Intent vs. Impact: is the D&I Training Landscape About to Change?

Posted on 10/19/2020 11:26 am  /   October 2020

The opinions expressed in this commentary are solely those of the authors.

Back in the 1980s, we rolled out Sexual Harassment training called “Intent vs Impact.” We explained to all of our employees that they may not have “intended” to offend anyone with their language, jokes or behavior, but if it had a negative “impact” on the recipient or it was unwelcome then it needed to stop.

As I read and reread the recent notices regarding Diversity and Inclusion (D&I) Training, I’m circling back to that same concept; what did they intend and what is the impact. In case you missed them, let me get you caught up:

  1. 9/22/20 - The President issued Executive Order 13950 against “divisive” Diversity & Inclusion training for Federal Contractors, Subcontractors and Grant Recipients effective November 21, 2020 including the establishment of a hotline.
  2. 9/28/20 – The Office of Management & Budget, in the White House, issued Memorandum M-20-37, ending all “divisive” Diversity and Inclusion training for Federal Workers; requiring data on all training conducted since January, 1st, 2020 including the cost; and requiring a “senior political appointee to certify the curriculum of all future D&I training.

As you read these two documents, you could certainly go away thinking that the “Intent” is really to “Combat Race and Sex Stereotyping” by eliminating “blame-focused diversity training.” And if so, that would be great.

But let’s look at three key elements. And to keep it 100% objective, I asked Katie Magoon to weigh in on these questions. Katie is the Owner of a local HR Consulting firm, People Solutions Center, which provides Diversity, Equity and Inclusion training to many clients.

Definition of “Divisive” from EO13950
The Executive Order reads as follows: “Divisive concepts” means the concepts that

  1. one race or sex is inherently superior to another race or sex;
  2. the United States is fundamentally racist or sexist;
  3. an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
  4. an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex;
  5. members of one race or sex cannot and should not attempt to treat others without respect to race or sex;
  6. an individual’s moral character is necessarily determined by his or her race or sex;
  7. 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;
  8. any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or
  9. meritocracy or traits such as a hard work ethic are racist or sexist or were created by a particular race to oppress another race.

The term “divisive concepts” also includes any other form of race or sex stereotyping or any other form of race or sex scapegoating.

Question: What concerns do you have about the impact of this definition on your training?

Answer: Most unconscious bias training teaches that all individuals have bias. Under the intended definitions in the Executive Order, this training should be acceptable moving forward.

My current workshops teach that all individuals have bias (unconscious and bias). However, it is not uncommon for participants in an unconscious bias training session to feel “discomfort, guilt, or anguish” when they realize that they may have been applying these biases in their daily lives. Most of us do not intend for bias to play out decisions that are racist or sexist and realizing that we may have unconsciously applied filters that have that impact can be uncomfortable for people.

It’s this combination of terms within the Executive Order that could have the impact of limiting the teaching of unconscious bias training. In addition, the definition outlined in the Executive Order would certainly limit discussions regarding the concept of privilege.

The Review Process
According to M-20-37, each Federal agency must review all of their D&I training for all of 2020 and conduct a key word search including but not limited to:

critical race theory systemic racism
white privilege positionality
intersectionality racial humility
unconscious bias  

as these words may violate the Executive Order. Going forward, “at least one senior political appointee” must review Federal employee diversity and inclusion training and certifying that the curriculum meets the standard of fair and equal treatment of individuals.

Questions: Could searching your training materials for these key words raise any red flags about your training, and more generally, any D&I training? Keep in mind, this covers federal workers now but may be expanded to federal contractors, subcontractors, and grant recipients.

Answer: I ran a search on two of the most common sessions I facilitate for clients. Based on the keywords outlined here, both sessions may violate the Executive Order.

While I teach that unconscious bias is inherent in all humans, the current definition in my slides does not explicitly state that distinction and any system that was simply searching for those keywords could impact the client’s ability to leverage this training.

In addition, my session on navigating the language of DEI, would certainly be flagged as we introduce the concept of privilege as a key component of cultural intelligence.

The Hotline
The Office of Federal Contract Compliance Programs (OFCCP) has already activated a hotline and email address to take complaints about D&I training. I immediately sent an email to complain to the OFCCP that they set up a hotline because:

  • It violates the OFCCP’s mission statement to support diversity (as evidenced by the fact that some conciliation agreements require unconscious bias training);
  • It violates the right to Freedom of Speech, (since the Supreme Court has told us that Corporations are People too);
  • It puts the OFCCP in the position of policing D&I training materials and takes staff away from their actual mission to ensure federal contractors and subcontractors are complying with affirmative action regulations;
  • If an employee wants to make a complaint right now, clearly the Executive Order (EO) did not cover the contract since it does not go into effect until 11/21/20,so any prior training does not fall under the E.O.

I already received a response! The OFCCP stated they will start taking EO 13950 complaints effective 11/21/20 and pointed me to current regulations that might cover my complaint.

There was no indication that the date of the federal contract covering an employee will be part of the intake. Plus, finding the effective date of federal contracts is not a simple task.

Questions: Have you ever had anyone in your class that was uncomfortable with the training materials, even before they got in the room?

And what do you think the impact will be of them being able to get the phone number off the required notice on the bulletin board and call the OFCCPs hotline directly?

Answer: As a facilitator of Diversity, Equity, and Inclusion workshops, I have certainly had participants who were uncomfortable with these concepts. Over the years, I have had individuals vocalize these concerns with comments such as, “So are you saying I’m racist?”

My sessions leverage exercises and content that allow each participant to come to the realization that bias is implicit in everyone. However, I have certainly had individuals in class that struggled to hear this message and would easily call a hotline based on the definitions outlined in the EO.

I am concerned that organizations covered under the Executive Order will hesitate to continue any programming that runs the risk of meeting these requirements. This could cause Federal Contractors and grant recipients to avoid DEI training in the future.

In conclusion
While I live in the Affirmative Action arena, not DE&I, this impacts my world because it impacts the OFCCP, and all my DE&I training colleagues like Katie.

As it stands right now, the OFCCP as well as the EEOC, will continue to investigate systemic discrimination. However, the Executive Order suggests that contractors cannot talk about it with their employees or train on it. And the timing of this could not be worse since companies are pledging to do more to combat racism in the workplace by conducting anti-racism and racial sensitivity training.

Related issues to be concerned about include purchase order language and posting the hotline on your bulletin boards and websites next to other EEO/AA policies for applicants and employees to see.

So far, the NAACP has issued a FOIA request to find the source rational for these notices; the HR Policy Association issued a statement urging the Trump administration to withdraw the Order; at least five Universities have suspended all DE&I training; and the American Society of Association Executives (ASAE) representing 62,00 associates wrote to the White House to “strongly condemn” these directives; just to name a few. If these issues give you pause or heartburn, please read more about them and share your opinion.

If these orders move forward in their current format, it could impact all DE&I training, both the good and the bad. We could be required to throw out the baby with the bath water, even if that was not the intention.

Judy Julius
Owner & Consultant
EEO Consulting

Katie Magoon
Owner & Consultant
People Solutions Center