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One Giant Step Back for Sensitivity Training

October 8, 2020

With the unrelenting impact of COVID-19 on businesses and the presidential campaign in full swing it was easy to miss President Trump’s recent order barring certain types of sensitivity training for federal contractors.  The Executive Order was issued on September 22, 2020, and builds on a September 4th White House memorandum taking to task some federal agencies for providing “divisive, un-American” sensitivity training sessions centered on institutional racism.  The Executive Order goes into effect November 21, 2020.  This past week, in the wake of the President’s Executive Order, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (the “OFCCP”) issued its first guidance on the matter.

Most Americans first learned of the Executive Order as it came front and center during the first Presidential debate when the President defended his actions, “We have to go back to the core values of this country,” Trump said. “They were teaching people that our country is a horrible place. It’s a racist place. And they were teaching people to hate our country. And I’m not going to allow that to happen.”

The Executive Order prohibits federal contractors from holding sensitivity training that is considered “divisive” in nature.  Concepts which are banned include, teaching that people are oppressors simply because of their race or sex, that America “is fundamentally racist or sexist,” and promoting the concept of “race or sex scapegoating.” 

The OFCCP guidance defines the concept of scapegoating as “assigning fault, blame, or bias to a race or sex, or to members of a race or sex, because of their race or sex.”  Additionally, the new OFCCP’s guidance makes clear several types of unconscious and implicit bias training are now prohibited, “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.”

Finally, the guidance discusses the creation of a “hotline” for individuals to use to report violations of the Executive Order.  Companies found in violation of the Executive Order risk facing various degrees of discipline, including having their contracts suspended and/or terminated.

The Executive Order comes at a time when most of the country is leaning the other way with regards to many of these concepts.  Many private and public sector employers have recently implemented training programs to embrace concepts stemming from the #MeToo and Black Lives Matter movements, as well as recent advancements achieved in the LGBTQ+ community.

Brody and Associates offers sensitivity training to small and large publicly and privately held companies.  We believe training on these topics is crucial and have programs that comply with all laws related to such training.