Employer and Civil Rights Groups Oppose Merger of EEOC and OFCCP

Trump budget proposal seeks to reduce redundancies

By Allen Smith, J.D. May 24, 2017
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An item in President Trump's proposed budget for fiscal year 2018 met immediate resistance on Capitol Hill and among employer and civil rights groups: merging the Office of Federal Contract Compliance Programs (OFCCP) into the Equal Employment Opportunity Commission (EEOC), creating one agency to combat employment discrimination.

"OFCCP and EEOC will work collaboratively to coordinate this transition to the EEOC by the end of FY 2018," the proposed budget states. "This builds on the existing tradition of operational coordination between the two agencies. The transition of OFCCP and integration of these two agencies will reduce operational redundancies, promote efficiencies, improve services to citizens and strengthen civil rights enforcement."

However, David Cohen, president of DCI Consulting in Washington, D.C., a firm that specializes in equal employment opportunity and affirmative action compliance, said that in light of opposition from both the employer and civil rights community he "can't see it actually happening."

Mickey Silberman, an attorney with Jackson Lewis in Denver, said there would be no real cost savings. The $88 million in the budget for 2018 for the OFCCP is "a drop in the bucket" compared to allocations for other agencies, and the EEOC would need an increase in funding to avoid the appearance of shuttering of a civil rights agency—a negative issue for Republican congressional leaders facing re-election, he said. Employers could face more burdensome enforcement with a combined EEOC and OFCCP, which Silberman said could be a "super EEO agency," if the two agencies combined powers to be able to investigate throughout organizations.

Concern on Capitol Hill

Already there is concern on Capitol Hill about the proposal. At a U.S. House of Representatives Education and the Workforce Committee hearing on the EEOC on May 23, Rep. Mark Takano, D-Calif., asked Camille Olson, an attorney with Seyfarth Shaw in Chicago, Los Angeles and San Francisco, and chair of the U.S. Chamber of Commerce's equal employment opportunity policy subcommittee, what she thought of the budget recommendation. He noted that the Chamber has gone on record opposing it.

Olson said numerous companies have contacted the Chamber with concerns about merging the agencies. "Both the EEOC and the OFCCP need reforms," she said, but not in the form of a merger. She observed that the agencies have very different missions—nondiscrimination for the EEOC versus affirmative action for the OFCCP. They have very different procedures and remedies, she added, expressing concern that a merger would mix the two missions and be confusing rather than its intended goal of streamlining the agencies' work.

[SHRM members-only toolkit: Managing Federal Contractor Affirmative Action Programs]

Takano also asked Todd Cox, director of policy with the NAACP Legal Defense and Educational Fund, what he thought about the proposal. Cox answered that the NAACP opposed it and is "very concerned that the missions of both agencies would be undermined." He noted that the EEOC responds to charges filed by employees, while the OFCCP conducts audits before there is a claim or allegation of wrongdoing. A shift of the OFCCP into the EEOC would hamper the EEOC's systemic discrimination work, he predicted, and stretch the limited resources of the EEOC, which he said has been "flat-funded" in recent years.

Civil rights organizations believe that a reduction of EEO enforcement agencies would mean less enforcement, Silberman said, noting that it's rare that employer and employee organizations line up together on an issue the way they are in opposition to the merger.

Different Missions

The EEOC's origins lie within and from the enactment of the Civil Rights Act of 1964. Its focus is on nondiscrimination, and most of its work involves complaints of discrimination by individuals or groups, noted Shirley Wilcher, executive director of the American Association for Access, Equity and Diversity—an association of professionals managing affirmative action, equal opportunity and diversity programs—and former deputy assistant secretary for the OFCCP.

The OFCCP's origins are in the procurement process, and, until 1978, there were contract compliance agencies in 11 cabinet departments, she said. In 1978, the programs were consolidated into the Department of Labor. As such, the OFCCP enforces the EEO clause of federal contracts. It does not need to rely on complaints to do its work. Any contractor with a contract over $10,000 is covered by Executive Order 11246, which requires affirmative action for women and minorities. If it has a contract in excess of $50,000 and 50 employees,  a contractor must have a written affirmative action program for women, minorities and people with disabilities, she said. The Jobs for Veterans Act amended the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) by raising the threshold amount required for contract coverage to $100,000. If a contractor has a contract worth at least $100,000, it will need an affirmative action plan for veterans.

The OFCCP's reviews are systemic in nature; the agency looks at issues ranging from adverse impact in hiring, to promotions, terminations and compensation. While some of these issues may arise in an EEOC investigation, most of the agency's work involves named complainants, often individuals, she noted. In addition, EEOC claims against private employers arise under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act and the Genetic Information Nondiscrimination Act—none of which the OFCCP enforces.

Even if there logistically were ways to make the merger happen, "Everyone seems opposed to it except the administration," Silberman said.

The Society for Human Resource Management opposes the merger, noted Michael Aitken, vice president, government affairs.

 

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