Coordination of Functions; Proposed Changes to Memorandum of Understanding

DEPARTMENT OF LABOR

Equal Employment Opportunity Commission

Coordination of Functions; Proposed Changes to Memorandum of

Understanding

AGENCY: Equal Employment Opportunity Commission and Department of

Labor.

ACTION: Proposed Notice.

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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.

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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

enforcement activities.

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,

Chairwoman.

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

EEOC.

(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

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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

closure.

(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

complaint/charge.

(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.''

8. Confidentiality

(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

Title VII.

(c) Questions concerning confidentiality under Title VII shall be

directed to EEOC's Deputy Legal Counsel for Legal Services, Office of

Legal Counsel.

(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