Federal Contractors Should Be on the Lookout for Change in 2021, But Plan for Now

Commentators are speculating on how quickly the Biden Administration may reverse course on three (3) of 2020’s significant developments at the Office for Federal Contract Compliance Programs (“OFCCP”):

• On September 22, 2020, President Trump issued Executive Order 13950, “Combating Race and Sex Stereotyping,” which the OFFCP described as an Order designed against promoting “race or sex-stereotyping or scapegoating” and prohibiting “federal contractors from inculcating such views in their employees in workplace diversity and inclusion trainings.”
• On September 29, 2020, the OFCCP issued requests for information to Microsoft and Wells Fargo concerning their announcements to increase the hiring of Black employees.
• On December 7, 2020, the OFCCP issued a final rule expanding the exemption from Executive Order 11246’s nondiscrimination requirements for federal contractors who are religious corporations, associations, educational institutions, or societies. The final rule will take effect on January 8, 2021.

While change may be on the horizon, the federal contracting community does not know what changes are certain to be made, and when they will take effect. This means that federal contractors should have plans in place now to comply with all OFCCP Executive Orders, rules, and policies and to assess potential risk exposure for non-compliance. Here are some key steps for federal contractors to take during this uncertain time:

• Evaluate all diversity and inclusion training programs to ensure compliance with Executive Order 13950, keeping in mind that the Order does not prohibit such training, but puts some constraints on messaging.
• Educate trainers and others who implement diversity and inclusion training and policies on messaging that complies with Executive Order 13950.
• Be aware that the OFCCP has an active complaint hotline for individuals to report alleged violations of Executive Order 13950.
• Carefully review and evaluate any new federal contracts entered into after November 21, 2020, as they will create contractual obligations to comply with Executive Order 13950.
• Review diversity and inclusion efforts to increase the hiring of women, minorities, protected veterans, and disabled individuals and ensure that such efforts focus on outreach and other legal efforts and do not establish quotas.
• Determine, if the federal contractor is a religious organization, whether the rule’s definitions of “religion,” “particular religion;” “religious corporation, association, educational institution, or society;” and “sincere” permit the contractor to adjust some policies or practices without fear of violating the law.