Trump’s Order Does Not Ban All Unconscious Bias Trainings

Trump’s Order Does Not Ban All Unconscious Bias Trainings

On Friday, October 2, 2020, the Director of the U.S. Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) stated that federal contractors can provide unconscious bias training under President Trump’s Executive Order “as long as the training teaches that everyone, based on the human condition, has unconscious biases and does not specifically call out a particular race or sex as being inherently biased.”

The Director reportedly used his comments during a New York University Law School conference to offer guidance to federal contractors on how to provide unconscious bias training in compliance with the order. In fact, the Director said unconscious bias training is “perfectly fine.” Notably, the order also states that “training employees to create an inclusive workplace is appropriate and beneficial.” 

The Executive Order (September 22)

President Trump’s Executive Order, effective November 1, 2020, seeks to prohibit employee training that “labels entire groups of Americans as inherently racist or evil.” The order prohibits federal agencies and contractors from implementing workplace training which teaches 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
• meritocracy or traits such as a hard work ethic are racist or sexist or were created by a particular race to oppress another race

Under the order, federal contractors must post a workplace notice that will be provided by the agency contracting office. Federal contractors must also include certain provisions of the order in their subcontracts. Finally, the OFCCP has been directed to create a hotline and investigate complaints of prohibited training programs.

The Memo (September 28)

Shortly after President Trump issued the order, the Office of Management and Budget issued a memo to provide clarification for federal agencies and contractors on the types of workplace training banned under the order.

The memo claims that some federal agencies were providing employee training that “stereotype” and “scapegoat” “specific groups of people.” Importantly, the memo notes that “[t]these diverse trainings constitute a subset of a larger pool of federal agency trainings held to promote diversity and inclusiveness” (emphasis in original).

The memo instructs federal agencies to identify all agency training programs related to diversity and inclusion held during 2020, calculate aggregate spending, and determine whether any identified trainings “teach, advocate, or promote the divisive concepts specified in the Executive Order.” The memo provides certain keywords, such as “unconscious bias”, to assist agencies in locating workplace training that may violate the order. However, neither the order nor the memo categorically bars unconscious bias training. In fact, as noted above, the order specifically states that “inclusivity training is appropriate and beneficial.”

The Takeaway

President Trump’s Executive Order is not a blanket ban on any and all unconscious bias training in the workplace. The order intends to restrict certain types of diversity training and specifically outlines prohibited topics. 

In addition, the order only applies to training and does not apply to a federal contractor’s policies, procedures, or other documents as part of an equity and inclusion program.

Given the upcoming election, the duration of the Executive Order’s effectiveness remains uncertain. If President Trump loses his re-election bid, the order will likely be rescinded when the new administration takes office in January 2021. If President Trump is re-elected, legal challenges to the order are expected. 

Clear Law Institute’s Unconscious Bias Training Compliant with Trump’s Order

Clear Law Institute’s Unconscious Bias Training is fully compliant with the Executive Order. As stated by the OFCCP Director, unconscious bias training that does not “call out any specific race or gender as being inherently biased” is compliant with the Executive Order. 

Clear Law Institute’s Unconscious Bias Training does not conflict with the OFCCP Director’s compliance statement. In fact, our unconscious bias training explains that we all have hidden biases, regardless of our race or gender, and research has shown that we can even have negative associations with our own personal characteristics.

Our Unconscious Bias Training is online, self-paced, and fully narrated. The training also includes numerous interactive animations, video demonstrations, and exercises to keep employees engaged.

Clear Law Institute provides online training to more than 1,000 employers, handles training roll-out to employees, supports tech issues, and tracks course completions.

Click here to learn more and receive a FREE TRIAL of Clear Law Institute’s Unconcious Bias Training: Promoting a Diverse and Inclusive Workplace. 

 

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