Potential Issues for Contractors to Consider, and OFCCP Director Leen’s Public Response to Such Concerns
The revisions incorporated in the new MOU raise several concerns related to the administration of Complaints/Charges and investigations. This is because many in the Government contractor community and in civil rights groups worry that the MOU may be a “first-step” to converting the OFCCP into a “mini-EEOC” in preparation for merging it with the EEOC. This potential future merger was one of the areas of concern which drove EEOC Commissioner Charlotte A. Burrows to take the unusual step of issuing a public “statement” in opposition to the new MOU, even before it was public. Indeed, both Commissioner Burrows and Commissioner Jocelyn Samuels, (the other Democrat EEOC Commissioner), while dissenting during the EEOC’s vote to adopt the new MOU on November 2nd, stressed the importance of the EEOC’s independence as an agency. Both Commissioner Burrows and Samuels feared that the new MOU could chip away at that autonomy.
First, given the express authorization of OFCCP as an agent of EEOC and its discretion to investigate individual charges that have a Title VII claim against a covered federal Government contractor or subcontractor, one concern of the federal contractor and subcontractor communities is the imposition of the EEOC timeline for Charging Parties to file Charges vs the timeline to file OFCCP Complaints. Currently, an individual must file complaints with OFCCP alleging discrimination which is unlawful based on race, color, religion, sex, sexual orientation, gender identity, national origin, or based on compensation inquiries, discussions or disclosures, within 180 days from the date of the alleged unlawful discrimination, unless the time for filing is extended for good cause. See 41 CFR § 60-1.21. However, under the EEOC’s Charge filing procedures, the time limit to file a Charge with the EEOC is 180 calendar days, and is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis as Title VII pursuant to a “work sharing agreement” between the state and the EEOC insuring the state will apply legal prohibitions on discrimination at least as stringent as federal law. What will happen, as a result, is that OFCCP will investigate Complaints filed pursuant to Executive Order 11246 alleging violations more than 180 days before the filing (but not more than 300 days before the filing) pursuant to the OFCCP’s new-found authority to investigate the Complaint as a Charge and proceed under Title VII. Previous to the new MOU, OFCCP would have merely declined to intake such an Executive Order Complaint as “untimely filed.” Moreover, OFCCP may or may not have referred the Charging Party to the EEOC to file a fresh Charge arising under Title VII.
Second, given OFCCP’s Rule at 41 CFR § 60-1.24(b) requiring OFCCP to conduct a thorough evaluation of the allegations of all Complaints OFCCP intakes as jurisdictional and to conduct a Complaint investigation during which it must develop a complete case record, contractors may face a situation where OFCCP becomes “overwhelmed” investigating Complaints. For example, EEOC receives over about 70,000 Charges of discrimination per year. In fiscal year 2018, EEOC records report that the Commission received 76,518 charges of workplace discrimination (and that during a dynamic financial year where jobs were more plentiful than applicants for jobs. NOTE: Charge numbers drop in good economic times). The large number of Charges filed with EEOC has resulted in a backlog in the tens of thousands for the EEOC. If the OFCCP were to share even only a small portion of the EEOC’s Charge workload, it would take up all of OFCCP’s time and resources. OFCCP reports, for example, that it normally receives fewer than 1,500 individual Complaints each year. The ongoing overwhelming EEOC backlog thus raises questions whether OFCCP would have the discipline to exercise its discretion over the thousands of Complaints it is now likely to receive arising under Title VII and to refer them to the EEOC, at the risk of foregoing one Compliance Evaluation for about every five Charges, or so, which OFCCP intakes.
Third, the federal contractor community has legitimate concerns born from experience as to OFCCP’s knowledge and experience applying Title VII law as it is, even before OFCCP managers now ask their OFCCP Compliance Officers to expand their knowledge and repertoire to also understand and make demand for “compensatory” and “punitive” damages with which they have absolutely no training or experience. Title VII’s remedies are broader than the remedies available under Executive Order 11246. Moreover, Executive Order 11246 law has not kept up with amendments to Title VII which will cause OFCCP Compliance Officers confusion as they seek to apply the new things they bump into about Title VII law to Executive Order 11246 investigations which lack the full reach of Title VII liability and damages. (For example, the President has never amended Executive Order 11246 to imbue it with Pregnancy Discrimination authority as the Congress did in 1978 as to Title VII law. The Civil Rights Reform Act of 1991, which broadly amended Title VII, did not amend EO 11246 and the President has not doubled back to bring the Executive Order up to the same level of protections as the 1991 Amendments to Title VII. The Lilly Ledbetter Amendment to Title VII did not amend EO 11246 and no President has ordered a parallel amendment to EO 11246.)
And given recent case law decisions arising under Executive Order 11246 which held that OFCCP did not apply even the basic elements of proof necessary to prove up violations of unlawful discrimination pursuant to standard fare Title VII claims, the new authority the new MOU reposes with OFCCP will require a major education and training of OFCCP personnel as to Title VII law and principals.
Of concern, too, Director Leen told the NELI Affirmative Action Briefing audience that if no settlement could be reached releasing both Executive Order 11246 and Title VII claims during joint investigations of the two agencies, OFCCP would proceed only as to the Executive Order 11246 remedies in any suit alleging unlawful discrimination. As an aside, Director Leen confirmed that OFCCP did not intend to train its Compliance Officers regarding Title VII damages remedies unless it became a more routine part of OFCCP’s workload. For now, Title VII damages remedy issues would only arise with OFCCP in situations involving settlement discussions seeking a complete release of claims (i.e. under both EO 11246 and pursuant to Title VII), in his view. This “no training” decision thus suggests that, for the moment, OFCCP intends to intake NO Title VII Charges, in fact. If so, this decision would greatly reduce the concern of knocking OFCCP off-mission. But, then, why amend the MOU to force Title VII Charges onto OFCCP’s dockets and then require OFCCP to laboriously, one-by-one, exercise its discretion to refer them to the EEOC.
Finally, Director Leen stressed that the new MOU would not allow either OFCCP or the EEOC to act over the objection of the other agency; in other words, neither OFCCP nor EEOC can go “rogue” in the application of law or investigative authority.
Time will tell whether Director Leen’s assurances will in fact come to fruition, especially given his current status as outgoing Director of OFCCP and in the face of the election of a new Democratic administration coming on board sometime after January 20, 2021. Given the uncertainty whether OFCCP will in fact begin to investigate Title VII Charges, the best recourse for federal contractors and subcontractors at this stage is to remain on high alert, and to be ready to gently and patiently teach OFCCP Compliance Officers Title VII law if the OFCCP does come knocking with Title VII Charges in hand.