illustration doesn’t seem within the EO.
The EO particularly states that it doesn’t forestall variety, inclusion, and bias coaching. Nonetheless, given these developments (OFCCP’s activation of the criticism hotline and the identification of key phrases within the OMB Memorandum), federal contractors ought to fastidiously evaluate their coaching supplies for any “divisive ideas,” together with the key phrases recognized within the Memorandum, and take into account whether or not any revisions to these supplies could also be advisable. Federal contractors additionally ought to take into account retaining coaching PowerPoints, speaker outlines, and associated supplies ought to the necessity to defend these supplies come up.
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