Unconscious bias training UPDATE

Federal Contractors Can Provide
Unconscious Bias Training, Says OFCCP

Update:  On January 20, 2021, President Biden signed an Executive Order revoking former President Trump’s Executive Order 13950, discussed below. Executive Order 13950 is no longer in effect.

The U.S. Department of Labor, Office of Federal Contract Compliance (OFCCP) recently issued guidance making clear that federal contractors can provide unconscious bias training.

OFCCP issued this much-anticipated guidance on October 7th, 2020, addressing President Trump’s Executive Order seeking to prohibit federal agency and contractor workplace training that “labels entire groups of Americans as inherently racist or evil.”

While the Executive Order generally outlines certain prohibited topics for diversity training, the Order does not directly address whether specific categories of training – such as unconscious bias – are banned.

The OFCCP FAQ guidance provides clarification on this and several other issues relating to the Order.

First, OFCCP makes clear that federal contractors are not barred from providing workplace unconscious bias training as long as the training does not “teach or imply that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously.”

According to OFCCP, “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.” Notably, the Executive Order also affirms that “[t]raining employees to create an inclusive workplace is appropriate and beneficial.” 

Second, OFCCP takes the position that the federal contractor requirements in the Executive Order do not apply to existing government contracts. Instead, these new requirements only apply to contracts entered into on or after November 21, 2020.

The Executive Order: September 22

President Trump’s Executive Order seeks to prohibit employee training that “labels entire groups of Americans as inherently racist or evil.” The Order requires federal agencies to include language in any government contract barring the contractor from providing 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 his or her 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

Under the Executive Order, federal contractors must post a workplace notice provided by the agency contracting office. Federal contractors must also include specific provisions of the Order in their subcontracts. Finally, the Order directs OFCCP to create a hotline and investigate complaints of prohibited training programs.

The Memo: September 28

Shortly after President Trump issued the Executive Order, the Director of the Office of Management and Budget (OMB) issued a Memo to provide clarification for federal agencies on the specific types of workplace training banned by the Order.

In the Memo, the Director addresses reports that some employees in the Executive Branch have been required to attend training where they were told that “virtually all White people contribute to ‘racism’ or where they were required to say that they ‘benefit’ from racism.”

Significantly, the Director recognized that the now-prohibited training “constitute[s] a subset of a larger pool of federal agency trainings held to promote diversity and inclusiveness” (emphasis in original). The Director further stated that “[a]gencies should continue all training that will foster a workplace that is respectful of all employees.”

The Director instructs federal agencies to identify all agency training programs related to diversity and inclusion held during 2020, calculate aggregate spending, and determine whether any such programs “teach, advocate, or promote the divisive concepts specified in the Executive Order.” According to the Memo, the agency review “can be supplemented by a keyword search,” for multiple phrases, including “unconscious bias,” to assist agencies in locating workplace training that “may help to identify” prohibited training. Finally, the Memo plainly states that “[s]earching for these keywords without additional review does not satisfy the review requirements of the Executive Order.”

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

The Effective Date: November 21

President Trump’s Executive Order became effective immediately when signed on September 22, 2020. The Order instructs federal agencies to include the newly required contract clauses in any government contract entered into 60 days after the date of the order – November 21, 2020.

Based on this language, the OFCCP asserts that the Order only applies to contracts entered into after November 21, 2020. Thus, OFCCP is essentially taking the position that the Executive Order does not affect existing government contracts entered into before November 21, 2020. 

The Takeaway

President Trump’s Executive Order is not a blanket ban on any and all unconscious bias training in the workplace. Instead, the Order purportedly intends to restrict certain types of diversity training on specific prohibited topics. 

Furthermore, it appears the Order’s requirements, including the ban on certain types of training, only apply when an employer enters into a contract that includes the new contract clauses – on or after November 21, 2020.  

Given that, and OFCCP’s position on this issue, it is reasonable to conclude that existing federal contracts are not subject to the new restrictions. The Order’s requirements arguably only apply to any new or amended federal contract with a post-November 21 date.

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

Clear Law Institute’s Unconscious Bias Training is Compliant with OFCCP Guidance On Trump’s Order

Clear Law Institute’s Unconscious Bias Training is fully compliant with the Executive Order as interrupted by the OFCCP FAQ guidance. As stated in this guidance, unconscious bias training that does not “teach or imply that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased” is compliant with the Executive Order

Our Unconscious Bias Training does not conflict with OFCCP’s guidance on the Executive Order. Research has shown that we all can have negative associations with our own personal characteristics. Consistent with this research, our training expressly teaches that we all have hidden biases, regardless of our race or gender.

Clear Law Insitute’s Unconscious Bias Training is online, self-paced, and fully narrated. The training also includes numerous interactive animations, video demonstrations, and exercises to keep employees engaged.

We provide online training to more than 1,000 employers, handle training roll-out to employees, support tech issues, and track course completions.

Click here to learn more and receive a FREE TRIAL of Clear Law Institute’s Unconcious Bias Training: Promoting a Diverse and Inclusive Workplace.

 

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