Memorandum of Understanding: Coordination of Equal Employment Opportunity programs,
[Federal Register: December 14, 1998 (Volume 63, Number 239)]
[Notices]
[Page 68764-68766]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de98-56]
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.
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 filedwith 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 FiledAgainst 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 filedwith 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 filedunder 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 filedcharges of an individual nature to EEOC for processing, and will normally retain systemic or class dual filedcomplaints. 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 Filedwith OFCCP
(a) Dual-FiledComplaints/Charges--Complaints of employment discrimination filedwith OFCCP under Executive Order 11246 will be considered charges simultaneously filedunder 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 filedunder 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 filedcomplaints/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 filedTitle VII charges that OFCCP receives will be waived. (3) Not Reasonable Cause Findings--
If the OFCCP investigation of a dual filedcomplaint/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 filedcomplaint/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 filedan OFCCP complaint/charge that is deemed dual filedunder 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 filedcharge, 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 filedcharge, 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. 98-33067Filed12-11-98; 8:45 am]
BILLING CODE 4510-27-M; 6570-01-M
