OFCCP Publishes RFI Race and Sex Stereotyping and Scapegoating

This morning OFCCP released RIN 1250-ZA01 “Request for Information; Race and Sex Stereotyping and Scapegoating” (RFI) as was required by the new Executive Order 13950 and hosted a brief stakeholder call; both are described below. Additionally, a new Executive Order landing page and updated FAQs were released. Please note that the RFI is completely voluntary.

Request for Information

This RFI seeks comments, information, and materials from the public relating to workplace trainings that involve race or sex stereotyping and scapegoating. A purpose of the RFI is “to formulate OFCCP programming and compliance assistance related to Executive Order 13950”. The RFI notes that through the Executive Order OFCCP is instructed to request information “to gain a better understanding regarding potentially unlawful training materials that are being used by Federal contractors and subcontractors.”

It is important to note that sending information and materials related to training, or comments in general, is voluntary. Specifically the RFI states: “Federal contractors and subcontractors questioning whether their workplace trainings, workshops, or similar programs are compliant with Executive Order 13950 or Executive Order 11246 are encouraged to voluntarily submit information and materials in response to this request for information.” Also notable, information submitted may be subject to public disclosure, including any personal information.

The RFI notes that OFCCP welcomes all forms of media and data when submitting training materials that were used in both voluntary and mandatory trainings, workshops, and similar programming, such as:

  • PowerPoints,
  • photographs,
  • videos,
  • handwritten notes, or
  • printed handouts.

Another key purpose of the RFI is to provide compliance assistance: “OFCCP will provide compliance assistance as requested to Federal contractors and subcontractors that voluntarily submit such information or materials.”

The RFI also discusses the new Hotline, previously described in this blog. The Hotline was established per the Executive Order for employees and other concerned members of the public to confidentially report information to the OFCCP regarding non-compliant information or materials.

Comments and/or materials must be submitted by December 1st through the Federal eRulemaking portal (www.regulations.gov) or via mail addressed to: Tina Williams, Director, Division of Policy and Program Development, Office of Federal Contract Compliance Programs, 200 Constitution Avenue NW, Room C–3325, Washington, DC 20210.

Stakeholder Call

Following the release of the RFI the OFCCP held a “Stakeholder call” where Director Leen reviewed questions that have come up about the executive order and RFI thus far. Attendees were in listen-only mode and could not ask questions during the call.

Two questions of particular importance covered in Leen’s presentation were:

  1. Can enforcement action be taken against a company in responding to the RFI?
    • Director Leen: “Please take a look at page 8-9 of the RFI. If contractors provide examples of training programs, that will be treated similarly as if they come seeking compliance assistance. We will not take action on the information, instead will use it to develop compliance assistance materials. It is possible the agency will reach out and offer compliance assistance. However, if the information is provided to the agency and gives compliance assistance and the company does not take it - and then the agency finds this out during a complaint or audit review the agency will then take action at that point.”
  2. What will submitted information be used for?
    • Director Leen: “To develop additional FAQs and guidance”

Leen noted that OFCCP is well aware the Executive Order goes into effect late November, however OFCCP is accepting complaints "now" through the hotline. Any complaints will be processed in accordance to current guidelines to see if it raises an issue under Executive Order 11246 even before 13950 goes into effect.

Leen also communicated that Executive Order 13950 brings the focus to non-discrimination to training programs. Companies are still required to take affirmative action under 11246; likewise, companies can and should continue D&I efforts as well. Contractors should ensure D&I efforts, which are encouraged, comply with non-discrimination and do not engage in stereotyping / scapegoating.

DCI will be providing a guidance document on the Executive Order and associated RFI to our clients. If you are not a client but need more information, please contact us.

By Rosemary Cox, Associate Principal Consultant, and Amanda Bowman, Associate Principal Consultant, at DCI Consulting Group

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