Employers are feeling free to resume their diversity training plans now that the U.S. Department of Labor (DOL) has reportedly suspended enforcement of President Donald Trump’s Executive Order (EO) restricting how certain employers can conduct training aimed at combating discrimination.
Reports that the DOL’s Office of Federal Contract Compliance Programs (OFCCP) would suspend enforcement of EO 13950 follow issuance of a nationwide injunction against the EO on December 22, 2020. In addition, the incoming administration of President-elect Joe Biden is expected to formally rescind the order.
The EO, issued on September 22, targeted programs teaching what it called “divisive concepts” and what it considers race or sex “scapegoating.” After release of the order, the OFCCP asked federal contractors, subcontractors, and employees of contractors and subcontractors to provide copies of training materials so they could be investigated.
The order affected the diversity, equity, and inclusion (DE&I) training plans of federal employers as well as private employers doing business with the federal government. It was widely criticized by employers.
“Based on the fact that the DOL has suspended enforcement of EO 13950 and is not investigating any of the complaints, most contractors will reinstate their originally planned DE&I programs about which they had concerns as a result of EO 13950,” says Nita Beecher, an attorney with FortneyScott in Washington, D.C., and an editor of Federal Employment Law Insider.
Beecher says she hasn’t heard anything in recent days about what seems to be the demise of the order, “but I know contractors were very upset about the EO especially in light of what they were rolling out” after the Black Lives Matter protests during the spring and summer.
Jacob M. Monty, an attorney with Monty & Ramirez LLP in Houston, Texas, also expects federal contractors to reverse course if they implemented the EO. He points out the U.S. Department of Defense already had announced it would no longer enforce parts of the order.
Advice for Employers
Monty advises employers that want to be proactive about developing a discrimination-free environment to ensure adequate training is in place. The main goal should be “to foster a workplace where peers demonstrate mutual respect,” he says. “Ignorance is not an excuse for unfair treatment.”
Monty also says it’s important for employers to counter detrimental workplace behaviors. “Although employers may question the effectiveness of diversity training, such training can be implemented to shift from being a preventative measure into being a meaningful effort to eliminate unlawful biases in the workplace,” he says.
Beecher urges employers to make any training program part of an overall DE&I effort and make sure programs have the support of senior leadership.
Beecher also says that “training by itself does not really change hearts and minds but is important as part of an overall DE&I initiative.”
M. Jarrad Wright, an attorney with DiMuroGinsberg P.C. in Alexandria, Virginia, also urges employers to “make sure to use best practices when implementing programs to ensure that the programs meet company policies and accepted best standards for such programs.”
“Companies should also be aware that the turnover in government in state and federal levels is likely to lead to new regulatory requirements moving forward, so companies should keep abreast of those changes,” Wright says. As for EO 13950, he says it is “effectively over.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.