Diversity & Inclusion

‘Soft Safe Harbor’ May be Possible for Employers Submitting Diversity Materials

The Trump administration’s request that employers doing business with the federal government submit training materials used as part of their diversity, equity, and inclusion efforts is sparking confusion and concern, but some questions are being answered.

Diversity

The Office of Federal Contract Compliance Programs (OFCCP), the division of the U.S. Department of Labor responsible for ensuring that employers doing business with the federal government comply with nondiscrimination laws, released a Request for Information (RFI) on October 21 that asks federal contractors, subcontractors, and employees of contractors and subcontractors to provide copies of training materials having to do with diversity and inclusion.

The RFI follows President Donald Trump’s September issuance of Executive Order (EO) 13950. Titled “Combating Race and Sex Stereotyping,” the order instructs employers to no longer use training that includes what it refers to as “divisive concepts” and what it considers race or sex “scapegoating.”

The RFI does not require employers to submit their materials, but the OFCCP has offered a type of “soft safe harbor” to those who choose to participate, says Nancy Van der Veer Holt, an attorney with FordHarrison LLP in Washington, D.C.

“Essentially, employers who elect to submit their training materials as part of the RFI will receive feedback and compliance assistance from the OFCCP, as necessary,” Holt says. “So long as the employer heeds the OFCCP’s compliance advice, the training will be considered compliant with EO 13950 in the event [the agency] receives an employee complaint.”

Holt says OFCCP Director Craig Leen confirmed during an October 22 town hall meeting that his office won’t take enforcement action against any employer simply on the basis of the content of a training voluntarily submitted as part of the RFI.

“Of course, there are many factors for employers to weigh when deciding whether to submit training materials as part of the RFI, and [employers] should consider discussing options with legal counsel,” Holt says.

Dawn Siler-Nixon, an attorney with FordHarrison LLP in Tampa, Florida, recommends that employers take one of two approaches:

  1. Either wait until the outcome of the presidential election to submit any materials, since the submission period is open through December 1, or
  2. Submit materials anonymously through an attorney or external consultant so the employer can receive compliance assistance from the OFCCP and make any necessary revisions to training materials “to heighten insulation from investigations stemming from employee complaints.”

Impact on Diversity Efforts

Siler-Nixon says the EO has left many employers “perplexed and concerned” about what it means and its impact on their diversity, equity, and inclusion initiatives.

“Many employers have made significant progress, and some employers are taking initial steps to address concerns of inclusivity in the workplace, and the EO is causing some roadblocks in that progress, as employers do not know what to expect,” although Leen did offer some guidance during his town hall, Siler-Nixon says.

Some of the language used in the order is “unusual and ambiguous, making compliance difficult for employers,” Siler-Nixon says. “As a result, some employers are pausing their efforts to await additional guidance from the OFCCP, as well as the outcome of the upcoming presidential election.”

Siler-Nixon says some employers are concerned that employee training complaints premised on the order may be referred to the Equal Employment Opportunity Commission for investigation of a hostile work environment under Title VII of the Civil Rights Act of 1964. “These growing concerns could have a chilling effect on the ongoing and expanding efforts towards greater equity, diversity, and inclusion,” she says.

Siler-Nixon notes that many companies have recently made public commitments to increase the representation of black employees following the death of George Floyd and in response to the Black Lives Matter movement. Two of those companies—Microsoft and Wells Fargo—received communications from the administration questioning those efforts.

“We would anticipate that government contractors and subcontractors who made public commitments to specific increases in demographic representation of Black employees may receive similar inquiries in the coming weeks and months, seeking details of the employer’s plan to achieve the stated goal,” Siler-Nixon says. “We would recommend that employers work with their employment counsel to formulate an appropriate response.”

Legal Challenges?

Some are predicting legal challenges over the EO. Siler-Nixon says she thinks employers will take a wait-and-see approach until the outcome of the election is known. If there is no change in the administration, she expects challenges based on the First Amendment’s guarantee of free speech. Also, the order could be at odds with federal and state laws requiring training on race and sex bias, she says.

“That said, [OFCCP Director] Craig Leen has indicated that employers who submit their training and are found to be in compliance will not face undue investigations based on employee complaints,” Siler-Nixon says. “This should provide some comfort level for employers who are seeking to continue pursuing aggressive initiatives and educate their employee population on key issues related to equity, diversity, and inclusion.”