SMACNA contractors doing Federal work should take note of a new Executive Order signed by President Trump that may impact their required harassment and discrimination trainings (affirmative action).
In his September 22, 2020, Executive Order on Combating Race and Sex Stereotyping, President Trump mandated sweeping changes to the content of any affirmative action trainings conducted by Federal contractors in conjunction with their Affirmative Action Plans (AAPs). These new requirements go into effect for qualifying Federal contracts entered into or renewed after November 21, 2020.
Most private entities doing business with the Federal Government must maintain an Affirmative Action Plan (AAP) identifying methods they will use to increase hiring and promotion of protected class individuals (e.g., women and minorities). AAPs usually include training for managers and employees which typically focus on eliminating unconscious bias by the decision-makers to combat systemic barriers facing members of protected classes in regard to employment and advancement. SMACNA contractors can find additional information on their Affirmative Action obligations through SMACNA’s Guide to EEO Compliance.
No Talk of “Divisive” Concepts Regarding Race/Sex
The Executive Order identifies concepts it labels as “divisive” and must be removed from any training program conducted by a Federal contractor. Contractors that fail to comply with this directive risk significant penalties, including cancellation/termination of the contract and ineligibility for future contracting opportunities.
The Order prohibits trainings that cover any of the following concepts:
One race or sex is inherently superior to another race or sex;
An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
An individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
Members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
An individual’s moral character is necessarily determined by his or her race or sex;
An individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex;
Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.
The Order additionally prohibits training or instruction regarding “race or sex stereotyping,” defined as “ascribing character traits, values, moral and ethical codes, privileges, status, or beliefs to a race or sex, or to an individual because of his or her race or sex.”
Finally, the Order prohibits “race or sex scapegoating,” defined 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.” Thus, trainings that members of any race or gender are inherently racist or sexist, or are inclined to oppress others, are prohibited.
Shifting the Focus from Equity to “Merit-Based”
Anti-bias training undertaken in accordance with AAPs has almost always included a component instructing managers not to stereotype other persons based on their protected class status and to refrain from allowing race or gender to handicap individuals in search of employment or advancement. This meant encouraging managers to recognize that certain systemic, economic and/or social factors may have impacted access to opportunity, and to think more expansively about a candidate’s credentials. In short, this training emphasized equity and opportunity.
The Order now essentially blacklists the concepts of “privilege” or “inherent biases” from being discussed during these trainings, preventing contractors from training employees to account for any advantage an individual has because of their race or gender. Trainings under the new Executive Order must focus solely on the candidate’s comparative merit on paper.
The timing of this order could be problematic for some contractors. The new requirements are scheduled to go into effect after the upcoming November election, but before the January 20, 2021, inauguration date. If President Trump is not reelected, it is reasonable to believe that a Biden administration would repeal this Order. However, with a two-and-a-half-month gap between election and inauguration, contractors needing to renew in that period may have to choose between modifying their training programs now or risking that enforcement of this new Order will be sufficiently tepid as to not impair their chances at contract renewal.
Two Additional Areas of Concern for All Employers
The Executive Order poses another concern, one which apply to all employers, by directing the attorney general to “assess the extent to which workplace training that teaches the … [foregoing] concepts … may contribute to a hostile work environment and give rise to potential liability under Title VII …” It is not clear how this assessment will take place, but it does seem to signal the possibility for increased government intervention for employers deemed responsible for providing training inconsistent with the Executive Order’s goals.
Moreover, the Office of Federal Contract Compliance Programs (OFCCP) has announced the creation of a hotline for employees to complain about workplace training that breaches the Executive Order’s intent to “combat offensive and anti-American race and sex stereotyping and scapegoating.” These complaints may trigger investigations and possible enforcement actions. Given the intensity of the current political environment, as well a historic pattern of resistance to equity training on the part of many employees, this hotline may be ringing off the hook in the coming months.
This Executive Order greatly changes the paradigm for Federal contractors, enough so that legal challenges are expected very soon. Some parties have suggested that the Order infringes on constitutional protection of speech, while others question whether the Order impermissibly ignores procedural requirements for changing contractor obligations.
SMACNA will continue to monitor the situation and advise members as developments happen.