Creating a rare moment of unity, the Trump administration has offered a proposal that brings together virtually all of the employment community: the merger of the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). Commentators and partisans from such diverse political and social perspectives as the U.S. Chamber of Commerce and the NAACP Legal Defense and Education Fund are united in opposing the merger of these agencies.
The Trump administration has proposed a merger of the two agencies in order to achieve cost savings without reducing enforcement. The administration’s FY 2018 budget “proposes merging OFCCP into the [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. 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.”
The OFCCP enforces Executive Order 11246, section 503 of the Rehabilitation Act, and the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), all of which apply federal contractors and subcontractors. Employers doing business with the government are required to take certain affirmative actions and not discriminate on the basis of protected characteristics, including race/ethnicity, sex, disability status, veteran status, sexual orientation and gender identity. Several of these protected classifications are not recognized under the federal laws enforced by the EEOC.
For example, the EEOC is not involved with matters concerning veterans. Also, while the EEOC interprets Title VII prohibitions on sex discrimination to include sexual orientation and gender identity, President Trump’s Executive Order 13682 has limited the protections for federal contractors’ LGBT employees. The Order revokes, among other things, the “Fair Pay and Safe Workplaces” order signed by President Obama, which required federal contractors to comply with laws barring discrimination based on sexually identified orientation. Thus, the enforcement efforts of a merged agency in this area are uncertain.
The EEOC is responsible for investigating and resolving employment discrimination claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act of 1967, among other federal employment discrimination laws. The EEOC, however, has no authority to impose affirmative action requirements.
The merger proposal apparently stems from the administration’s commitment to reorganize and improve the efficiency of the executive branch by eliminating perceived unnecessary agencies and/or merging agency functions. The proposed FY 2018 budget calls for a more than 20 percent decrease in federal funding to the OFCCP and a 25 percent reduction in full-time employees from the FY 2017 levels. The OFCCP also is expected to begin reducing the number of its field offices and transitioning the Agency to the EEOC, thereby justifying a lower budget.
Most critics oppose the merger because of the agencies’ different (albeit related) operational goals, missions and approaches to enforcement. Employer and employee groups fear that the newly reorganized agency could exercise the best and the worst aspects of the existing agencies’ powers. Observers speculate that a merger could result in taking the unique and broadest powers from each agency and giving the combined powers to each. The merger could have other unanticipated and unintended outcomes.
Employee groups are concerned about decreased enforcement efforts as a result of reduced agency funding, staff and resources. The EEOC has a significant backlog of pending charges; both employer and employee groups are concerned about the long delays in resolving charges. Employers also worry that the merger might allow the EEOC to expand its enforcement efforts through new audit and enforcement mechanisms. The EEOC’s subpoena power could be problematic for contractors in light of the OFCCP’s broad rights to contractor information.
If this consolidation occurs, the OFCCP will focus its efforts on its traditional mission and take on those tasks needed to effect the merger, including:
Enforcing and drafting amendments to VEVRAA and section 503 of the Rehabilitation Act of 1973
- Revising a new Executive Order amending Executive Order 11246
- Working on rulemaking to transfer authority to the EEOC under section 503, the VEVRAA and Executive Order 11246
- Restructuring its compliance officer training.
To effect this merger, President Trump would have to amend Executive Order 11246 to transfer responsibility from the Department of Labor to the EEOC, and Congress would have to amend the Rehabilitation Act and the VEVRAA to give enforcement authority to the EEOC.
What is certain is that this will not be resolved quickly or quietly. It is too soon to predict what changes the merger or a failed merger will bring to federal contractors and employees. Employers will have to continue to comply with the existing requirements and reporting. While Trump administration spokespersons have stated that the proposed budget does not eliminate the affirmative action obligations, the proposal signals a new approach to enforcement of civil rights in employment.