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Trump Didn’t Ban All Unconscious-Bias Training: DOL Official

Oct. 2, 2020, 7:02 PM

A U.S. Labor Department subagency leader emphasized that federal contractors can provide workers with unconscious-bias training without running afoul of a recent executive order that outlawed what the White House described as “divisive” methods of instruction.

Craig Leen, head of the Labor Department’s Office of Federal Contract Compliance Programs, said unconscious-bias training is “perfectly fine,” as long as it “teaches that everyone, based on the human condition, has unconscious biases,” and doesn’t specifically call out a particular race or sex as being inherently biased. Leen addressed the order Friday during an annual conference on labor topics hosted by New York University School of Law.

His comments could provide federal contractors with some clarity around the executive order President Donald Trump signed Sept. 22, which seeks to combat “anti-American race and sex stereotyping and scapegoating.”

The order prohibited federally funded entities, including federal contractors, from conducting workplace training that suggests people of a certain race or gender are “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

Attorneys and representatives for federal contractors expressed bewilderment about how to proceed with such training programs and still comply with Trump’s mandate, believing that unconscious bias training might now be illegal in all forms.

Leen, who runs a DOL subagency that ensures federal contractors fulfill equal employment opportunity and affirmative action obligations, appeared to use his comments during the NYU conference as a means to offer contractors a roadmap for how to conduct unconscious-bias training within the confines of Trump’s order.

The order held that “training employees to create an inclusive workplace is appropriate and beneficial,” but it also outlined penalties for federal contractors that engage in “divisive” training. Contractors that violate the order could have their contracts terminated or suspended, and may be barred from further business with the U.S. government.

On Thursday, Labor Secretary Eugene Scalia reinforced the order during comments at the same conference, saying that some workplace trainings were “really over the line and the order targets that in order to promote more fairness and equality on nondiscrimination laws.”

Trump’s order was published less than three weeks after the White House Office of Management and Budget condemned racial-sensitivity training. It comes amid the national conversation about workplace equality and discrimination triggered by the killing of George Floyd by Minneapolis police.

Companies since Floyd’s death have pledged to do more to combat racism in the workplace, and conducting anti-racism training is an obvious way for employers to take action. The OMB memo that condemned racial-sensitivity training for federal workers and contractors specifically said discussing ideas of white privilege and critical race theory are “counter to the fundamental beliefs for which our Nation has stood since its inception.”

Leen, however, said the unconscious bias trainings he’s seen are “of the more general sense, and I think that’s very positive.”

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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