EEOC and OFCCP Issue Revised Memorandum of Understanding

The Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) have updated the Memorandum of Understanding (MOU) (pdf) between the two agencies “to promote greater efficiency and coordination, and to eliminate conflict and duplication of effort.” The substantive revisions to the MOU – last edited in 1999 – clarify how discrimination complaints or charges filed with one agency are to be processed if they involve issues subject to the jurisdiction of the other.

Among other changes, the revised MOU adds new paragraphs (1 & 10) that outline how information should be shared between agencies. Generally, paragraph one explains that the:

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.

Each agency will have up to 60 days to appoint a Coordination Advocate who will be charged with facilitating any information transfers.

Revised paragraph 6 of the MOU further clarifies the responsibilities of the Compliance Coordination Committees at the agencies’ headquarters and field offices, such as meeting at least biannually to review enforcement priorities and potential litigation.

Another edited paragraph (7) explains what happens when a complaint contains discrimination claims that fall under both agencies’ purview. In such situations, the MOU states that the OFCCP is to act as the EEOC’s agent “for the purposes of receiving the Title VII component of all complaints/charges.” Therefore, all complaints of employment discrimination filed with the OFCCP that implicate Title VII (i.e., are charges of employment discrimination based on race, color, religion, sex, national origin or retaliation) are to be considered dual-filed under Title VII. The date the complaint is filed with the OFCCP will be considered the date the charge is filed with the EEOC for statute of limitations purposes. Similarly, a complaint that is transferred to the EEOC from the OFCCP because the allegations of discrimination implicate an employer that is not a federal contractor subject to OFCCP jurisdiction will be considered filed as of the date it was received by the OFCCP.

Along the same lines, the new paragraph (8) codifies what happens when a complaint is instead misfiled with the EEOC:

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.

In both situations, if a complaint is misfiled, the claim’s statute of limitations will not be jeopardized by the filing mistake.

Finally, the introduction of the MOU emphasizes that the procedures outlined in the new MOU are limited to the exchange of information regarding discrimination complaints other than those that are disability-related. Such complaints are governed by a separate joint disability regulation issued in 1992.
 

Photo credit: YanC

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.