Discrimination
Conflicting Messages: An Executive Order vs. Affirmative Action
The EEOC has encouraged employers to voluntarily modify employment practices and systems which create barriers to equal employment opportunity, without waiting for litigation or formal government action. The EEOC has said that the principle of nondiscrimination in employment because of race, color, religion, sex or national origin and the principle that each employer should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination are mutually consistent and interdependent methods of addressing social and economic conditions which were the reasons why Title VII was originally enacted. EEOC regulations enacted in 2012 stated that “… persons subject to Title VII must be allowed flexibility in modifying employment systems and practices to comport with the purposes of Title VII. Correspondingly, Title VII must be construed to permit such voluntary action, and those taking such action should be afforded the protections against Title VII liability which the [EEOC] is authorized to provide…” Employers, in carrying out their commitments not to discriminate on the basis of race, color, religion, sex or national origin often provide training to employees and supervisors and hold supervisors and managers accountable for complying with EEO policies. If the employer has an affirmative action plan, training is an important component of the plan to further ensure that those persons responsible for hiring, promoting and disciplining employees are aware of the employer’s commitment to create increased job opportunities for minorities and women. Since September 24, 1965, the federal government has required that federal contractors adopt non-discriminatory practices in hiring and employment and affirmative action plans. If a company wants to do business with the federal government, they must have an affirmative action plan. Many federal contractors offer training as part of their commitment to non-discrimination and affirmative action. On September 22, 2020, President Trump issued an Executive Order that has thrown a monkey wrench into the training programs federal contractors implement to advance non-discrimination and affirmative action. Executive Order 13950 bars federal contractors from conducting “divisive” racial sensitivity training. The Executive Order states that many people are “pushing” an ideology that is rooted in the “pernicious and false belief that America is an irredeemably racist and sexist country.” The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued guidance on Wednesday, October 7, 2020, to clarify President Trump’s September 22 Executive Order. The guidance states that unconscious or implicit bias training is prohibited to the extent it teaches or implies that an individual, by virtue of his or her race, sex, and/or national origin, is racist, sexist, oppressive, or biased, whether consciously or unconsciously. The guidance also states that training is not prohibited if it is 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. President Trump’s Executive Order makes training based on implicit bias illegal – federal contractors must immediately cease training which is deemed to be divisive racial sensitivity training. Labor Secretary Eugene Scalia stated that “particular types of training…that are highly offensive, such as seminars where people are told that they are racist because, for example, they are White, or that people being color blind should regard one another as equal is wrong and offensive.” The OFCCP has created a hotline for complaints about training. Companies that offer training which is inconsistent with the Executive Order can have their federal contracts canceled, terminated or suspended, in whole or in part. Examples of workplace training explained in the guidance that are off-limits include a Treasury Department seminar encouraging employees to avoid color blind narratives, as well as materials from the Argonne National Laboratories discussing systemic racism. As part of the government’s effort to end training now deemed to be unlawful, the OFCCP issued a Request for Information on October 21st asking for comments, information and materials from the public relating to workplace trainings that involve race or sex-stereotyping or scapegoating. The Request for Information is directed to contractors and their employees, and asks for 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.” Confusion and Uncertainty Executive Order 13950 has created great confusion among employers as to what types of training are and are not permissible. The description of what training is acceptable vs. what training is unlawful is blurry at best. Although many employers are not federal contractors, we can expect that the principles described in the Executive Order will trickle down to non-federal contractors and employers will begin to modify their messaging and training regarding systemic racism. The U.S. Chamber of Commerce has indicated that they have heard from many companies who are suspending all diversity and inclusion training. It can be expected that since the OFCCP is asking employees to report to the OFCCP about training which the employees deem to be inappropriate, many employers are going to be reluctant to offer any training at all. To add to the confusion, the U.S. Department of Labor’s OFCCP has started at least two investigations of major American companies to determine whether there is a violation of previous executive orders. In early October, the OFCCP opened a probe into whether Wells Fargo’s plan to double its Black leadership conflicts with the bank’s anti-discrimination obligations. Wells Fargo’s CEO, Charlie Sharf announced in June that Wells Fargo intended to increase diversity in the top ranks. The OFCCP has stated that this objective “appear[s] to imply that employment action is being taken based on race.” Interestingly, Wells Fargo recently settled an OFCCP claim of hiring discrimination in 34,000 instances and agreed to pay $7.8 million to resolve these allegations. In that case, the OFCCP found that there were significant disparities against Black applicants in the company’s hiring process. As part of the settlement, Wells Fargo is to track the race of applicants and the race of those employees hired to help to monitor racial discrimination. One would think that the goal to double the number of minorities in leadership would be consistent with the settlement of the claim of past hiring bias but apparently, it is not. A similar investigation is also ongoing at Microsoft, which announced a goal of doubling its Black leadership. It is unknown how many other companies have received similar letters from the OFCCP. Many major employers have made public statements in light of the George Floyd protests pledging to increase diversity and inclusion initiatives. Our government is sending out mixed messages concerning the goal of increasing diversity in America’s workforce and designing a more inclusive work environment. While many employers are attempting to create systems to enhance and encourage the hiring and promotion of minorities and women, the government seems to be pushing back these efforts. Affirmative action, diversity and inclusion cannot be accomplished without the training of employees and supervisors. Employees need to understand that racism and sex discrimination can be systemic and can occur without specific individual intent. The government has indicated that, at least for federal contractors, efforts to educate employees on systemic racism is illegal. Without education, there will be more challenges in achieving diversity and inclusion in corporate America. Meanwhile, federal contractors must immediately review their training programs and determine if their training programs are inconsistent with Executive Order 13950. Federal contractors must evaluate how much legal risk they are willing to accept by announcing goals and objectives in increasing diversity and addressing race-based discrimination in their company.
