EEOC Revises Memorandum of Understanding with DOL, DOJ
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On November 2, 2020, the EEOC held a public meeting, its first of the fiscal year, to consider a new, revised version of its memorandum of understanding (MOU) with the Department of Labor and Department of Justice. At the close of the meeting, the Commission voted 3-2, on partisan lines, to adopt the new MOU. The Republican majority rejected a dozen proposed amendments made by the Commission’s two Democratic commissioners.
According to a press release by the Department of Labor, the agencies (EEOC and DOL) first entered into an MOU in 1970 to “further the objectives of Congress under Title VII of the Civil Rights Act of 1964.” The MOU, according to DOL, “has…served to maximize effort, promote efficiency and eliminate conflict, competition, duplication; and inconsistency among the operations, functions and jurisdictions of the parties to the MOU.”
The Department of Justice is a new signatory to the MOU, and in a press release, the EEOC stated that “the inclusion of the U.S. Department of Justice epitomizes a renewed commitment by three of the country’s premier civil rights agencies to work together and benefit from one another’s resources and expertise in areas of mutual interest.”
Although the details of the new MOU are not yet available, the EEOC’s release states that a “recording and transcript of the Commission meeting will be posted on [the EEOC’s website] at a later date.” However, the DOL released a list of “major revisions,” including:
“Provisions allowing [DOL’s Office of Federal Contract Compliance Programs] greater latitude to retain individual complaints of discrimination against government contractors while continuing to provide for referral to the EEOC as a matter of discretion. The change ensures a role for OFCCP in addressing invidious discrimination against individual employees, changing a previous policy under which OFCCP was required to refer most such dual-filed complaints to EEOC.”
“The inclusion of the Assistant Attorney General for the U.S. Department of Justice’s Civil Rights Division (DOJ) to the MOU as a signatory. The DOJ’s involvement will help ensure that the agencies take a consistent approach to the complex enforcement and legal issues that arise under EEO laws. The MOU now requires OFCCP and EEOC to consult with the DOJ regarding cases that raise issues of law that are novel, unsettled or may have significant precedential value.”
“The adoption of several measures to ensure that senior officials at all three agencies are directly involved in the ongoing coordination efforts pursuant to the MOU.”
“The inclusion of federal protections for religious liberty and conscience protections as an area of focus for coordination efforts.”
“Using the MOU as their charter, OFCCP, EEOC and the DOJ will collaborate further on civil rights enforcement to remedy discrimination successfully.”
According to reporting by Bloomberg, during the discussion of the MOU, the two Democratic commissioners (Samuels and Burrows) expressed concerns “both practical and legal” about the MOU. Commissioner Samuels raised the possibility that it could chip away at the quasi-independent agency’s autonomy.” She also noted that the EEOC was “created by Congress independent of Cabinet agencies, like the Justice and Labor departments.” Commissioner Burrows noted that the EEOC has, in the past, “disagreed with the Justice Department on legal approaches to novel areas in the past,” including whether LGBTQ employees were protected against job discrimination by Title VII of the Civil Rights Act.
Read the EEOC’s press release: “EEOC Approves MOU Promoting Interagency Coordination.”
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