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73 civil rights groups protest proposed OFCCP merger into EEOC

By Cynthia L. Hackerott, J.D.

Seventy-three national civil rights organizations, including the ACLU, the NAACP, and the American Association for Access, Equity and Diversity, have signed onto a letter recently sent to Secretary of Labor Alexander Acosta and Office of Management and Budget Director Mick Mulvaney calling on the Trump Administration to abandon its proposal to merge the OFCCP into the EEOC. Acting Commission Chair Victoria Lipnic was copied on the letter. The White House’s proposed Fiscal Year (FY) 2018 budget, released on May 23, 2017, would decrease OFCCP funding by about $17 million and merge the agency into the EEOC by the end of FY 2018. The proposal “would impede the work of both the OFCCP and the EEOC as each have distinct missions and expertise, and would thereby undermine the civil rights protections that employers and workers have relied on for almost fifty years,” the letter, dated May 26, 2017, states. According to a press release on the letter posted by the Leadership Conference on Civil and Human Rights, it was also sent to congressional leadership.

Distinct enforcement responsibilities. In support of their position, the groups pointed out that the “OFCCP enforces rights beyond those that the EEOC enforces and its staff possesses extensive training and expertise in the procurement process that the EEOC staff does not have and would take years to develop. It protects the rights of all active duty wartime veterans, oversees affirmative responsibilities contractors have for hiring qualified individuals with disabilities, enforces explicit protections against discrimination based on sexual orientation and gender identity, and provides broad protections against retaliation for inquiring about compensation. The EEOC’s authority to protect against discrimination on the basis of gender identity and sexual orientation, while well founded in case law, is the subject of ongoing litigation, which amplifies the importance of OFCCP’s role in protecting lesbian, gay, bisexual and transgender (LGBT) workers from discrimination.”

The letter also notes that unlike the EEOC, the OFCCP enforces affirmative action obligations and is empowered to conduct compliance reviews as a condition of federal contracts. “By contrast, the EEOC only has the authority to investigate charges of discrimination, and in conducting its investigation of any particular charge, cannot request data about matters not raised by the charge,” the letter explains. “In particular, because applicants and employees are unlikely to know the reason they weren’t hired or how their wages compare to their coworkers, EEOC pursues relatively few charges of hiring or wage discrimination.”

EEOC already overburdened. “Nor does the EEOC have the capacity to absorb OFCCP’s many unique functions, harming the EEOC’s ability to fulfill its existing more expansive enforcement priorities,” the letter continues. “The EEOC has an extremely heavy workload and a well-known backlog of over 70,000 open yet unresolved cases. OFCCP systemic, affirmative compliance responsibilities cover employers employing nearly a quarter of the civilian workforce. This is an extensive set of enforcement responsibilities that an already over-burdened and under-resourced EEOC, which has existing enforcement priorities that extend beyond the pool of employers OFCCP oversees, does not have the capacity to absorb, especially in light of the draconian budget cuts contemplated by the Administration and Congress.”

Moreover, “pursuant to longstanding working agreements, OFCCP and the EEOC already closely coordinate to avoid duplication of effort and promote efficiency between their operations,” the letter notes.

“The administration’s proposal to eliminate a major civil rights agency is a clear-cut assault on equal pay and equal opportunity for working people,” said Emily Martin, General Counsel and Vice President for Workplace Justice at the National Women’s Law Center. “Eliminating OFCCP would hobble the federal government’s capacity to identify and remedy pay discrimination and other forms of sex discrimination in the workplace. The plan to transfer OFCCP’s enforcement obligations to EEOC—without providing EEOC the necessary resources to do this work—means that this critical work will very likely be abandoned. This frightening and short-sighted proposition must be rejected.”

Other groups oppose the merger. As previously reported in Employment Law Daily, this proposal has also not been well-received among business/employer groups, who fear that the proposed merger could result in a ‘super EEO enforcement agency’ empowered by broader jurisdiction and the ability to impose greater remedies for non-compliance.