EEOC, DOL, DOJ Finalize Controversial Agreement To Coordinate Equal Employment Enforcement, Compliance

FULL ALERT

On November 3, 2020, the Equal Employment Opportunity Commission (EEOC), Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), and the U.S. Department of Justice Civil Rights Division (DOJ) executed a memorandum of understanding (MOU), directing the agencies to coordinate and consult with each other regarding establishing priorities and certain enforcement and compliance efforts. 

The EEOC and OFCCP previously entered into a MOU in 1970 and a revised agreement in 2011. Now, the latest MOU provides the OFCCP greater latitude to retain complaints of discrimination against government contractors while continuing to provide for referral to the EEOC, within its discretion. This means, in the case of federal contractors or subcontractors, the OFCCP could retain and investigate a charge of discrimination without coordinating investigations between the EEOC and OFCCP. With the expanded role provided for the OFCCP, this executive branch agency could end up with primary enforcement jurisdiction, rather than the EEOC.

As explained above, the latest MOU adds a third agency, the DOJ, to ensure “a consistent approach to the complex legal and enforcement issues that arise under EEO laws.”The MOU requires the OFCCP and EEOC to consult with the DOJ regarding cases that raise issues of law that are “novel, unsettled or may have significant precedential value,” before issuing a Notice of Violation or making a reasonable cause determination. Conversely, the MOU indicates that the DOJ will consult with the EEOC and OFCCP before bringing a lawsuit to enforce EEO laws that involve novel or unsettled issues.

Prior to the agencies formalizing the MOU, the majority of the EEOC voted to approve the agreement, by a 3-2 vote which split along party lines. In a statement released before the vote, Democrat Commissioner Charlotte Burrows expressed concern that permitting the OFCCP to investigate workplace discrimination complaints is contrary to Title VII and would give the OFCCP more power to enforce President Trump’s Executive Order 13950 on race- and sex-based stereotyping. (Review our prior alert about Executive Order 13950 here). Commissioners Burrows and Samuels proposed amendments to clarify the EEOC’s authority and autonomy, but all were struck down by the majority.

The MOU indicates that representatives of the three agencies will meet regularly to discuss approaches to “recognizing, accommodating, and enforcing civil rights and conscience protections afforded under federal law ... consistent with the Attorney General’s October 6, 2017, memorandum on federal protections for religious liberty.”The AG’s October 2017 memo, Federal Law Protections for Religious Liberty, stated that “Congress has taken special care with respect to programs touching on abortion, sterilization, and other procedures that may raise religious conscience objections.” Presumably, the use of the phrase “conscience protections,” in the MOU and directing discussion of approaches to recognizing, accommodating, and enforcing civil rights law in accordance with such protections, implies that the agencies aim to ensure that actions taken by employers, based on religious or moral objections to abortion, sterilization, and other procedures, are not deemed a violation of law.

As we reported previously here, the OFCCP has taken an aggressive stance in recent months in investigating purported reverse discrimination issues based on employers’ public announcements about racial equity programs that include workforce measures to increase or enhance diversity. The MOU emphasizes the agencies’ ability to share information about affirmative action programs, investigative files, and compliance reports. Ostensibly, an OFCCP investigation about diversity programming or hiring efforts could trigger the attention of the EEOC or DOJ as well.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise and represent public and private employers, including government contractors, on anti-discrimination and compliance issues, including keeping clients informed of pending and current legislation and legal trends. The Diversity & Inclusion Counseling Team also advises employers in a range of industries on the development, enhancement, and implementation of diversity programs. Contact any member of those groups for more information.