Welcome

‘Anti-American’ Training Hotline Set Up for U.S. Contractors (2)

Sept. 29, 2020, 3:32 PM; Updated: Sept. 30, 2020, 1:19 PM

The U.S. Labor Department has set up dedicated telephone and email hotlines enabling employees of federal contractors to file complaints about “offensive and anti-American race and sex stereotyping and scapegoating,” in workplace training, an action that follows President Donald Trump’s recent executive order.

The DOL’s Office of Federal Contract Compliance Programs announced the rollout of those dedicated channels on Monday.

Executive Order 13950, which Trump signed Sept. 22, defines “divisive” training as that which implies the U.S. is “fundamentally racist or sexist,” or that an individual is “inherently racist, sexist, or oppressive, whether consciously or unconsciously,” among other definitions.

“Many people are pushing a different vision of America that is grounded in hierarchies based on collective social and political identities rather than in the inherent and equal dignity of every person as an individual,” Trump’s order said. “They are designed to divide us and to prevent us from uniting as one people in pursuit of one common destiny for our great country.”

Federal contractors that don’t comply with the directive could be blocked from pursuing future government contracts, and existing contracts could be terminated or suspended, it said. But it wasn’t immediately clear how the Labor Department will investigate grievances received over the new channels, and attorneys say the process could fuel litigation.

Trump’s mandate comes at a time when more workplaces are encouraging anti-racism training, following the killing of George Floyd by Minneapolis police.

The edict prompted immediate outcry from both employer representatives and worker advocates. Critics contend it could outlaw necessary unconscious-bias training for workers employed by federal contractors, and further burden the OFCCP, which is already struggling to handle its current volume of complaints.

The OFCCP is explicitly tasked with enforcing equal opportunity, affirmative action, and anti-discrimination laws among federal contractors’ workforces.

A civil rights watchdog, the U.S. Commission on Civil Rights, said in a report last year that the OFCCP has limited capabilities, and can only annually audit about 1% to 2% of federal contractors due to low staff numbers.

“The new EO will cause OFCCP to focus more attention on non-discrimination in training programs, and ensuring such training programs are consistent with the new EO and do not engage in race or sex stereotyping or scapegoating,” a DOL spokesperson said in an email. “Federal contractors should review their training programs to ensure compliance.”

Enforcement Action?

Trump’s order said the agency must “investigate complaints,” and that “the Department shall take appropriate enforcement action and provide remedial relief, as appropriate.”

The DOL spokesperson said the agency’s “Division of Policy and Program Development will monitor the hotline. Complaints requiring an investigation will be sent to the appropriate Regional and District Offices for review and handling. The hotline accepts complaints 24/7. Callers should leave a message or send an email. They will receive a response confirming receipt soon after.”

The complaints will be handled “similar to complaints filed traditionally” under other statutes and orders the agency enforces, according to DOL.

“How they will execute the order remains to be seen,” said Annette Tyman, a partner with Seyfarth Shaw in Chicago. “Contractors are taking this seriously. They have a lot of questions.”

Separately, the White House Office of Management and Budget on Monday set a Nov. 20 deadline for federal agencies to furnish it with a breakdown of their fiscal 2020 spending on diversity training, including awards to specific contractors.

Agencies should provide information about training conducted by either their own employees or outside vendors, OMB Director Russell Vought said in a memo. “The data should be presented so that all awards to an individual contractor are viewable together,” he wrote.

The OFCCP will also publish within 30 days a separate request for “information from Federal contractors, Federal subcontractors, and employees of Federal contractors and subcontractors regarding the training, workshops, or similar programming provided to employees,” Trump’s order said.

That information should include “copies of any training, workshop, or similar programming having to do with diversity and inclusion as well as information about the duration, frequency, and expense of such activities,” according to the president’s order. The demand is similar to OMB’s, but different in that it’s targeting federal contractors, not government agencies.

That information collection will likely be challenged in court, attorneys previously told Bloomberg Law.

“There is some vagueness in the EO that might be clarified by future development,” T. Scott Kelly, a shareholder with Ogletree Deakins in Birmingham, Ala., said.

Legal Implications

The smart approach for contractors is to hold back on changing corporate training systems before the request for information collection is released, particularly given the impending presidential election, Kelly said.

“Do they want to make changes now, or do they want to wait a few more weeks for OFCCP information, constitutional challenges, and election results?” he said. “There’s a lot we don’t know yet.”

Types of training deemed “divisive” under the order, and therefore outlawed, could include unconscious-bias training—the very training that’s been on the upswing for workers, particularly over the past several months, as racial unrest has erupted in cities across the U.S. in the form of protests, riots, and clashes with state and federal enforcement agents.

Chris Wilkinson, a senior counsel with Perkins Coie who represents employers in a variety of employment law and compliance matters, said federal contractors “have taken very thoughtful approaches to workplace training in light of the social justice movement.”

“This executive order muddies the waters, as what counts as ‘race or sex stereotyping’ is fairly ambiguous,” he said. “That works to increase the compliance burdens of contractors. Perhaps more importantly, contractors should not be blind to the potential for employee complaints.”

Sections of the order allow “employers to continue to promote inclusion, without attributing blame based on race or gender,” Tyman said. “It’s a wide-reaching order.”

Basis for Lawsuits

But it could also be an impetus for litigation. Workers could allege that their concerns about training amount to harassment, and therefore are covered by Title VII of the 1964 Civil Rights Act, Valerie Hoffman, a partner with Seyfarth Shaw, said.

“Lawsuits in the past have alleged that diversity training constitutes harassment under Title VII,” Hoffman said. “It’s possible that this could stimulate those lawsuits,” or form a basis for the Department of Justice to bring lawsuits under the order or Title VII, she said.

The American Association for Access, Equity and Diversity, an organization of equal opportunity, diversity, and affirmative action professionals, said the new hotline will inundate OFCCP with complaints that fly “in the face of the First Amendment.”

The group criticized the Trump order in a statement, saying it’s the “antithesis of liberty. It is a paean to authoritarianism clothed in the most aggressive assault on civil rights and free speech in recent history.”

(Updated with DOL comment in 10th and 12th graphs. Story originally published Sept. 29. )

To contact the reporters on this story: Paige Smith in Washington at psmith@bloomberglaw.com; Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

To read more articles log in.

Learn more about a Bloomberg Law subscription.