Clearing up the Confusion Regarding Bias Training for Federal Employees

Clearing up the Confusion Regarding Bias Training for Federal Employees

President Donald Trump recently issued Executive Order Number 13950—Combating Race and Sex Stereotyping. The order forbids federal workplace training that teaches inherent bias. The question that arises, however, is what constitutes inherent bias training.

According to the order, which takes effect on November 21, 2020, inherent bias training is based on an ideology:

This ideology is rooted in the pernicious and false belief that America is an irredeemably racist and sexist country; that some people, simply on account of their race or sex, are oppressors; and that racial and sexual identities are more important than our common status as human beings and Americans.

The order explicitly forbids “race or sex stereotyping” and “race or sex scapegoating.” Specifically, it defines race or sex stereotyping 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.” It defines race or sex 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. It similarly encompasses any claim that, consciously or unconsciously, and by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.

The question for trainers is: How does this new order affect my training? Are there changes I must make to my training to stay in compliance? It would seem to imply that training that categorizes white people or males as inherently racist or sexist would be forbidden, but what training does that? Trainers are not completely in the dark, however, as the Office of Federal Contract Compliance Programs (OFCCP, a division of the Department of Labor) has issued a
FAQ
on the order. Among its questions is this one: “Does Executive Order 13950 prohibit unconscious bias or implicit bias training?” The answer is:

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.

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.

This subtle difference is the key to staying in compliance with the new executive order. Training that a person is inherently biased because of their race or sex is not allowed; training that stereotypes and biases exist is still allowed.

Request for Information

The OFCCP has filed an official request for information regarding the implementation of the order. “Through this request for information, the Department invites the public to provide information or materials concerning any workplace trainings of Federal contractors that involve such stereotyping or scapegoating.” The request provides two methods of contacting the Department of Labor (DOL)—online and via the mail. There is also a hotline (202-343-2008) to report violations of the order. With its request, the DOL hopes to establish a baseline of what constitutes stereotyping and scapegoating. Hopefully, it will publish the results of its inquiry to help trainers stay in compliance.

The DOL request also clarifies the order. For example, it states that “the following concepts qualify as unlawful race or sex stereotyping or scapegoating:”

(e) An individual’s moral character is necessarily determined by his or her race or sex;

(f) 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;

(g) Any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or

(h) Meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race.

What bias training does these things is now a matter for debate. Some would say that no responsible training program does such things and that compliance will therefore not require any changes to a bias training program. But the president thinks that there are trainings that do these things and that they should be stopped.

Further “[e]xamples of impermissible scapegoating or stereotyping include training materials stating ‘that concepts like [o]bjective, rational linear thinking,’ ‘[h]ard work’ being ‘the key to success,’ the ‘nuclear family,’ and belief in a single god are not values that unite Americans of all races but are instead ‘aspects and assumptions of whiteness.'”

Should a bias training now include belief in a single god as a value that unites Americans of all races? Or can that be left out of a bias training as irrelevant to the issues at hand? Time and the request for information will hopefully clarify this and other issues arising from the order. As the DOL states: “This request for information is being published in response to the President’s directives. A purpose of this request for information is to obtain information to formulate OFCCP programming and compliance assistance related to Executive Order 13950.”

The OFCCP will be handling the results of the request for information. The information may take the form of “PowerPoints, photographs, videos, handwritten notes, or printed handouts. OFCCP welcomes all forms of media and data that have in recent years been used, or that may soon be used, in both voluntary and mandatory trainings, workshops, or similar programming.” Additionally, “Materials may be submitted anonymously. However, any materials submitted in response to this request for information may be subject to public disclosure, including any personal information provided.”

Conclusion

Executive Order 13950 may seem to shake up federal employee bias training, but in reality, it may make little change to most bias training programs. By forbidding race or sex stereotyping and race or sex scapegoating, it may simply reinforce existing trainings. But by forbidding the teaching of the concepts that the nuclear family and belief in a single god are not values that unite Americans of all races but are instead “aspects and assumptions of whiteness.” the order may simply be overstepping the boundaries of traditional training and trying to impose a worldview that is simply out of step with bias training. The OFCCP has requested information from interested parties; presumably, it will share what it receives to foster compliance.

About The Author

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Eric Howard is a legal editor who lives in Los Angeles.

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