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By Nick Wakeman

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Nick Wakeman

Anti-bias hotline adds to growing confusion surrounding Trump executive order

Rules are not in place yet to enforce President Trump’s executive order banning certain types of anti-bias and discrimination training by agencies and contractors, but the Labor Department says it opened its complaint hotline because violations of existing anti-discrimination laws can be investigated.

The hotline has drawn complaints because Labor opened it before the rules have been released. But a department spokesman said via email that “some of the conduct discussed in [the executive order] is capable of violating OFCCP’s already-existing anti-discrimination laws.” OFCCP refers to Labor’s Office of Federal Contract Compliance Programs.

That email went on to offer an example of possible conduct that could be reported. “It may violate the law for an employer to ascribe certain character traits – especially negative ones – to employees simply because of their race or sex,” the spokesman wrote.

In addition to the email form, Labor also has a phone number (202-343-2008) that people can call to lodge a complaint and has released a FAQ page about the executive order.

The FAQs are a quick way to familiarizing yourself with Executive Order 13950, even if you disagree with it.

The answer to question one -- when does the executive order become effective -- offers a few tidbits. The executive order is effective immediately, hence the reason Labor so quickly opened its hotline. But requirements for contractors and subcontractors requirements will apply to contracts that are entered into 60 days after the executive order, which Labor puts at Nov. 21.

For its ability to investigate complaints right now, Labor refers to Executive Order 11246 that was signed by President Johnson on Sept. 24, 1965. I included the exact date because that is when I turned two years old. Johnson’s executive order and related legislation banned the practice of employment discrimination by federal contractors on the basis of sex or race.

Labor's FAQs also get at the Trump administration’s argument that training should not paint individuals as racist or sexist solely because they are part of a particular race. This gets at the Trump administration’s opposition to concepts such as unconscious bias and systemic racism.

The Sept. 22 executive order has caused a lot of angst among federal contractors, many of whom have been pushing diversity and inclusion as central values of their companies. Many of these actions pre-date the killing of George Floyd in May and the rise of the current social justice movement.

The Office of Federal Procurement Policy is holding what it calls a “listening session” with contractors later this week to take questions and hear concerns from industry. Hopefully, they will share some information on the interim rule set to come out next month that will spell out the contract requirements to enforce the Trump executive order.

As some in industry have told me, right now there are more uncertainties and confusion than certainties surrounding the executive order and how it will be implemented.

For example, the Labor Department FAQs indicate the contract requirements will apply to new contracts. But a Sept. 28 memo from the Office of Management and Budget says that “every government contract must include the provisions required by Section 4 of the E.O.” E.O. stands for executive order.

A few paragraphs later, the OMB memo also says that future contracts must include the provisions in Section 4.

So is it all contracts or just future contracts? If it is all contracts, will that mean that every existing contract will need to go through a contract modification process? Or will the government use a class deviation to effectively modify all contracts at once?

That’s just one example.

There also are concerns about the inventory requirement. Later this week, Labor is expected to issue a Federal Register notice asking contractors to provide information on the diversity training and workshops they provide, including copies of the training. How will this information be collected and what does “copies” mean?

There are no legal challenges yet to the executive order and those won’t occur until someone -- mostly likely a contractor -- can demonstrate some kind of damage because of the executive order.

Damage almost always means money, so if the executive order leads to cancelled contracts or partially cancelled contracts, or suspensions or debarments, then we’ll likely see lawsuits filed in federal court. Cancellations, terminations, suspensions and debarments are all mentioned the executive order as tools for enforcing the executive order.

Until then some action is taken beyond the executive order, there is little companies can do to proactively fight back. Right now, companies have to wait and see if they are hurt. Some company is going to get hurt before they can take action.

If I’m wrong about this, please let me know.

Posted by Nick Wakeman on Oct 19, 2020 at 1:41 PM

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