Trump’s Proposed EEOC-OFCCP Merger May Need Congressional Action

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By Jay-Anne B. Casuga and Kevin McGowan

President Donald Trump proposed merging the Equal Employment Opportunity Commission and a Labor Department subagency tasked with monitoring federal contractors’ affirmative action and nondiscrimination compliance.

The EEOC and the DOL’s Office of Federal Contract Compliance Programs would be combined to create “one agency to combat employment discrimination,” according to the president’s proposed budget for fiscal year 2018.

The agencies are expected to “work collaboratively” to coordinate the transition by the end of fiscal 2018, the budget says.

“The transfer touches upon every aspect of OFCCP’s operations including compliance evaluations, compliance assistance, policy, training, stakeholder outreach and education, personnel, contracting and procurement, and information technology,” according to the OFCCP’s FY 2018 budget justification.

Looming ‘Battle Royale’

The proposal will likely be a “battle royale political issue,” John Fox, a former OFCCP policy official during the Reagan administration, told Bloomberg BNA.

Federal contractor stakeholders and civil rights groups oppose a merger of the two agencies, which they say have different policy goals and legal authority.

The president will probably have to secure Congress’ approval for at least part of any plan to transfer functions from the federal contractor compliance program to the EEOC.

Additionally, the president’s budget proposal itself must still get through Congress, James Plunkett, senior government relations counsel with Ogletree Deakins in Washington, told Bloomberg BNA.

“Proposals are political and aspirational in nature,” Plunkett said. “There’s a lot that needs to happen in the real world between a budget proposal and something actually happening.”

Merger Not Mentioned in EEOC Proposal

The proposal for the EEOC absorb the OFCCP “with no new resources” in fiscal 2018 for the commission is “a recipe for reducing civil rights enforcement overall,” said Emily Martin, general counsel and vice president for workplace justice at the National Women’s Law Center in Washington.

It’s “odd” the merger isn’t even mentioned in the EEOC section of the budget proposal when it “would be a real shift” in the commission’s role, Martin told Bloomberg BNA May 23.

That “really bears out our fears” that “it’s just an excuse” to cut the government’s investment in civil rights enforcement overall, she said.

The unique roles the OFCCP plays in proactive enforcement, audits, and affirmative action are “just likely to be lost” if the merger goes through but the EEOC lacks the required resources, Martin said.

“It’s not going to promote efficiencies” in civil rights enforcement but rather will “hobble” the federal agencies responsible for enforcing those laws, she said.The Equal Employment Advisory Council, an employer association in Washington, has “serious concerns” about the merger proposal, said Michael Eastman, who is senior counsel and vice president for public policy at the EEAC.The EEOC and the OFCCP have “different missions” and combining the two may only serve to “muddle them,” Eastman told Bloomberg BNA May 23.

“Each agency certainly needs some reforms” from the EEAC’s perspective, Eastman said. But all parties might be “better served” by keeping the EEOC and the OFCCP separate, he said.

Merger Would Promote Efficiency, Agency Says

A merger would “promote greater policy coordination, management efficiency, and cost-effectiveness,” the OFCCP said in its budget justification.

“After full integration of the two agencies, there should be seamless sharing of enforcement data and expertise, operational efficiencies, expanded compliance assistance to employers, improved customer service, and fully aligned policy,” the agency said.

Combining the agencies would also reduce employer burdens by “consolidating their enforcement requirements” and benefit workers by having only “one door” to bring discrimination claims, it added.

“For example, employers would not have to provide duplicative information to two agencies if an EEOC complainant were also part of an OFCCP compliance evaluation, and individual federal contractor employees filing complaints with OFCCP would not experience delay from their complaint being transferred to EEOC,” it said.

Congress Will Need to Act

Congress will probably have to act to make a merger reality, not just to approve the budget but to amend specific laws or allow for reorganization, according to former OFCCP officials.

The president could likely transfer authority granted to the OFCCP in Executive Order 11,246 to the EEOC “with a stroke of a pen,” said Fox, now a management attorney with Fox, Wang & Morgan in San Jose, Calif.

The executive order bars workplace bias based on race, sex, religion, color, and national origin—similar to Title VII of the 1964 Civil Rights Act, which is enforced by the EEOC. The order goes a step further than Title VII by expressly banning sexual orientation and gender identity discrimination, as well as requiring affirmative action for certain protected classes. The EEOC doesn’t similarly enforce affirmative action requirements.

Congressional approval might be required to transfer authority under the other laws enforced by the OFCCP, namely Section 503 of the Rehabilitation Act and the Vietnam Era Veterans’ Readjustment Assistance Act.

Reorganization Law to Transfer Authority?

There’s precedent for transferring functions between the Labor Department and the EEOC, Jaime Ramón, a former OFCCP director under the George H. Bush administration, told Bloomberg BNA. Ramón currently is a management attorney with Dykema Cox Smith in Dallas.

The Age Discrimination in Employment Act and the Equal Pay Act, both enacted in the 1960s as amendments to the Fair Labor Standards Act, originally were enforced by the DOL’s Wage and Hour Division.

But President Jimmy Carter in 1978 transferred the authority to enforce the ADEA and the Equal Pay Act to the EEOC under a governmental reorganization plan.

Congress earlier passed the Reorganization Act of 1977, which allowed Carter to make changes to the executive branch over a specified amount of time.

Congress might need to pass a similar reorganization law for the Trump administration to transfer the OFCCP’s functions to the EEOC.

The texts of Section 503 and VEVRAA also would likely have to be amended to remove references to the labor secretary.

Amendments to Be Drafted

The OFCCP is expected to focus its policy-related actions and activities in fiscal 2018 on the merger process, budget documents said.

This includes drafting and reviewing a new executive order and legislative proposals to amend Section 503 and VEVRAA; assisting with rulemaking to transfer authority to EEOC; assessing and restructuring agency training programs; and integrating the OFCCP’s Help Desk functions with the EEOC’s system.

The agency would also work with the Government Accountability Office and the Office of Inspector General to close pending audits.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com; Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

President Trump's fiscal year 2018 budget proposal is available at http://src.bna.com/o79. The OFCCP's FY 2018 budget justification is available at http://src.bna.com/o8D.

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