Proposed Changes to
Memorandum of Understanding -
Coordination of Functions
[Federal Register: December 14, 1998 (Volume 63, Number 239)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF LABOR
Equal Employment Opportunity Commission
Coordination of Functions; Proposed Changes to Memorandum of
AGENCY: Equal Employment Opportunity Commission and Department of
ACTION: Proposed Notice.
SUMMARY: This document sets forth proposed substantive changes to the
1981 Memorandum of Understanding (MOU) between the Equal Employment
Opportunity Commission (EEOC) and the Department of Labor (DOL), Office
of Federal Contract Compliance Programs (OFCCP), published at 46 FR
7435, Jan. 23, 1981. Both agencies have responsibilities to enforce
equal employment opportunity requirements that prohibit discrimination
on the bases of race, color, religion, sex, or national origin. To
further enhance coordination, promote efficiency, and avoid duplication
and inconsistency in the operation of the program, EEOC and DOL are
proposing to update the charge processing procedures found in paragraph
``7'' of the 1981 agreement. Modeled on the 1992 EEOC-OFCCP joint rule
of processing disability complaints under Section 503 of the
Rehabilitation Act (Section 503) and Title I of the Americans with
Disabilities Act (ADA), the proposed revisions to paragraph 7 would
authorize OFCCP to act as EEOC's agent to process and resolve the Title
VII component of charges dual filed with OFCCP under Executive Order
11246, as amended, and Title VII of the Civil Rights Act of 1964, as
amended. The agencies also propose adding a new paragraph to the MOU to
address Title VII's confidentiality requirements. Minor changes to
update other sections of the 1981 MOU, such as changes in the titles of
agency officials, are not included in this document because they do not
warrant publication of notice and comment.
DATES: To be assured of consideration, comments must be in writing and
must be received on or before January 13, 1999.
ADDRESSES: Written comments should be submitted to: Frances M. Hart,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 1801 L Street, N.W., Washington, D.C. 20507. See
Supplementary Information section for information about submitting
comments by facsimile machine.
Comments received will be available for public inspection in the
EEOC Library, Room 6502, 1801 L Street, N.W., Washington, D.C. 20507,
by appointment only. To schedule an appointment, call (202) 663-4630
(voice), (202) 663-4641 (TTY). Comments may be reviewed from 9 a.m. to
5 p.m. Monday through Friday except legal holidays, from December 19,
1998 until the EEOC and DOL adopt a final revised MOU. Persons who need
assistance to review the comments will be provided with appropriate
aids such as readers or print magnifiers.
FOR FURTHER INFORMATION CONTACT:
Carol R. Miaskoff, Assistant Legal Counsel for Coordination, Equal
Employment Opportunity Commission, (202) 663-4689 (voice), 202 663-7026
(TTY); or James I. Melvin, Director, Division of Policy, Planning, and
Program Development, Office of Federal Contract Compliance Programs,
Department of Labor, (202) 693-0102 (voice), 1-800-326-2577 (TDD).
SUPPLEMENTARY INFORMATION: The 1981 EEOC-OFCCP MOU sets forth complaint
processing and information sharing procedures to coordinate enforcement
under Executive Order 11246, as amended, and Title VII. The proposed
changes to paragraph 7 of the 1981 EEOC-OFCCP MOU are intended to
update the paragraph's charge processing provisions based on the EEOC-
OFCCP joint rule, Procedures for Complaints/Charges of Employment
Discrimination Based on Disability Filed Against Employers Holding
Government Contracts or Subcontracts (joint ADA/503 rule), see 29 CFR
part 1641 and 41 CFR part 60-742. Under that rule, OFCCP acts as EEOC's
agent for the purpose of processing and resolving the ADA component of
complaints dual filed with OFCCP under section 503 and the ADA. Drawing
from this joint rule, the proposed revisions to paragraph 7 of the 1981
MOU would authorize OFCCP to act as EEOC's agent in processing and
resolving the Title VII component of complaints retained by OFCCP that
are dual filed under Title VII and Executive Order 11246, as amended.
Thus, OFCCP would investigate, issue findings, and attempt voluntary
conciliation for damages, as it is authorized to do with dual filed
disability complaints/charges. The proposed revisions to paragraph 7
would not authorize OFCCP to litigate Title VII charges or to seek
Title VII damages outside of the voluntary conciliation process.
These proposed changes to paragraph 7 would not alter the general
division of labor between the two agencies as set forth in the 1981
MOU. OFCCP will continue to transmit dual filed charges of an
individual nature to EEOC for processing, and will normally retain
systemic or class dual filed complaints. EEOC may continue to request
referral of systemic or class complaints in appropriate cases. The
proposed paragraph 7 would add a new provision for OFCCP to request
retention of individual complaints in appropriate cases. Like the other
proposed changes, this provision is designed to further maximize
efficiency and minimize duplication in the agencies' overlapping EEO
The proposed paragraph 7 revisions and the new paragraph on
confidentiality (to be numbered paragraph ``8'') are being published
for notice and comment so that the final substantive revisions to the
1981 MOU will reflect maximum public involvement. Submitting Comments
by Facsimile (FAX) Machine.
As a convenience to commentors, the Executive Secretariat of the
Equal Employment Opportunity Commission will accept public comments
transmitted by FAX. The telephone number of the FAX receiver is (202)
663-4114. Only public comments of six or fewer pages will be accepted
via FAX transmittal in order to assure access to the equipment. Receipt
of FAX transmittals will not be acknowledged, except that the sender
may request confirmation of receipt by calling the Executive
Secretariat staff at (202) 663-4078 (voice), (202) 663-4074 (TTY).
Alternative Formats of This Notice
Copies of this Notice are available in the following alternative
formats: large print, braille, electronic file on computer disk, and
audio tape. To receive a copy of the Notice in an alternative format,
call (202) 663-4630 (voice), (202) 663-4399 (TTY).
(Authority: 42 U.S.C. 2000-4(g), 2000-12(a), 2000-14; E.O.
12067; E.O. 11246)
Ida L. Castro,
Equal Employment Opportunity Commission.
Alexis M. Herman,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary, Employment Standards Administration.
Shirley J. Wilcher,
Deputy Assistant Secretary for Federal Contract Compliance.
It is proposed that the 1981 MOU between EEOC and DOL be amended to
update the charge processing procedures found in paragraph ``7'' and to
add a new paragraph to address Title VII's confidentiality
requirements, as follows:
7. Processing of Complaints Filed with OFCCP
(a) Dual-Filed Complaints/Charges--Complaints of employment
discrimination filed with OFCCP under Executive Order 11246 will be
considered charges simultaneously filed under Title VII whenever the
complaints also fall within the jurisdiction of Title VII. For the
purpose of determining the timeliness of such a charge, which will be
considered dual filed under this paragraph, the date the matter was
received by OFCCP shall be deemed to be the date it was received by
(b) Systemic or Class Allegations--OFCCP will retain, investigate,
and resolve allegations of discrimination of a systemic or class nature
on the basis of race, color, religion, sex, or national origin, over
which it has jurisdiction. OFCCP shall promptly notify EEOC's Director,
Office of Field Programs, of OFCCP's receipt of complaints/charges that
include such allegations, by forwarding a copy of the complaint/charge
(and third party certificate, if any). In addition, OFCCP shall make
available to EEOC, upon request, information obtained in the
investigation and processing of such allegations, pursuant to
paragraphs 1 and 6(b) herein. In appropriate cases, EEOC may request
that it be referred systemic or class allegations under Title VII so as
to avoid duplication and assure effective law enforcement.
(c) Individual Allegations--OFCCP will refer to the appropriate
EEOC field office allegations of discrimination of an individual nature
on the basis of race, color, religion, sex, or national origin in dual
filed complaints/charges. In appropriate cases, OFCCP may request that
it retain such allegations so as to
avoid duplication and assure effective law enforcement.
(d) Appointment of OFCCP as EEOC's Agent--OFCCP will act as EEOC's
agent for the purposes of receiving, investigating, and processing the
Title VII component of complaints/charges that it retains under this
paragraph. OFCCP shall investigate and process such dual filed
complaints/charges as set forth in this subparagraph.
(1) Notice of Receipt of Complaint/Charge--
Within ten days of receipt of the complaint/charge, OFCCP shall
notify the contractor/respondent that it has received a charge of
employment discrimination under Executive Order 11246 and Title VII.
This notification shall state the date, place, and circumstances of the
alleged unlawful employment practice(s).
(2) Fair Employment Practice Agency Deferral Period--
Pursuant to work-sharing agreements between EEOC and state and
local agencies designated as fair employment practice agencies, the
deferral period for dual filed Title VII charges that OFCCP receives
will be waived.
(3) Not Reasonable Cause Findings--
If the OFCCP investigation of a dual filed complaint/charge results
in a not reasonable cause finding under Title VII, OFCCP will issue a
Title VII dismissal and notice of right-to-sue. OFCCP will close the
Title VII component of the complaint/charge and promptly notify EEOC's
Director, Office of Field Programs, of the closure.
(4) Reasonable Cause Findings--
(i) Successful Conciliation--If the OFCCP investigation of a dual
filed complaint/charge results in a reasonable cause finding under
Title VII, OFCCP will issue a reasonable cause finding under Title VII.
OFCCP will attempt conciliation to obtain relief, consistent with
EEOC's standards for remedies, for all aggrieved persons covered by the
Title VII charge. If conciliation is successful, the conciliation
agreement will state that the complainant/charging party agrees to
waive the right to pursue the subject issues further under Title VII.
OFCCP will close the Title VII component of the complaint/charge, and
promptly notify EEOC's Director, Office of Field Programs, of the
(ii) Unsuccessful Conciliation--When conciliation is not
successful, the Executive Order 11246 component of the complaint/charge
will be considered for further OFCCP processing consistent with OFCCP's
usual procedures. At the conclusion of OFCCP processing, OFCCP shall
transmit the Title VII charge component to EEOC for any action EEOC
deems appropriate. If EEOC declines to pursue further action, EEOC will
close the Title VII charge and issue a notice of right-to-sue.
(5) Issuance of Notice of Right-to-Sue Upon Request--
Consistent with the Title VII procedures set forth at 29 C.F.R.
1601.28, after 180 days from the date the compliant/charge was filed,
OFCCP shall promptly issue upon request a notice of right-to-sue on the
Title VII component of a complaint/charge that it retains. Issuance of
a notice of right-to-sue shall terminate further OFCCP processing of
the Title VII component of the complaint/charge unless it is determined
at that time or at a later time that it would effectuate the purposes
of Title VII to further process the Title VII component of the
(6) Subsequent Attempts to File an EEOC Charge Covering the Same
Facts and Issues--If an individual who has already filed an OFCCP
complaint/charge that is deemed dual filed under Title VII subsequently
files a Title VII charge with EEOC covering the same facts and issues,
EEOC will forward the charge to OFCCP for consolidated processing.''
(a) When EEOC provides information to OFCCP, then the
confidentiality requirements of sections 706(b) and 709(e) of Title VII
of the Civil Rights Act of 1964 apply to that information. When OFCCP
receives the same information from a source independent of EEOC, the
preceding sentence does not preclude disclosure of the information
received from the independent source.
(b) When OFCCP obtains information from its receipt, investigation,
and processing of the Title VII component of a dual filed charge, it
shall observe the confidentiality requirements of sections 706(b) and
709(e) of Title VII of the Civil Rights Act of 1964 as would EEOC,
except where OFCCP has the authority to obtain the same information
under Executive Order 11246. When OFCCP creates documents that
exclusively concern the Title VII component of a dual filed charge, it
shall observe the above-referenced confidentiality requirements of
(c) Questions concerning confidentiality under Title VII shall be
directed to EEOC's Deputy Legal Counsel for Legal Services, Office of
(d) Questions concerning confidentiality under Executive Order
11246, as amended, or 38 U.S.C. 4212 (Section 402 of VEVRAA) shall be
directed to OFCCP, Director, Division of Program Operations.
[FR Doc. 98-33067 Filed 12-11-98; 8:45 am]
BILLING CODE 4510-27-M; 6570-01-M