Under the new RFI, contractors may submit comments and other information to OFCCP by December 1, 2020, but any submission of information is strictly voluntary. As discussed below, prior to making any submission, contractors should consider carefully the nuances of the EO and RFI and the potential implications of making a voluntary submission.
Scope of the RFI
- The RFI requests information or materials concerning any workplace trainings of federal contractors that involve “race or sex stereotyping or scapegoating,” as defined in the EO. Subsequent guidance from OMB indicates relevant trainings may include key terms such as “critical race theory,” “white privilege,” “intersectionality,” “systemic racism,” “positionality,” “racial humility,” and “unconscious bias.”
- The RFI also requests “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.”
- The RFI further requests responses that indicate whether there have been complaints concerning trainings, disciplinary actions taken in response to complaints made about the trainings, responsible parties for developing trainings, whether the trainings are mandatory or optional, and the portion of a company’s annual mandatory or optional trainings that relate to diversity.
- The RFI incorporates the EO’s list of “divisive concepts” that qualify as “unlawful race or sex stereotyping or scapegoating,” including that “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously” and that “any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.”
Information Submission and Potential Public Disclosure
Although OFCCP has pledged to “keep information and materials submitted under this process confidential under Exemption 4 of the Freedom of Information Act to the maximum extent permitted by law,” the RFI also makes clear that any submitted materials may become a matter of public record, so submissions should be carefully reviewed before they are provided to OFCCP. The RFI further cautions that submissions should not provide information or materials “prohibited by law from disclosure under a valid confidentiality agreement, information or materials that are trade secrets, information or materials that are copyrighted, or information or materials that contain individual medical information or personally identifiable information.” Because response to the RFI is voluntary, it is unlikely that a submission would fall within an exception to an otherwise applicable confidentiality or non-disclosure requirement.
Materials may be submitted at the Federal eRulemaking portal, or by mail or phone. Full details for submission are included in the RFI.
Enforcement Actions and Safe Harbor
Under the EO, the Department of Labor has authority to “take appropriate enforcement action and provide remedial relief, as appropriate.” The OFCCP will provide compliance assistance to federal contractors and subcontractors who voluntarily submit information. Consistent with law, the OFCCP will exercise its enforcement discretion and decline to take enforcement actions against contractors that voluntarily submit information, so long as the contractor “promptly comes into compliance” with the EO if so directed by OFCCP. Enforcement action may be taken, however, if OFCCP receives “unlawful” training material from another source, or if contractors who voluntarily provided information do not promptly come into compliance after receiving direction to do so from OFCCP.
While the EO’s requirements are scheduled to be incorporated into new contracts beginning November 21, 2020, contractors who voluntarily choose to provide information in response to the RFI may do so now. Of course, whether to provide information requires careful consideration of the potential benefits and drawbacks of submitting to OFCCP review, a decision which should be made in consultation with qualified counsel. Given the potential legal, political, and practical hurdles to implementing and enforcing the EO, it remains to be seen whether the RFI’s safe harbor provision will be a sufficient incentive for contractors to come forward voluntarily — or whether a “safe harbor” will even be necessary to mitigate the impact of the EO. What is clear, however, is that there will be further action on this issue, and we will continue to watch for new developments throughout 2020.