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EEOC Phone number: 1-800-669-4000

 


Memorandum of Understanding Between
The Equal Employment Opportunity Commission
and The Office of Special Counsel
for Immigration Related Unfair Employment Practices

          The Equal Employment Opportunity Commission ("EEOC"),
     under Title VII of the Civil Rights Act of 1964, as amended
     ("Title VII"), has jurisdiction to process charges alleging
     individual act, pattern or practice, or class employment
     discrimination on the basis of national origin and
     retaliation.  The Department of Justice, Civil Rights
     Division, Office of the Special Counsel for Immigration
     Related Unfair Employment Practices ("Special Counsel"),
     under section 274B of the Immigration and Nationality Act,
     has jurisdiction to process charges alleging an individual
     act or a pattern or practice of employment discrimination on
     the bases of national origin, citizenship status, unfair
     document practices, and intimidation or retaliation.  The
     purpose of this Memorandum of Understanding between the EEOC
     and the Special Counsel is to prevent any overlap in the
     filing of charges of discrimination under these statutes and
     to promote efficiency in their administration and
     enforcement.  This Memorandum of Understanding is intended
     to apply to Title VII and Section 274B of the Immigration
     and Nationality Act as currently written, as well as to any
     future amendments of these acts.
     
          The parties to this Memorandum agree as follows:
     
     I.  Exchange of Information
          The EEOC and the Special Counsel shall make available
     for inspection and copying to officials from the other
     agency any information in their records pertaining to a
     charge or complaint being processed by the requesting
     agency.  Such request shall be made by the Chairman of the
     EEOC or his or her designee, or the Special Counsel or his
     or her designee.
     
     II.  Confidentiality
          When the Special Counsel receives information obtained
     by the EEOC which is subject to the confidentiality
     requirements of sections 706(b) and 709(e) of Title VII, the
     Special Counsel  shall observe those requirements as would
     the EEOC, except in cases where the Special Counsel receives
     the same information from a source independent of the EEOC.
     
     III.  Referral of Charges
          When, during the processing of a charge by either
     agency, it becomes apparent to the agency processing the
     charge that the charge or any aspect of the charge falls
     outside its jurisdiction, but may be within the jurisdiction
     of the other agency, the agency processing the charge will
     immediately dismiss as much of the charge as may fall within
     the jurisdiction of the other agency and, if the charging
     party has not declined referral, refer the dismissed aspects
     of the charge to the other agency, and notify the charging
     party and the respondent of the referral.  In determining
     whether to refer such a charge or such aspect of a charge to
     the other agency, the agency processing the charge shall be
     guided by the attached Guidelines.
     
     IV.  Appointment of Respective Agents
          By this Memorandum of Understanding, the agencies
     hereby appoint each other to act as their respective agents
     for the sole purpose of allowing charging parties to file
     charges to satisfy the statutory time limits.  To ensure 
     that filing deadlines are satisfied, each agency will
     accurately record the date of receipt of charges and notify
     the other agency of the date of receipt when referring a
     charge.
     
          This Memorandum of Understanding supersedes the 1989
     agreement.  
     
     
         Dated: December 18, 1997
     Approved and Accepted for the Equal Employment
     Opportunity Commission.
     
             /s/        
     Gilbert F. Casellas
     Chairman 
     Equal Employment Opportunity Commission
     
     
         Dated: December 18, 1997
     
     Approved and Accepted for the Office of Special Counsel 
     for Immigration Related Unfair Employment Practices.
     
     
            /s/      
     John D. Trasvi¤a
     Special Counsel
     Office of Special Counsel for Immigration Related Unfair
            Employment Practices
     Guidelines for EEOC Staff
     
     I.  National Origin Charges
          Charges or aspects of charges alleging an individual
     act or a pattern or practice of discrimination on the basis
     of national origin should be referred to the Special Counsel
     when all of the following conditions are met:
          (1) The charge alleges discrimination against the
     complainant with respect to his or her hiring, discharge, or
     recruitment or referral for a fee;
          (2) The charge is outside the jurisdiction of the EEOC
     in that the employer (a) does not have 15 or more employees
     for each working day in each of 20 or more calendar weeks in
     the current or preceding calendar year or (b) is an employer
     that is expressly excluded from coverage under Title VII;
     and
          (3) The employer may have had at least 4 employees,
     including both full-time and part-time employees, on the
     date of the alleged discriminatory occurrence as required by
     the Special Counsel's regulations at 28 CFR Part 44.
     
     II.  Citizenship Status Charges
     A.  Referral to the Special Counsel
          Charges or aspects of charges alleging an individual
     act or a pattern or practice of discrimination on the basis
     of citizenship status should be referred to the Special
     Counsel when all of the following conditions are met:
          (1) The charge alleges discrimination against the
     complainant with respect to his or her hiring, discharge, or
     recruitment or referral for a fee; and
          (2) The employer may have had at least 4 employees,
     including both full-time and part-time employees, on the
     date of the alleged discriminatory occurrence as required by
     the Special Counsel's regulations at 28 CFR Part 44.
     B.  Special Procedures
          (1) A charge or aspect of a charge of citizenship
     status discrimination that cannot be referred to the Special
     Counsel should, to the extent possible, be construed as
     alleging national origin discrimination and processed in
     accordance with Title VII, if the employer otherwise is
     covered by Title VII.
          (2) A charge or aspect of a charge that alleges that a
     citizenship requirement or preference has the purpose or
     effect of discriminating on the basis of national origin and
     is otherwise within the jurisdiction of the EEOC, should be
     processed in accordance with Title VII.  See 29 CFR Part
     1606 and Espinoza v. Farah Mfg. Co. Inc., 414 U.S. 86
     (1973).  In addition, if any aspect of this charge satisfies
     the conditions, described in section II A above, for
     referral to the Special Counsel, it should be so referred.
     
     III.  Unfair Document Practices (Document Abuse)
     A.  Referral to the Special Counsel
          Charges or aspects of charges alleging an individual
     act or a pattern or practice of document abuse should be
     referred to the Special Counsel when all of the following
     conditions are met:
          (1) The charge alleges that the employer requested
     complainant to produce more or different documents than
     required to complete the Immigration and Naturalization
     Service Form I-9 (Employment Eligibility Verification form),
     or that the complainant's documentation was rejected by the
     employer during the I-9 process, or that the employer
     requested the complainant to produce a specific document or
     documents for purposes of completing the I-9 or establishing
     employment eligibility; and
          (2) The employer may have had at least 4 employees,
     including both full-time and part-time employees, on the
     date of the alleged document abuse as required by the
     Special Counsel's regulations at 28 CFR Part 44.
     B.   Special Procedures 
          (1)  A charge or aspect of a charge of document abuse
     that cannot be referred to the Special Counsel should be
     construed to the extent possible as alleging national origin
     discrimination, if the employer otherwise is covered by
     Title VII.
          (2)  A charge or aspect of a charge alleging that
     document abuse has the purpose or effect of discriminating
     on the basis of national origin should, to the extent
     possible, be processed in accordance with Title VII, if the
     employer otherwise is covered by Title VII.  In addition, if
     any aspect of this charge satisfies the conditions,
     described in section III A above, for referral to the
     Special Counsel, it should be so referred.
     
     IV.  Intimidation or Retaliation
          Charges or aspects of charges alleging an individual
     act or a pattern or practice of intimidation or retaliation
     should be referred to the Special Counsel when all of the
     following conditions are met:
          (1) The charge alleges that any person or other entity
     intimidated, threatened, coerced, or retaliated against any
     individual for the purpose of interfering with any right or
     privilege secured under section 274B of the Immigration and
     Nationality Act, or because the individual intends to file
     or has filed a charge or complaint, testified, assisted, or
     participated in any manner in any investigation, proceeding,
     or hearing under section 274B of the INA; and
          (2) The person or other entity employs four or more
     individuals.
     
     V.   Unique Situations
          If a charge or aspect of a charge raises allegations
     not directly addressed in these guidelines and EEOC staff
     believes that referral to the Special Counsel may be
     appropriate, EEOC staff shall contact EEOC's Office of Legal
     Counsel, who then shall consult with the Office of Special
     Counsel.
     
     VI.  Procedure for Referral
     A.  General Provisions
          (1) When the charging party has not declined referral,
     any charge or aspect of a charge alleging discrimination on
     the basis of national origin, citizenship status,
     retaliation, or document abuse that satisfies all of the
     conditions for referral to the Special Counsel should be
     forwarded by EEOC staff, with the appropriate file, to the
     Office of Special Counsel for Immigration Related Unfair
     Employment Practices, P.O.Box 27728, Washington, DC 20038-7728.
          (2) When forwarding a charge or aspect of a charge to
     the Special Counsel, EEOC staff should follow any
     instructions issued by the Commission regarding this
     procedure, including instructions relevant to informing the
     charging party of the possibility of referral and providing
     notice of the referral to the parties.
          B.  Additional Procedures Where the Commission Retains
     Jurisdiction
          (1) Where the Commission retains jurisdiction over any
     aspect of a charge when another aspect of the charge is
     being referred to the Special Counsel in accordance with
     these Guidelines, the EEOC field office, when making the
     referral, will inform the Special Counsel of the retained
     jurisdiction.  This notice to the Special Counsel will
     specify the allegation(s) over which the Commission retains
     jurisdiction.  The notice will also state that the
     processing EEOC field office will consult with the Special
     Counsel to coordinate, to the extent possible, the
     investigative activities of both agencies and assure that
     duplication of effort in processing the charge is minimized.
          (2) After confirming that the Special Counsel has
     received the referred aspect of the charge, the EEOC field
     office should attempt consultations with the Special Counsel
     to coordinate, to the extent possible, the investigative
     activities of both agencies and assure that duplication of
     effort in processing the charge is minimized.
          C.  Special Procedures Regarding 706 Agencies
          Where preferable and not contrary to an existing work
     sharing agreement, EEOC staff may choose not to defer to a
     706 Agency any charge or portion of a charge, if the charge
     or any aspect of the charge satisfies all of the conditions
     for referral to the Special Counsel.  Charges or portions of
     charges not deferred pursuant to this provision should be
     processed according to the procedures described in these
     Guidelines.
     
     VII. Procedures Regarding Referrals from the Special Counsel
          Upon receipt of a charge or aspect of a charge referred
     from the Special Counsel, the processing EEOC field office
     should confirm that the charge or aspect of a charge is
     within the jurisdiction of the Commission.  The field office
     should then notify the Special Counsel of its receipt of the
     charge or aspect of a charge.
          If the Special Counsel has retained jurisdiction over
     any aspect of a charge when another aspect of the charge has
     been referred to the EEOC, the field office should attempt
     to coordinate with the Special Counsel, to the extent
     possible, the investigative activities of both agencies.  If
     the Special Counsel has not retained jurisdiction over any
     aspect of a charge that has been referred to the EEOC, the
     field office should process the referred charge as it would
     any other charge of discrimination.Guidelines for Attorneys 
     in the Office of Special Counsel
     
     I.  National Origin Charges
          Charges or aspects of charges alleging individual act,
     pattern or practice, or class discrimination on the basis of
     national origin should be referred to the EEOC when all of
     the following conditions are met:
          (1) Any aspect of the charge that alleges national
     origin discrimination is outside the jurisdiction of the
     Office of Special Counsel or fails to state a claim under 8
     U.S.C. § 1324b; and
          (2) The charge alleges discrimination against the
     charging party with respect to his or her hiring, discharge,
     compensation, terms, conditions, or privileges of
     employment.
     
     II. Citizenship Status and Document Abuse Charges
          Charges or aspects of charges alleging individual act,
     pattern or practice, or class discrimination on the basis of
     citizenship status or document abuse should be referred to
     the EEOC when all of the following conditions are met:
          (1) Any aspect of the charge that alleges national
     origin discrimination is outside the jurisdiction of the
     Office of Special Counsel or fails to state a claim under 8
     U.S.C. § 1324b; 
          (2) The charge alleges discrimination against the
     charging party with respect to his or her hiring, discharge,
     compensation, terms, conditions, or privileges of
     employment; and
          (3) The alleged discriminatory practice may have had
     the purpose or effect of discriminating on the basis of
     national origin.
     
     III. Retaliation
          Charges or aspects of charges alleging retaliation on
     an individual, pattern or practice, or class basis should be
     referred to EEOC when the charge alleges retaliation because
     an individual has opposed an employment practice that he or
     she believed to be unlawful under Title VII, or because an
     individual has made a charge, testified, assisted, or
     participated in any manner in an investigation, proceeding,
     or hearing under Title VII.
     
     IV.  Unique Situations
          If a charge or aspect of a charge raises allegations
     not directly addressed in these guidelines, and the Office
     of Special Counsel staff believes that referral to the EEOC
     may be appropriate, Office of Special Counsel staff shall
     consult with the Special Counsel, who will designate an
     Office of Special Counsel attorney to consult with the
     EEOC's Office of Legal Counsel.
     
     V. Procedure for Referral
     A.  General Provisions
          When the charging party has not declined referral, any
     charge or aspect of a charge alleging individual act,
     pattern or practice, or class discrimination on the basis of
     national origin, citizenship status, retaliation, or
     document abuse that satisfies all of the conditions for
     referral to the EEOC should be forwarded to the appropriate
     EEOC field office.
     B.  Additional Procedures Where the Office of Special
     Counsel Retains Jurisdiction
          (1) Where the Office of Special Counsel retains
     jurisdiction over any aspect of a charge when another aspect
     of the charge is being referred to the EEOC in accordance
     with these Guidelines, the attorney making the referral will
     inform the EEOC of the retained jurisdiction.  This notice
     to the EEOC will specify the claim(s) over which the Office
     of Special Counsel retains jurisdiction.  The notice will
     also state that the processing attorney will consult with
     the EEOC to coordinate, to the extent possible, the
     investigative activities of both agencies and assure that
     duplication of effort in processing the charge is minimized.
          (2) After confirming that the EEOC has received the
     referred aspect of the charge, the Office of Special Counsel
     attorney should attempt consultations with the EEOC to
     coordinate, to the extent possible, the investigative
     activities of both agencies and assure that duplication of
     effort in processing the charge is minimized.
     
     VI.  Procedures Regarding Referrals from the EEOC
          Upon receipt of a charge or aspect of a charge referred
     from the EEOC, the Office of Special Counsel should confirm
     that the charge or aspect of a charge is within the
     jurisdiction of the Office of Special Counsel.
          If the EEOC has retained jurisdiction over any aspect
     of a charge when another aspect of the charge has been
     referred to the Office of Special Counsel, the attorney
     handling the charge for the Office of Special Counsel should
     attempt to coordinate, to the extent possible, the
     investigative activities of both agencies.  If the EEOC has
     not retained jurisdiction over any aspect of a charge that
     has been referred to the Office of Special Counsel, the
     attorney should process the charge as he or she would any
     other charge of discrimination.
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