October 23, 2020
The U.S. Labor Department has asked federal contractors to voluntarily submit information “related to workplace trainings that involve race or sex stereotyping or scapegoating,” as a town hall meeting raised uncertainty regarding the use of compensation incentives for achieving hiring goals.
Enforcement safe harbor: The request for information notes OFCCP will not take enforcement action against contractors that submit training material, but will instead provide compliance assistance regarding any changes that may need to be made.
Training material will be collected during OFCCP audits and will be reviewed for any violations of EO 13950 or 11246. Material may be submitted anonymously through a third party for initial review and then formally submitted by a contractor to receive the enforcement safe harbor. OFCCP’s review during audits will favor compliance assistance wherever possible.
Material protected under FOIA? OFCCP said it will keep materials submitted confidential under the Freedom of Information Act “to the maximum extent permitted by law.” Practically, however, those assurances provide little certainty for employers.
Town hall meeting offers opportunity for clarification: OFCCP Director Craig Leen discussed the department’s approach to the RFI and the executive order overall in a stakeholder town hall webinar sponsored by the Institute for Workplace Equality. HR Policy’s Tim Bartl, Ani Huang and Mark Wilson participated along with other leading trade associations.
Compensation incentives unclear for hiring goals: During the town hall, Leen was unclear in response to a question from Bartl regarding the circumstances in which compensation incentives for hiring goals were allowed under EO 11246, saying it would have to be decided on a case-by-case basis.
Director Leen also noted that discussions about unconscious bias may not be totally off the table, as long as they are not directed at one particular group. However, "white privilege training and white fragility training" are "problematic," he said, because they are "drawing general conclusions based on race and applying to them to specific employees based on race."
Outlook: It is uncertain how many federal contractors will voluntarily submit their D&I training material, and they may reevaluate their decision after the election.