Revised Memorandum of Understanding Warns Employers
Much has been written recently about the OFCCP’s increased focus on enforcement and its efforts to expand the scope of the obligations with which contractors will be required to comply going forward. However, recent updates to the OFCCP’s memorandum of understanding (“MOU”) with the Equal Employment Opportunity Commission (“EEOC”) should serve as a warning to contractors that this increased enforcement focus does not end with the OFCCP. Although the MOU between the OFCCP and EEOC has been in existence since 1970, previously the two agencies have rarely coordinated their enforcement efforts. Now, under the revised MOU (signed in November 2011), the EEOC and OFCCP have agreed to take several actions which signal that a new era of cooperation is here. Among other things, both agencies have agreed to:
According to the MOU, the OFCCP and EEOC will share “any information relating to the employment policies and/or practices of employers holding government contracts or subcontracts that support the mandates of each agency as well as their joint enforcement efforts.” Specifically, under the MOU, the OFCCP has agreed to share documents relating to the enforcement or administration of any laws enforced by the EEOC, including Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act, with the EEOC. In return, the EEOC has agreed to share documents relating to the enforcement and administration of Executive Order 11246 and the affirmative action provisions of VEVRAA and Section 503 of the Rehabilitation Act, with the OFCCP. Examples of the type of information that will be shared include, but are not limited to: affirmative action programs; employment reports; complaints and charges of discrimination; investigative files; and compliance evaluation reports and files.
Establish Compliance Coordination Committees (Field and Headquarters):
The field compliance coordination committees described in the MOU will be composed of Regional Attorneys and District Directors from both agencies and will meet at least twice per year to review enforcement priorities, systemic investigations of mutual interest, compliance review schedules, and any other topic that serves the agencies’ joint enforcement goals. Similarly, the Headquarters compliance coordination committee will be made up of representatives from the EEOC’s and OFCCP’s Headquarters and will meet at least twice per year to discuss procedures for accessing and exchanging information in their electronic databases, approaches for identifying and remedying employment discrimination, joint and cross-training materials, and joint policies and procedures for coordinated collection, sharing and analysis of data.
Designate a Coordination Advocate:
The coordination advocate will assist both agencies with the understanding of, and compliance with, the procedures set forth in the MOU.
Establish Standard Notice and Consultation Procedures:
These procedures, which are designed to increase efficiency, ensure coordination, and minimize duplication, include the following:
- Contact by each agency at the start of and during an EEOC field investigation or OFCCP compliance evaluation to obtain information in the possession of the other agency about the employer being investigated;
- Notification of the OFCCP when the EEOC has made a finding of cause, has determined that conciliation will not be successful, decides not to file a lawsuit, and learns or believes that the employer is a federal contractor; and
- Consultation with the other agency when either agency is considering recommending a complaint or litigation against the employer/federal contractor.
In addition to these agreed-upon actions, the revised MOU clarifies the complaint and charge referral procedures for complaints filed with each agency. Among other things, the MOU provides that the OFCCP will act as the EEOC’s agent for purposes of receiving complaints and charges under Title VII and states that all complaints received by the OFCCP that allege race, color, religion, sex, or national origin discrimination or retaliation will be received as dual-filed complaints under Title VII. Further, when the OFCCP receives a complaint and determines that the employer named is not a federal contractor, the OFCCP will transfer the complaint to the EEOC within 10 days. In either case, the date the complaint is filed with the OFCCP shall be deemed the date of filing with the EEOC. Moreover, with respect to dual-filed complaints alleging systemic or class-based discrimination, the OFCCP will retain, investigate, process, and resolve such complaints. However, the OFCCP will refer dual-filed complaints containing allegations of individual discrimination to the EEOC for processing. On the other hand, if the EEOC receives a complaint that is not within its jurisdiction and over which it believes the OFCCP has jurisdiction, it will refer the complaint to the OFCCP and the date that the complaint was received by the EEOC will be treated as the date it is received by the OFCCP. In appropriate cases, either agency may request that it retain certain complaints in order to avoid duplication of effort and to ensure effective enforcement of the law.
In sum, although the revised MOU does not directly impose any obligations on employers, the new collaboration between the OFCCP and EEOC is likely to result in more aggressive enforcement by both agencies, particularly in cases of “repeat offenders” or where there are allegations or evidence of systemic discrimination. In fact, some EEOC investigators are already requesting information about employers’ affirmative action plans and recent compliance reviews during their investigations. Likewise, many OFCCP compliance officers are obtaining information about pending EEOC charges from the contractor (or directly from the EEOC) as part of their standard compliance reviews. Finally, the processes and procedures outlined in the MOU emphasize that both agencies will increase their efforts to investigate and remedy systemic or class-based discrimination and confirm that the EEOC will remain the primary investigator of individual discrimination claims.