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[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Notices]
[Pages 71029-71032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-29568]

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Coordination of Functions; Memorandum of Understanding

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC) and the 
U.S. Department of Labor (DOL), Office of Federal Contract Compliance 
Programs (OFCCP) have updated their Memorandum of Understanding (MOU), 
last published at 64 FR.17,664 (April 12, 1999). These updates include: 
using contemporary office names and titles; designating a 
``Coordination Advocate'' at both agencies; reorganizing and/or 
condensing language for clarity; streamlining the Compliance 
Coordination Committees; and clarifying the complaint/charge referral 
procedures.

FOR FURTHER INFORMATION CONTACT: Claudia Gordon, Special Assistant to 
the Director, Office of Federal Contract Compliance Programs, 
Department of Labor, (202) 693-1073; Tanisha R. Wilburn, Senior 
Attorney Advisor, Office of Legal Counsel, Equal Employment Opportunity 
Commission, (202) 663-4909 (voice), (202) 663-7026 (TTY).

SUPPLEMENTARY INFORMATION: The purpose of this Memorandum of 
Understanding (MOU) is to further the agencies' joint objectives in 
ensuring equal employment opportunities for applicants and employees 
under Title VII of the Civil Rights Act of 1964 (Title VII) and 
Executive Order 11246 (E.O. 11246), to promote greater efficiency and 
coordination, and to eliminate conflict and duplication of effort. The 
agencies first entered into this MOU on

[[Page 71030]]

May 20, 1970, and revised it in 1974, 1981, and most recently in 1999.
    In this update, the agencies edited the MOU's Introduction and 
added paragraphs 1 and 10 to support coordination generally and 
specifically to create a Coordination Advocate at each agency. They 
edited paragraph 6 to clarify the tasks of the Compliance Coordination 
Committees at Headquarters and Field offices. They also explained that 
disability complaints/charges are not coordinated under this MOU, but 
rather pursuant to the 1992 joint regulation at 29 CFR part 1641 and 41 
CFR part 60-742 (``joint disability regulation'').
    To improve the clarity of the MOU's provisions describing the 
referral process for complaints/charges under Title VII and E.O.11246, 
the agencies revised paragraph 7 and added new paragraph 8. Thus, 
language formerly in paragraph 7(d) of the 1999 MOU was moved to the 
beginning of paragraph 7(a), to state that OFCCP is the EEOC's agent to 
accept the Title VII component of an E.O. 11246 complaint. Consistent 
with equivalent provisions in the agencies' 1992 joint disability 
regulation, OFCCP expressly agreed to refer complaints to the EEOC when 
OFCCP determines that it lacks jurisdiction, and EEOC made a similar 
referral pledge in new paragraph 8. See 29 CFR 1641.5(d) and Sec.  
1641.6(c). In both instances, the date of filing with the first agency 
is deemed the date of filing with the second.
    Finally, the agencies updated the description of DOL's structure 
and the titles of officials at both agencies. They also made minor 
editorial changes.
    The text of the revised MOU follows below. The major changes to the 
MOU are in paragraphs 1(a), 6(a), 7(a), 8 and 10. The revised MOU is 
also available on the EEOC's Home Page at http://www.eeoc.gov and 
OFCCP's Home Page at http://www.dol.gov/ofccp.

     Dated: November 9, 2011.
Jacqueline A. Berrien,
Chair, Equal Employment Opportunity Commission.
* * * * *

Memorandum of Understanding Between U.S. Department of Labor and Equal 
Employment Opportunity Commission

    The U.S. Department of Labor, Office of Federal Contract Compliance 
Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC) 
first entered into this Memorandum of Understanding (MOU) in 1970 to 
further the objectives of Congress under Title VII of the Civil Rights 
Act of 1964, as amended (Title VII), in coordination with Executive 
Order 11246, 30 FR 12319, as amended (E.O. 11246), and Executive Order 
12067, 43 FR 28967 (E.O. 12067) (the EEOC's government-wide 
coordination authority). This MOU broadly promotes interagency 
coordination in the enforcement of equal employment opportunity (EEO) 
laws and also serves to maximize effort, promote efficiency, and 
eliminate conflict, competition, duplication, and inconsistency among 
the operations, functions and jurisdictions of the parties to the MOU. 
It includes specific coordination procedures for complaints/charges of 
employment discrimination filed with OFCCP under E.O. 11246 and/or 
Title VII, which deal with discrimination on the basis of race, color, 
religion, sex, or national origin. Further, the MOU includes provisions 
for sharing information as appropriate and to the extent allowable 
under law.
    This MOU sets forth the complaint/charge referral procedures and 
information sharing provisions between the agencies as they relate to 
the enforcement of Title VII and E.O. 11246. However, the agencies' 
Compliance Coordination Committees (] 6) are not limited to these two 
requirements, and may consult on any other topic that will enhance the 
agencies' mutual enforcement interests under any of the laws within 
their respective jurisdiction. This MOU does not extensively discuss 
interagency coordination efforts involving disability and other bases, 
apart from the broad mandate for the agencies' Compliance Coordination 
Committees (] 6). In 1992, the EEOC and OFCCP issued joint procedural 
regulations providing for information sharing, confidentiality, and 
complaint/charge referral under Title I of the Americans with 
Disabilities Act and Section 503 of the Rehabilitation Act. See 29 CFR 
part 1641 (EEOC), and 41 CFR part 60-742 (OFCCP).
    The parties to this MOU agree as follows:
1. Sharing Information
    (a) EEOC and OFCCP shall share any information relating to the 
employment policies and/or practices of employers holding government 
contracts or subcontracts that supports the enforcement mandates of 
each agency as well as their joint enforcement efforts. Such 
information shall include, but is not limited to, affirmative action 
programs, annual employment reports, complaints, charges, investigative 
files, and compliance evaluation reports and files.
    (b) OFCCP shall make available to the appropriate requesting 
official of the EEOC or his or her designee for inspection and copying 
and/or loan, any documents in its possession pertaining to the 
effective enforcement or administration of any laws or requirements 
enforced by the EEOC including: (i) Title VII; (ii) the Equal Pay Act 
of 1963 (EPA); (iii) the Age Discrimination in Employment Act of 1967 
(ADEA); (iv) the Genetic Information Nondiscrimination Act of 2008 
(GINA); (v) the Americans with Disabilities Act (ADA) (in accordance 
with 29 CFR part 1641); and (vi) E.O. 12067. All documents will be made 
available within ten days of such request, or as soon as practical 
thereafter. Disclosure of such material by EEOC shall be in accordance 
with paragraphs 4 and 5 of this Agreement. All transfers of information 
under this and other paragraphs of this MOU shall only be made where 
not otherwise prohibited by law and in accordance with paragraph 5 of 
this Agreement.
    (c) The EEOC shall make available to the appropriate requesting 
official of the OFCCP or his or her designee for inspection and copying 
and/or loan any documents pertaining to the enforcement and 
administration of (i) E.O. 11246; (ii) the affirmative action 
provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 
1974, 38 U.S.C. Sec.  4212; (iii) Section 503 of the Rehabilitation Act 
of 1973 (in accordance with 41 CFR part 60-742); and (iv) E.O. 12067. 
All documents in its possession (or to which it has access through a 
work-sharing agreement as described in paragraph 4(b) of this 
Agreement) will be made available within ten days of such request, or 
as soon as practical thereafter. Disclosure of such material by OFCCP 
shall be in accordance with paragraphs 4 and 5 of this Agreement.
    2. ``Appropriate Requesting Officials'' shall, for the purpose of 
this Agreement, include the following officials and staff:
    (a) For the EEOC--

(1) The Chair
(2) A Commissioner
(3) The General Counsel
(4) The Deputy General Counsel
(5) The Associate General Counsel
(6) The Legal Counsel
(7) The Director of the Office of Research, Information and Planning
(8) Any Regional Attorney
(9) Any EEOC District, Field, Area or Local Office Director
(10) Director, Office of Field Programs

    (b) For the DOL/OFCCP--

(1) The Secretary or Deputy Secretary of Labor

[[Page 71031]]

(2) The Solicitor or Deputy Solicitor of Labor
(3) The Director or Deputy Director, OFCCP
(4) Any Associate Solicitor
(5) Any OFCCP Regional, District or Area Office Director
(6) Any Regional Solicitor of Labor
(7) Any OFCCP Division Director

    3. Requests directed to a headquarters office of one agency from a 
field office of the other shall first be forwarded through the 
headquarters of the requesting agency. Responses to all requests for 
information shall be made to the official making such request, or his/
her designee.
4. Disclosure of Information
    (a) All requests by third parties to this Agreement, including 
charging parties, respondents, and their attorneys, for disclosure of 
information shall be coordinated with the agency that initially 
compiled or collected the information. The decision of that agency 
regarding disclosure shall be honored.
    (b) Subparagraph 4(a), above, is not applicable to requests for 
data in EEOC files made by any state or local agency designated as a 
706 agency with whom EEOC has a current charge resolution contract and 
a work-sharing agreement containing provisions required by Sections 706 
and 709 of Title VII. Provided, however, that any such agency shall not 
disclose to third parties, including charging parties, respondents, and 
their attorneys, any of the information initially collected or compiled 
by OFCCP without express written approval by the Director, OFCCP.
5. Confidentiality
    (a) When EEOC provides information to OFCCP, the confidentiality 
requirements of sections 706(b) and 709(e) of Title VII, 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. 
However, OFCCP will also observe any confidentiality requirements 
imposed on such information by the Trade Secrets Act or the Privacy 
Act.
    (b) When OFCCP obtains information from its receipt, investigation, 
and processing of the Title VII component of a dual filed charge, or 
when OFCCP creates documents that exclusively concern the Title VII 
component of a dual filed charge, OFCCP will observe any 
confidentiality requirements imposed on such information by the Trade 
Secrets Act, the Privacy Act, and sections 706(b) and 709(e) of the 
Civil Rights Act of 1964.
    (c) Questions concerning confidentiality under Title VII, the EPA, 
the ADA or GINA shall be directed to EEOC's Office of Legal Counsel.
    (d) Questions concerning confidentiality under E.O. 11246, 38 
U.S.C. Sec.  4212 (Section 402 of VEVRAA), or Section 503 of the 
Rehabilitation Act shall be directed to OFCCP, Director, Division of 
Program Operations.
    6. EEOC and OFCCP shall establish procedures for notification and 
consultation at various stages of their respective compliance 
activities in order to develop potential joint enforcement initiatives, 
increase efficiency, ensure coordination and minimize duplication. Such 
procedures shall include:
    (a) Establishment of ongoing Compliance Coordination Committees 
(CCC)--
    1. Field Committees: OFCCP's and EEOC's District Directors and 
Regional Attorneys will meet, not less than biannually, to review 
enforcement priorities, systemic investigations of mutual interest, 
compliance review schedules, potential Commissioner Charges, and 
potential litigation. The Field Committees will work to increase 
efficiency, and eliminate competition and duplication, and may engage 
in consultation regarding any topic that enhances the agencies' mutual 
enforcement interests. In addition to sharing information about 
investigations of discrimination based on race, color, religion, sex, 
and national origin, the Field Committees may also share information 
related to the enforcement of the EPA, the ADEA, GINA, and the ADA and 
Section 503 of the Rehabilitation Act (in accordance with 29 CFR part 
1641 (EEOC) and 41 CFR part 60-742 (OFCCP)).
    2. Headquarters Committee: Representatives from OFCCP's and EEOC's 
Headquarters shall meet not less than biannually to discuss topics of 
mutual interest to both agencies, including, but not limited to:
    (i) Procedures for routine access to and exchanges of electronic 
databases, including, but not limited to, lists of proposed and 
completed compliance evaluations; systemic and individual investigation 
files; and conciliation agreements and settlements;
    (ii) Consistent analytical approaches to identifying and remedying 
employment discrimination under Title VII;
    (iii) Joint and cross-training programs and materials;
    (iv) Joint policy statements; and
    (v) Procedures for coordinated collection, sharing and analysis of 
data.
    (b) Contact by each agency at the commencement of and during a 
field investigation or compliance evaluation where appropriate to 
obtain information in the possession of the agency on the employer 
being investigated.
    (c) Notification of OFCCP when EEOC has made a finding of cause, 
determined that attempts to conciliate have been unsuccessful, decided 
not to file a lawsuit, and learned or believes that the respondent is a 
federal contractor subject to E.O. 11246.
    (d) Consultation with the appropriate field office of OFCCP when an 
EEOC field office is contemplating recommending a Commissioner Charge 
or litigation, and coordination of its activities.
    (e) Consultation with the appropriate field office of EEOC when an 
OFCCP Regional Office is contemplating recommending the issuance of an 
administrative complaint and coordination of its activities.
7. Receipt, Investigation, Processing, and Resolution of Complaints 
Filed with OFCCP
    (a) Dual-Filed Complaints/Charges--Pursuant to this MOU, OFCCP 
shall act as EEOC's agent for the purposes of receiving the Title VII 
component of all complaints/charges. All complaints/charges of 
employment discrimination filed with OFCCP alleging a Title VII basis 
(race, color, religion, sex, national origin, or retaliation) shall be 
received as complaints/charges simultaneously dual-filed under Title 
VII. In determining the timeliness of such complaint/charge, the date 
the matter is received by OFCCP, acting as EEOC's agent, shall be 
deemed the date it is received by EEOC. When OFCCP receives such a 
complaint/charge and determines that the employer is not a federal 
contractor subject to E.O. 11246, it shall transfer the charge to EEOC 
within 10 days of that determination and notify the parties. Such 
notification shall explain that OFCCP, as EEOC's agent, has received 
the Title VII charge and that the date OFCCP received it will be deemed 
the date it was received by EEOC.
    (b) Systemic or Class Allegations--OFCCP will retain, investigate, 
process, and resolve allegations of discrimination of a systemic or 
class nature on a Title VII basis in dual filed complaints/charges. 
OFCCP will promptly notify EEOC of OFCCP's receipt of such allegations, 
by forwarding a copy of the complaint/charge (and third party 
certificate, if any). OFCCP shall make available to EEOC, upon request, 
information obtained in processing such allegations,

[[Page 71032]]

pursuant to paragraphs 1 and 6(b) herein. However, in appropriate 
cases, the EEOC may request that it be referred such allegations to 
avoid duplication of effort and to ensure effective law enforcement.
    (c) Individual Allegations--OFCCP will refer to EEOC allegations of 
discrimination of an individual nature on a Title VII basis in dual 
filed complaints/charges. However, in appropriate cases, OFCCP may 
request that it retain such allegations so as to avoid duplication and 
to ensure effective law enforcement.
    (d) Investigating, Processing and Resolving Dual-Filed Complaints/
Charges--OFCCP will act as EEOC's agent for the purposes of 
investigating, processing and resolving the Title VII component of dual 
filed complaints/charges that it retains under this paragraph. OFCCP 
shall investigate, process and resolve such complaints/charges as set 
forth in this subparagraph, and in a manner consistent with Title VII 
principles on liability and relief.
    (1) Notice of Receipt of Complaint/Charge--Within ten days of 
receipt, OFCCP shall notify the contractor/respondent that it has 
received a complaint/charge of employment discrimination under E.O. 
11246 and Title VII. This notification shall include a copy of the 
complaint/charge, if taken on OFCCP's complaint form, or otherwise 
state the name of the charging party, respondent, date, place and 
circumstances of the alleged unlawful employment practice(s).
    (2) Fair Employment Practice Agency (FEPA) 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 complaints/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, 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--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 finding.
    (i) Successful Conciliation--Conciliation agreements 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.
    (ii) Unsuccessful Conciliation--If conciliation is not successful, 
OFCCP will consider the E.O. 11246 component of the complaint/charge 
for further processing under its usual procedures. At the conclusion of 
OFCCP processing, it shall transmit the Title VII charge component to 
EEOC for any action EEOC deems appropriate. If EEOC declines to pursue 
further action, it 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 29 C.F.R. Sec.  1601.28, once 180 days have passed from the date 
the complaint/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 has retained. Issuance of a notice of right-to-sue shall 
terminate 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 a Charge with EEOC Covering the 
Same Facts and Issues--If an individual who has already filed an OFCCP 
complaint/charge that is 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. Complaints Misfiled with EEOC--When EEOC receives a complaint 
not within its purview, but over which it believes OFCCP has 
jurisdiction, it will refer the complaint to OFCCP. In determining the 
timeliness of such complaint, the date the matter is received by EEOC 
shall be deemed the date it is received by OFCCP.
    9. EEOC and OFCCP shall conduct periodic reviews of the 
implementation of this agreement, on an ongoing basis.
    10. Coordination Advocate--OFCCP and EEOC seek to ensure consistent 
compliance and enforcement standards and procedures, and to make the 
most efficient use of their available resources through coordination. 
Therefore, within sixty (60) days of the effective date of this MOU, 
the headquarters offices of each agency shall appoint a Coordination 
Advocate who will be available to assist, as necessary, in obtaining a 
full understanding of, and compliance with, the procedures set forth in 
this MOU.
11. Effect of Agreement
    This agreement is an internal Government agreement and is not 
intended to confer any rights against the United States, its agencies, 
or its officers upon any private person.
    Nothing in this agreement shall be interpreted as limiting, 
superseding or otherwise affecting either party's normal operations or 
decisions in carrying out its statutory, Executive Order, or regulatory 
duties. This agreement does not limit or restrict the parties from 
participating in similar activities or arrangements with other 
entities.
    This agreement does not itself authorize the expenditure or 
reimbursement of any funds. Nothing in this agreement obligates the 
parties to expend appropriations or enter into any contract or other 
obligations.
    12. Effective Date. This MOU will take effect once signed by both 
parties.
    13. Signatures

    Dated: 11/7/2011.

/s/--------------------------------------------------------------------

Patricia A. Shiu,
Director, Office of Federal Contract Compliance Programs.

    Dated: 11/7/2011.

/s/--------------------------------------------------------------------

Jacqueline A. Berrien,
Chair, Equal Employment Opportunity Commission.

[FR Doc. 2011-29568 Filed 11-15-11; 8:45 am]
BILLING CODE 6570-01-P
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