On November 7, 2011, the Office of Federal Contract Compliance Programs (“OFCCP”) and the Equal Employment Opportunity Commission (“EEOC”) entered a new Memorandum of Understanding (“MOU”) that allows for greater sharing of information between the agencies and collaboration on enforcement initiatives. The stated goal of the MOU is “to promote greater efficiency and coordination, and to eliminate conflict and duplication of effort” between the agencies. There has been a MOU between the two agencies since 1970. Although the MOU has been updated several times (e.g., 1974, 1981, and 1999), the agencies have rarely coordinated or collaborated on enforcement initiatives.
The agencies, however, may be entering a new era of cooperation. Under the new MOU, the EEOC and OFCCP have planned to undertake the following:
- Share “any information relating to the employment policies of [contractors] that supports the enforcement mandates of each agency as well as their joint enforcement efforts,” including sharing information relating to “affirmative action programs, annual employment reports, complaints, charges, investigative files, and compliance evaluation reports and files.”
- Establish “ongoing Compliance Coordinate Committees (CCC)” where OFCCP and EEOC’s District Directors and Regional Attorneys “will meet, not less than biannually, to review enforcement priorities, systemic investigations of mutual interest, compliance review schedules, potential Commissioner Charges, and potential litigation.”
- Establish that OFCCP will “act as EEOC’s agent” whenever it receives charges under Title VII and that the date that a complaint under Title VII is received by the OFCCP will be considered as the same date that EEOC received the charges.
- Each agency will appoint a “Coordination Advocate who will be available to assist, as necessary, in obtaining a full understanding of, and compliance with, the procedures set forth in this MOU.”
Consistent with the MOU, we have seen a number of situations where EEOC investigators are requesting information from companies concerning their AAPs and OFCCP compliance audits and where OFCCP compliance officers have (directly) obtained or requested from the contractor information concerning its EEOC charges. Also, despite public pronouncements to the contrary last year, it appears that OFCCP is continuing its practice of referring to EEOC individual claims of discrimination.