The September 22, 2020, issuance of Executive Order 13950 limiting federal government contractors’ ability to conduct diversity, inclusion, and unconscious or implicit bias training has roiled the contractor community. Although the Executive Order provided broad categories of themes that it prohibits as subjects of diversity training, it does not provide contractors with substantial guidance as to what specific types of training the Executive Order prohibits. On October 7, 2020, the Office of Federal Contract Compliance Programs (OFCCP) issued an FAQ guidance document regarding the Executive Order, which provides some, but far from sufficient, guidance to contractors.

OFCCP’s FAQ guidance largely quotes directly from the Executive Order without providing additional insight into the Executive Order’s terms. That said, the FAQ does clarify two points:

First, even if a federal contractor does not have a government contract subject to the Executive Order (generally, one issued after November 21, 2020), “OFCCP may investigate claims of sex and race stereotyping pursuant to its existing authority under Executive Order 11246.” To that end, OFCCP earlier established a hotline for employees of contractors to submit complaints of prohibited diversity training programs. Accordingly, all federal contractors should ensure their training programs comply with the Executive Order, regardless of whether their contracts contain the Executive Order’s prohibition.

Second, OFCCP addressed the scope of unconscious or implicit bias trainings. The FAQ clarifies that such trainings are not necessarily prohibited. However, bias trainings cannot single out a single group as being unconsciously or implicitly racist, sexist, oppressive, or biased. Instead, the training must be “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.”

Although OFCCP’s FAQ may not have provided the details sought by contractors, a September 28, 2020, memorandum from the Office of Management and Budget (OMB) regarding similar restrictions on federal sector diversity trainings provides some additional guidance. OMB emphasizes that trainings must promote “fair and equal treatment.” The memorandum advises agencies to search for concepts like critical race theory, white privilege, intersectionality, systemic racism, positionality, racial humility, and unconscious bias as potentially prohibited.  Although these are also broad concepts, the OMB memorandum provides some additional guidance on what contractors should look for and avoid. Notably, neither OMB nor OFCCP addresses the thornier question of what contractors must do if employees themselves discuss prohibited topics or themes during discussion portions of trainings.

Given the lack of clear guidance to date from the Executive Order, OFCCP, OMB, or any other official source, contractors should conduct a close review of any diversity and inclusion training materials they use to ensure that they are consistent with the “fair and equal treatment” principle and do not include the themes described in the Executive Order. The effect of the Executive Order remains an evolving issue that contractors should closely follow.