DOL Finalizes Rule Requiring Internal Approval of Evidence Prior to Issuing Preliminary Notices of Discriminatory Bias Claims Against Contractors

Contractors have more clarity on the Office of Federal Contract Compliance Programs (OFCCP) investigation into discriminatory bias claims, as a final rule is published outlining consistent parameters and approval protocol for evidence. These new developments should equip contractors with additional information prior to the agency issuing a Notice of Violation, allowing contractors an opportunity to refute any initial determination made by the OFCCP or seek prompt resolution.

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Civil Rights Organizations File Lawsuit Seeking to Halt President Trump’s Executive Order Combating Race and Sex Stereotyping

The controversy surrounding President Trump’s “Executive Order on Combating Race and Sex Stereotyping” continues to snowball. After the U.S. Chamber of Commerce and 150-plus business organizations sent a letter to the president contesting the Order and requesting that it be withdrawn, NAACP attorneys took contractor objections a step further, launching a class action lawsuit on behalf of the National Urban League, the National Fair Housing Alliance and others similarly situated. Filed on October 29, 2020, the suit called the Order “an extraordinary and unprecedented act by the Trump Administration to undermine efforts to foster diversity and inclusion in the workplace” and further challenged the federal directive on constitutional grounds.

For the full alert, visit the Faegre Drinker website.

OFCCP Issues Request for Information Supporting President Trump’s Executive Order on Combating Race and Sex Stereotyping

Executive Order 13950 first made waves in September, with concerns that its stated goal of stamping out “offensive and anti-American race and sex stereotyping and scapegoating” might curtail federal contractors’ ability to provide diversity workplace trainings. After publishing guidance clarifying the particulars of the Executive Order and launching a hotline to receive complaints, the Office of Federal Contract Compliance Programs is now seeking comments, information and materials from the public regarding potentially noncompliant trainings. The agency’s Request for Information was published in the Federal Register on October 21, 2020.

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OFCCP Issues FAQs on Executive Order Combating Race and Sex Stereotyping

The Office of Federal Contract Compliance Programs has issued nine Frequently Asked Questions (FAQs) to address Executive Order 13950, which is intended “to combat offensive and anti-American race and sex stereotyping and scapegoating.” The FAQs include a range of topics — from the effective date of the Executive Order and examples of race or sex stereotyping or scapegoating, to how to file a complaint for unlawful training programs.

For the full alert, visit the Faegre Drinker website.

Update: California Leads the Way for Pay Data Collection and Reporting

On September 30, 2020, California Governor Newsom signed into law Senate Bill 973, which requires California private employers with 100 or more employees to submit an annual pay data report to the state’s Department of Fair Employment and Housing beginning on March 31, 2021. See our previous alert for additional details. We recommend that employers with 100 or more employees in California work with legal counsel as soon as possible to conduct privileged pay audits prior to collecting pay data and submitting the report to California.

OFCCP Launches Hotline to Receive Reports Regarding Contractors’ Prohibited Race and Sex Stereotyping

The U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) announced its new hotline and email address to provide a forum to report noncompliance with Executive Order 11246 as well as President Trump’s recent executive order, which curtails certain employee diversity and inclusion training.

As recently reported, on September 22, 2020, President Trump issued an unprecedented “Executive Order on Combating Race and Sex Stereotyping” (Executive Order 13950) in an effort to “to combat offensive and anti-American race and sex stereotyping and scapegoating” through a variety of measures. Executive Order 13950 significantly limits the diversity trainings federal contractors may offer and requires contractors to add contract provisions prohibiting “race and sex stereotyping” in their subcontracts and purchase orders, among other requirements. Executive Order 13950 also directed the OFCCP to create a hotline where employees could report suspected violations of Executive Order 13950’s requirements, in addition to violations of long-standing Executive Order 11246, which prohibits discrimination based on race, color, religion, sex, sexual orientation, gender identity and national origin, and prohibits inquiring about, discussing or disclosing one’s compensation or the compensation of others.

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