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Related article: Revised Memorandum of Understanding Warns Employers About Coordinated Enforcement Efforts of the OFCCP and EEOC

The EEOC approved the Memorandum of Understanding among the U.S. Department of Labor, the Equal Employment Opportunity Commission, and the U.S. Department of Justice on Nov. 2, 2020 the day before the 2020 presidential election. It would have meant a lot more to federal contractors if Trump had won.

It still remains an interesting document, with curves you should know about. Why is the Department of Justice now a party to the agreement?  Why are “religious liberties” the only Title VII protections referenced? Is the traditional work arrangement between EEOC, which commonly focused its energies Title VII charges brought by individuals, and OFCCP, focusing on company-wide, systemic issues arising under Executive Order 11246, a thing of the past? If so, how will employers be affected?

Background

Prior MOUs, between EEOC and OFCCP only, have been around in various forms since 1970. They never amounted to much actual coordination between the agencies.

The new MOU adds the Department of Justice (DOJ) as a party, requires consultation between OFCCP, EEOC and DOJ on “novel or precedential issues,” and allows OFCCP to investigate Title VII matters affecting individual complainants (prior MOUs required OFCCP to pass Title VII complaints to the EEOC unless they alleged systemic discrimination).

The three Republican EEOC Commissioners state that the new MOU facilitates interagency coordination and increases complaint handling efficiencies.  The two Democratic Commissioners raised nearly a dozen amendments at the Nov. 2, 2020 meeting held to discuss the agreement.  Each was shot down, 3-2, along party lines. The MOU was then approved – along party lines. [1]

The Commissioner’s disagreements boil down to two issues.  First, the authority of EEOC to boldly go where no law has gone before, and second, the Abbott and Costello problem – “who’s on first” in Title VII charge handling.

EEOC Independence

Commissioners’ statements suggest that politics underline the consultation requirement.

The Democratic Commissioners see the requirement as conservatives’ way to keep EEOC from expanding the law, an example being EEOC support of the extension of Title VII rights to the LGTBQ community. (DOJ opposed this expansion in the brief it filed in Bostock v. Clayton County; the Supreme Court sided with EEOC.)

Republican Commissioner Lucas noted with approval that the MOU makes specific reference to “religious freedoms.” It is the only protected right specifically referenced in the document. Wherever your stand on this issue, it is a conservative cause célèbre.

Now that there is a change in administration in the offing, the DOJ “consultation” issues are likely to become moot – or to flip, with more emphasis on LGBTQ protections, and less on religious freedoms. We’ll see.

Title VII Charge Handling

Chair Dhillon noted that “the new agreement brings greater efficiencies to the investigations process.”

Under the new agreement, the OFCCP “may” refer Title VII allegations of discrimination of an individual nature to the EEOC but does not have to.

What happens if OFCCP keeps the complaint?  OFCCP and EEOC must exchange information about it (there’s work right there!) and “in appropriate cases” determine whether to investigate together (in which case they may have to conciliate separately anyway).  If OFCCP keeps the charge, EEOC may require further investigation, and if OFCCP conciliation is unsuccessful, the Title VII component of the charge it handled goes to EEOC, after all.

I am hard pressed to understand how the new arrangement simplifies things.

How is OFCCP, with only a few hundred employees, supposed to handle all this? Indications are that it won’t.  Rather, OFCCP under the current administration intends to continue to refer Title VII charges to EEOC, except those that reference systemic discrimination. It seems likely that the next administration will do the same.

Conclusion

Given the terms of the current commissioners, there should be a Republican EEOC majority and a conservative focus until well into 2022. In the waning days of the current administration, however, Director Leen says that OFCCP will retain its focus on systemic discrimination. And of course, both OFCCP and DOJ will shortly be under new management. In terms of who’s on first and who’s on second for Title VII,  EEOC and OFCCP administrative operations are likely to continue pretty much as is. For now.


[1] The five-member EEOC should have three members of the President’s party and two of the other party. With three new appointments this fall, the EEOC has 5 Commissioners for the first time in the Trump administration.
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Author

Paul McGovern
Managing Partner
Praxis Compliance

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