EEOC & OFCCP UPDATE THEIR MEMORANDUM OF UNDERSTANDING

by Art Gutman Ph.D., Professor, Florida Institute of Technology

A new Memorandum of Understanding (MOU) between the EEOC and OFCCP was signed on 11/7/11 by EEOC Director Jacqueline A. Berrien and Patricia A. Shui and may be viewed at http://www.eeoc.gov/laws/mous/eeoc_ofccp.cfm. The original MOU was entered into in 1970, and revised in 1974, 1981 and 1999. According to the EEOC, the updates within the MOU include:


  • using contemporary office names and titles;

  • designating a “Coordination Advocate” at both agencies;

  • reorganizing and/or condensing language for clarity;

  • streamlining the Compliance Coordination Committees; and

  • clarifying the complaint/charge referral procedures”



The major updates are in Paragraphs 1(A), 6(A), 7(A), 8 and 10. More specifically, Paragraph 1(A) on sharing information states:


EEOC and OFCCP shall share any information relating to the employment policies and/or practices of employers holding government contracts or subcontracts that supports the enforcement mandates of each agency as well as their joint enforcement efforts. Such information shall include, but is not limited to, affirmative action programs, annual employment reports, complaints, charges, investigative files, and compliance evaluation reports and files.



Paragraph 6(A), among other things, creates Compliance Coordination Committees (CCC’s) for joint enforcement initiatives and coordinated efforts to minimize duplication. The CCC attorneys will meet biannually to “review enforcement priorities, systemic investigations of mutual interest, compliance review schedules, potential Commissioner Charges, and potential litigation.”

Paragraph 7(A) focuses on investigation, processing, and resolution of complaints, and states that for “Dual-Filed Complaints/Charges” and states:


OFCCP shall act as EEOC's agent for the purposes of receiving the Title VII component of all complaints/charges. All complaints/charges of employment discrimination filed with OFCCP alleging a Title VII basis (race, color,
religion, sex, national origin, or retaliation) shall be received as complaints/charges simultaneously dual-filed under Title VII. In determining the timeliness of such complaint/charge, the date the matter is received by OFCCP, acting as EEOC’s agent, shall be deemed the date it is received by EEOC. When OFCCP receives such a complaint/charge and determines that the employer is not a federal contractor subject to E.O. 11246, it shall transfer the charge to EEOC within 10 days of that determination and notify the parties. Such notification shall explain that OFCCP, as EEOC’s agent, has received the Title VII charge and that the date OFCCP received it will be deemed the date it was received by EEOC.



Paragraph 8 focuses complaints misfiled with the EEOC. Accordingly:


When EEOC receives a complaint not within its purview, but over which it believes OFCCP has jurisdiction, it will refer the complaint to OFCCP. In determining the timeliness of such complaint, the date the matter is received by EEOC shall be deemed the date it is received by OFCCP.



Paragraph 10 establishes a “Coordination Advocate” and states”


OFCCP and EEOC seek to ensure consistent compliance and enforcement standards and procedures, and to make the most efficient use of their available resources through coordination. Therefore, within sixty (60) days of the effective date of this MOU, the headquarters offices of each agency shall appoint a Coordination Advocate who will be available to assist, as necessary, in obtaining a full understanding of, and compliance with, the procedures set forth in this MOU.

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