By Lorene D. Park, J.D.

Explaining that Title VII would preempt a Title IX claim involving employment discrimination, but would not preempt a Title IX claim of retaliation for participating in Title IX proceedings, even if the alleged retaliation results in termination of employment, a federal court in Texas denied a university’s motion for summary judgment on a former lecturer’s Title IX claim alleging that his contract nonrenewal was retaliation for his participation in (and successful defense against) a former grad student’s Title IX complaint that he sexually harassed her (Wilkerson v. University of North Texas, December 4, 2018, Mazzant, A.).

The employee was hired by the University of North Texas (UNT) in 2003 as a lecturer in a non-tenured-track capacity, under a one-year term contract. At the end of his first term, his contract was renewed, he was promoted, and his duties were expanded. In 2011, he was offered a one-year appointment with a five-year commitment to renew as the department’s “Principal Lecturer,” which was the highest level attainable for a non-tenured teacher.

Consensual relationship. His lawsuit centered around an allegedly wrongful discharge based at least in part on a relationship his department chair deemed to be inappropriate. Specifically, in May 2013 he met a 26-year-old incoming graduate student at a recruiting event; they met several times at his home in June and kissed twice. The employee played no role in her admission or employment, nor was he ever her teacher and did not exercise any authority over her.

Harassment charge. After matriculating, the grad student filed a complaint alleging sexual harassment by the employee, resulting in the issuance of a formal complaint by the Department of Equity and Diversity (OEO). As a result, the employee participated in the investigation into her claim against him. Meanwhile, the department chair gave him a favorable yearly evaluation, but withheld renewing his appointment pending the outcome of the complaint.

Fired despite exoneration. In May 2014, the OEO found that he did not violate UNT’s sexual harassment and consensual relationship policies and the female did not appeal, therefore making the OEO’s decision final. Nevertheless, the department chair, after consulting with counsel and the dean, sent him a letter informing him that his appointment would not be renewed. In the subsequent grievance process, she cited his “poor judgment.” In the employee’s appeal, a committee conducted additional interviews and although it agreed with the “poor professional judgment” assessment, it also stated that the department chair had not followed due process as required by the bylaws. Nonetheless, the provost upheld the nonrenewal decision.

Lawsuit. The employee filed suit alleging UNT violated Title IX by retaliating against him because he testified, assisted, and participated in investigations, proceedings, and hearings concerning his alleged violations of the university’s sexual harassment and consensual conduct policies. The employee had also initially asserted due process and tortious interference claims against administrators in their individual capacities, but the Fifth Circuit held, on interlocutory appeal, that the claims failed on immunity grounds because the department chair acted within the scope of employment in making the decision and the employee did not have a clearly established property right in continued employment for five years. Thus, on remand, only the Title IX retaliation claim against UNT remained.

Title IX retaliation claim not preempted by Title VII. Moving for summary judgment, UNT argued that under the Fifth Circuit’s ruling in Lakoski v. James, while Title IX provides a remedy for discrimination in an education program receiving Federal funding, “Title VII provides the exclusive remedy for individuals alleging employment discrimination on the basis of sex in federally funded educational institutions.” In other words, Title IX does not afford a private right of action for employment discrimination based on sex.

Disagreeing, the court pointed to Lowrey v. Tex. A & M Univ. Sys., in which the Fifth Circuit considered whether the holding in Lakoski concerning employment discrimination applied to Title IX retaliation claims. The Fifth Circuit decided that Title IX created a private cause of action for retaliation against the employees of federally funded educational institutions. Unlike employment discrimination claims, Title VII retaliation claims do not necessarily preempt Title IX retaliation claims when the alleged retaliation concerns an employee who suffered unlawful retaliation “solely as a consequence of complaints alleging noncompliance with” Title IX.

Under Lowry, then, Title VII preempts a Title IX claim alleging retaliation for participation in investigations of alleged employment discrimination, but not a Title IX claim alleging retaliation for participation in investigations challenging alleged violations of Title IX.

Here, the employee claimed UNT terminated him in retaliation for his participation in a Title IX investigation, so his claim was not preempted. Contrary to UNT’s position, the fact that UNT terminated his employment did not change his claim to a Title VII matter.

Public pensions are pressuring Wall Street to help toy workers denied severance. The giant funds are increasingly flexing their financial might on social issues.

By Pamela Wolf, J.D.

Following the domino-like effect still playing out as a result of the #MeToo movement, Lyft has jumped onboard with an announcement that it is getting rid of confidentiality and mandatory arbitration requirements for passengers, drivers, and employees who raise sexual assault and sexual harassment claims. The move comes in the wake of the company’s ride-share competitor, Uber, making a similar announcement.

Uber takes the lead. In a May 15 blog posting, Uber’s Chief Legal Officer Tony West announced that the ride-share company will “no longer require mandatory arbitration for individual claims of sexual assault or sexual harassment by Uber riders, drivers, or employees.” The company also said that it is giving sexual harassment complainants a choice as to whether settlement agreements will include confidentiality provisions.

In addition, West shared that Uber was working with experts in the field to develop a taxonomy to categorize the incidents that are reported to the company. “We hope to open-source this methodology so we can encourage others in the ridesharing, transportation and travel industries, both private and public, to join us in taking this step,” he said.

Lyft quickly follows. Lyft jumped on board the same day Uber made its announcement. “We agree with the changes [made by Uber] and have removed the confidentiality requirement for sexual assault victims, as well as ended mandatory arbitration for those individuals so that they can choose which venue is best for them,” Lyft said in a statement to Employment Law Daily.

“The #MeToo movement has brought to life important issues that must be addressed by society, and we’re committed to doing our part,” Lyft said, also pointing out that Uber made the “good decision” to adjust their company’s policies “48 hours prior to an impending lawsuit against their company.” Lyft also underscored its “longstanding track record of action” in support of the communities the ride-share company serves, from its commitment to the ACLU to standing up for pay equity and racial equality.

Earlier corporate activism. Microsoft was an early arrival on the mandatory arbitration repudiation for sexual harassment cases front. In a December 2017 blog posting, Microsoft President and Chief Legal Officer Brad Smith announced that Microsoft would be the “first Fortune 100 company to endorse bipartisan federal legislation that will ensure that people’s concerns about sexual harassment can always be heard,” backing the Forced Arbitration of Sexual Harassment Act of 2017 (S. 2203). Smith said that effective immediately, Microsoft was waiving the contractual requirement for arbitration of sexual harassment claims in its own arbitration agreements “for the limited number of employees who have this requirement.”

Both the EEOC and the OFCCP have taken steps to enforce equal employment and affirmative action requirements in the technology sector, but weaknesses in their enforcement processes hamper the effectiveness of their efforts, a newly released report by the U.S. Government Accountability Office (GAO) concludes. Based on its findings, the GAO issued six recommendations, including that the EEOC develop a timeline to improve industry data collection and that the OFCCP take steps toward requiring more specific minority placement goals by contractors and assess key aspects of its audit selection approach. In response, the EEOC neither agreed nor disagreed with the GAO’s recommendation, and the OFCCP stated the need for regulatory change to alter placement goal requirements.

The 76-page report, dated November 16, 2017, but not publicly released until November 30, examines (1) trends in the gender, racial, and ethnic composition of the technology sector workforce; and (2) EEOC and OFCCP oversight of technology companies’ compliance with equal employment and affirmative action requirements. For the report, the GAO analyzed: (1) workforce data from the American Community Survey for 2005-2015; (2) EEO-1 Report forms for 2007-2015, the latest data available during the analysis period; and (3) OFCCP data on compliance evaluations for fiscal years 2011-2016. It also interviewed agency officials, researchers, and workforce, industry, and company representatives.

The GAO also posted a link to an accompanying podcast.

Tech sector trends. Jobs in the high paying technology sector are projected to grow in coming years, yet, female, Black, and Hispanic workers, comprised a smaller proportion of technology workers compared to their representation in the general workforce from 2005 through 2015, and have also been less represented among technology workers inside the technology sector than outside it. The report found that the estimated percentage of minority technology workers increased from 2005 to 2015, but the GAO found that no growth occurred for female and Black workers, whereas Asian and Hispanic workers made statistically significant increases. Further, female, Black, and Hispanic workers remain a smaller proportion of the technology workforce—mathematics, computing, and engineering occupations—compared to their representation in the general workforce. These groups have also been less represented among technology workers inside the technology sector than outside it. In contrast, Asian workers were more represented in these occupations than in the general workforce. Stakeholders and researchers that the GAO interviewed identified several factors that may have contributed to the lower representation of certain groups, such as fewer women and minorities graduating with technical degrees and company hiring and retention practices.

EEOC not sufficiently tracking complaints by industry. Although the EEOC has identified barriers to recruitment and hiring in the technology sector as a strategic priority, when the agency conducts investigations, it does not systematically record the type of industry, therefore limiting sector-related analyses to help focus its efforts. The EEOC’s database of charges and enforcement actions—the Integrated Mission System (IMS)—has a data field for the North American Industry Classification System (NAICS) industry code, the standard used by federal statistical agencies in classifying business establishments, but the GAO found that this data field is completed for only about half the entries in the system. The GAO noted that the EEOC has plans to determine how to add missing industry codes but has not set a timeframe to do this.

In terms of systemic cases, according to the EEOC, as of June 2017, the commission had 255 systemic cases pending since fiscal year 2011 involving technology companies (13 of these were initiated as commissioner charges and 8 were directed investigations involving age discrimination or pay parity issues).

EEOC charges may not accurately reflect rate of workers who perceive discrimination. Several EEOC officials interviewed by the GAO noted that technology workers may be initiating few complaints at the federal level due to factors such as fear of retaliation from employers or the availability of other employment or legal options. They also said that technology workers may generally have greater wealth and can afford to hire private attorneys to sue in state court rather than go through the EEOC. Moreover, they said that some states, including California, have stronger employment discrimination laws that allow for better remedies than federal laws, which could lead employees to file charges at the state level rather than with the EEOC.

In addition, the EEOC has acknowledged in a 2016 report that binding arbitration policies, which require individuals to submit their claims to private arbiters rather than courts, can also deter workers from bringing discrimination claims to the agency, leaving significant violations in entire segments of the workforce unreported. That report stated that an increasing number of arbitration policies have added bans on class actions that prevent individuals from joining together to challenge practices in any forum. The report concluded that the use of arbitration policies hinders the EEOC’s ability to detect and remedy potential systemic violations. Researchers report that the use of such clauses has grown and data on federal civil filings for civil rights employment cases reflect a marked reduction in the number of such filings.

Steps in addition to charge investigations. Aside from pursuing charges, the EEOC has taken some steps to address diversity in the technology sector including research and outreach efforts. In May 2016, citing the technology sector as a source for an increasing number of U.S. jobs, the EEOC released a report analyzing EEO-1 data on diversity in the technology sector in tandem with a commission meeting raising awareness on the topic.56 In addition, EEOC’s fiscal year 2017- 2021 Strategic Enforcement Plan identified barriers to hiring and recruiting in the technology sector as a strategic priority. The EEOC has also been involved in outreach efforts with the technology sector. For example, the EEOC Pacific Region described more than 15 in-person or webinar events since 2014 in collaboration with OFCCP and local organizations focused on diversity in the technology sector. The topics of these events included equity in pay and the activities of these two agencies in enforcing nondiscrimination laws. Finally, in fall 2016, the EEOC initiated an internal working group to identify practices to help improve gender and racial diversity in technology, but as of June 2017 had no progress to report.

OFCCP placement goals lack specificity. The OFCCP’s regulations may hinder its ability to enforce contractors’ compliance because these regulations direct contractors to set placement goals for all minorities as a group rather than for specific racial/ethnic groups, the GAO found. By not requiring contractors to disaggregate demographic data for the purpose of establishing placement goals, the OFCCP has limited assurance that these contractors are setting goals that will address potential underrepresentation in certain minority groups, the GAO concluded.

Audits. While evaluation of technology contractors occurs in the course of the OFCCP’s routine activities, it does not currently use type of industry as a selection factor, according to agency officials. Although the OFCCP plans to incorporate information on disparities by industry into its process for selecting establishments for compliance evaluations, it has not fully assessed its planned methods. Without such assessment, the agency may use a process that does not effectively identify the industries at greatest risk of potential noncompliance.

In addition, the OFCCP faces delays in its compliance review process, but it has not analyzed its closed evaluations to understand the causes of these delays and whether its processes need to be modified to reduce them.

Violation statistics. The GAO found that few (less than 1 percent) of the OFCCP’s 2,911 closed technology contractor evaluations from fiscal years 2011 through 2016 resulted in discrimination violations, though 13 percent resulted in other violations, such as recordkeeping violations and failure to establish an affirmative action program (AAP). Technology contractor evaluations that had discrimination violations resulted in back pay, salary adjustments, or other benefits totaling more than $4.5 million for 15,316 individuals (averaging about $300 per award) for fiscal years 2011 through 2016. The vast majority of discrimination violations were on the basis of gender or race/ethnicity rather than disability or veteran status.

Other steps. In terms of other steps to conduct oversight of the technology sector, OFCCP officials in the Pacific Region told the GAO that they are hiring compliance officers with legal training to be better able to address needs for reviews in the technology sector, such as responding to lawyers representing technology contractors. Officials in both the Pacific and Northeast regions work closely with statisticians and labor economists on their cases, an effort officials said has increased over the past few years. Moreover, the OFCCP has requested funding in its fiscal year 2018 congressional budget justification to establish centers in San Francisco and New York that would develop expertise to handle large, complex compliance evaluations in specific industries, including information technology.

FAAP participation. Furthermore, key aspects of the OFCCP’s approach to compliance reviews of contractors’ affirmative action efforts have not changed in over 50 years, even though changes have occurred in how workplaces are structured. The OFCCP has developed an alternative affirmative action program for multi-establishment contractors— its Functional Affirmative Action Program (FAAP)—but few contractors participate in this program. Because the agency has not evaluated the program, it does not have information to determine why there has not been greater uptake and whether it provides a more effective alternative to an establishment-based AAP.

Recommendations. The GAO’s first recommendation was that the EEOC Chair should develop a timeline to complete the planned effort to clean IMS data for a one-year period and add missing industry code data. The other five recommendations were that the OFCCP should:

(1) analyze internal process data from closed evaluations to better understand the cause of delays that occur during compliance evaluations and make changes accordingly.

(2) take steps toward requiring contractors to disaggregate demographic data for the purpose of setting placement goals in the AAP rather than setting a single goal for all minorities, incorporating any appropriate accommodation for company size. For example, OFCCP could provide guidance to contractors to include more specific goals in their AAP or assess the feasibility of amending their regulations to require them to do so.

(3) assess the quality of the methods it uses to incorporate consideration of disparities by industry into its process for selecting contractor establishments for compliance evaluation. It should use the results of this assessment in finalizing its procedures for identifying contractor establishments at greatest risk of noncompliance.

(4) evaluate the current approach used for identifying entities for compliance review and determine whether modifications are needed to reflect current workplace structures and locations or to ensure that subcontractors are included; and

(5) evaluate the agency’s Functional Affirmative Action Program to assess its usefulness as an effective alternative to an establishment-based program, and determine what improvements, if any, could be made to better encourage contractor participation.

Because many blanks are yet to be filled in as to the White House’s proposal to merge the OFCCP into the EEOC, Employment Law Daily reached out to three labor and employment law experts, including two former OFCCP officials, to get their thoughts on the mechanics of how the merger might occur as well as its implications for employers. In separate interviews, the three attorneys—Lawrence Z. Lorber, Senior Counsel in the Washington, DC office of Seyfarth Shaw, and former OFCCP Director; John C. Fox, former OFCCP official and current President of Fox, Wang & Morgan, P.C. in Los Gatos, California; and David Gabor, a Partner in Boston, Massachusetts office of The Wagner Law Group—discussed the legal, technical, practical, and political issues presented by the proposed merger. Among the topics covered were: potential budget savings, efficiencies, and other improvements to enforcement functions that might be achieved by the proposal; what will become of the affirmative action component of the OFCCP’s mission; whether the proposed merger timeline is realistic; and options for the agencies to work together even if political considerations ultimately doom the merger.

Proposed merger. The White House’s proposed Fiscal Year (FY) 2018 budget, released on May 23, 2017, would decrease OFCCP funding by about $17 million and merge the agency into the EEOC by the end of FY 2018. The Appendix section for the proposed DOL budget, at page 749, states: “The 2018 Budget proposes merging 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. 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.”

Proposal not well-received among stakeholders. Even before getting into the technical aspects of what would be required to undergo the merger, there is the issue of how the mere idea of such a merger is being received. As previously reported in Employment Law Daily, this proposal has also not been well-received among business/employer groups, who fear that the proposed merger could result in a ‘super EEO enforcement agency’ empowered by broader jurisdiction and the ability to impose greater remedies for non-compliance. In addition, the National Industry Liaison Group (NILG) sent a letter to Secretary of Labor Alexander Acosta and Office of Management and Budget Director Mick Mulvaney, on June 12, 2017, expressing its opposition to the proposal stating in part: “We fear that by eliminating the OFCCP, the focus of audits will become full blown EEOC lawsuits.” The NILG letter also expressed concern that budget reductions will “create a situation where compliance is no longer a significant concern for most federal contractors,” and that the substantial work required by the government to combine the agencies “will have deleterious effects on both the federal government’s procurement process and federal contractor compliance.”

Civil rights groups have also expressed opposition. For example, 73 national civil rights organizations, including the ACLU, the NAACP, and the American Association for Access, Equity and Diversity, have signed onto a letter addressed to Secretary Acosta and OMB Director Mulvaney calling on the Trump Administration to abandon the proposal. Acting Commission Chair Victoria Lipnic was copied on the letter, dated May 26, 2017. The proposal “would impede the work of both the OFCCP and the EEOC as each have distinct missions and expertise, and would thereby undermine the civil rights protections that employers and workers have relied on for almost fifty years,” the letter states.

Issues affecting consideration. “There are three issues which affect consideration [of this proposal],” Fox noted. First, “as a purely technical and administrative decision, it is hard to argue against. If you were a Martian landing on earth and one day stumbled upon the OFCCP and the EEOC, you would wonder why these civil rights agency twins had ever been separated at birth. One can find technical issues to debate, but those are details with multiple potential solutions. Unfortunately for those opposing the merger, there are no “deal stoppers” [with regard to this merger proposal].”

Second, “as a political proposition, the merger is very difficult and will continue to be poorly received as proposed because it drives together ‘strange bedfellows’ in opposition,” Fox continued. “Indeed, the precise form of the merger (all of OFCCP, not parts of its authority and budget) may be so politically unpalatable that the merger proposal may well be ‘Dead on Arrival.’ In addition, the 16.5 percent budget reduction the White House has proposed for the OFCCP is hard to separate in the minds of most government contractors and civil rights groups from the political decision—even though the White House is treating OFCCP better than most other USDOL agencies as to which the White House has proposed more than a 16.5 percent budget cut.”

Third, “as an emotional proposition, the merger is also difficult for many government contractors to accept because people are always and inherently resistant to change. Moreover, the government contractor community is quite accustomed to the OFCCP it knows and currently also fears what it does not know (which is all the details of the proposed merger).”

“So, depending on which of the above three issue(s) drives one’s thinking, you are either pro or con the merger proposal,” Fox observed.

Would the combined agencies be more efficient? As stated above, the White House asserts that combining the agencies will “reduce operational redundancies” and “promote efficiencies.” The experts differed on the extent to which efficiencies would result from the merger.

“The significant differences in authority, procedures and enforcement processes, call into question what efficiencies and savings the merger would achieve if the current functions of both agencies are to remain,” said Lorber. “The agencies actually have complimentary but different missions. The OFCCP and its predecessors were established with the primary mission of promoting and enhancing affirmative action outreach efforts aimed at increasing the pool of qualified employees from historically disadvantaged groups available to work on federal contracts.  It is an audit based agency which does not establish rights to pursue private law suits, but instead reviews contractor establishments to determine compliance.

“The EEOC, on the other hand, is a discrimination charge based agency with a mandate to conciliate charges but who may also establish rights to bring private litigation.  While the two statutes and Executive Order which guide OFCCP’s actions do prohibit discrimination, they are not part of federal government’s core responsibility to combat discrimination. That responsibility derives from Title VII, the ADA and USERRA, among other laws, which each establish specific prohibitions against discrimination. Title VII, the ADA, and other laws are administered by the EEOC.”

How the merger is actually carried will be key a factor in the extent of efficiencies that might occur, according to Gabor. “Without knowing the specifics, it sounds like a merger of EEOC and OFCCP makes a great deal of sense,” he said. “They perform related functions and a merger might create efficiencies and consistency in administration. One of the challenges that companies often face is conflicting messages from different agencies. How effective a merger might be is dependent on how it is executed. There will need to be solid communication between teams from the EEOC and the OFCCP. If that fails and the framework of the merger is not solid, then the merger will not be effective.”

Realistic timeline for merger? The merger plan calls for the OFCCP and the EEOC to establish a transition workgroup to strategically plan and implement the transition process throughout FY 2018 and for the merger to be completed by the beginning of FY 2019. Considering that the proposed transfer of operations would touch upon every aspect of the OFCCP’s operations including compliance evaluations, compliance assistance, policy, training, stakeholder outreach and education, personnel, contracting and procurement, and information technology, some stakeholders have questioned whether the timeline specified in the White House’s budget documents is realistic. Indeed, in a recent letter to the Institute for Workplace Equality (IWE), Acting OFCCP Director/Deputy Director Thomas M. Dowd acknowledged that the proposal “includes several challenging transition issues,” and indicated that the legislative and regulatory actions necessary to effectuate  the proposed merger “will likely prove time consuming and could delay the expected FY 2019 start for the proposed consolidation.”

“The Congress and the agencies would have to determine the efficacy of the timeline for the merger and how resources would be allocated,” Lorber said, adding “[t]he timeline does seem to be somewhat ambitious.”

“I do not believe that the timeline is realistic unless adequate resources are available to manage the transition,” Gabor said. “To that end, it appears that this plan is contingent on a number of other things happening. If one of those things fails, there may be a domino effect.”

Yet, Fox pointed out that “[b]usiness mergers of billion dollar companies sometime happen in less than two weeks. It won’t be pretty and the OFCCP may go into an ‘enforcement pause’ for a year or so.”

“If there is a Continuing Resolution of the FY 2018 Budget, the continuing uncertainty of the Congress’ direction could also slow transition planning because of the uncertainty of the Congress’ eventual approval of the merger proposal,” Fox continued. “However, I strongly suspect that Ms. Lipnic and Secretary of Labor Acosta will continue to plan the transfer of the OFCCP to the EEOC despite any Continuing Resolution and absent direction from the Congress that it will not support and fund the merger.”

Budget savings. All three attorneys agreed there would be some budget savings if a merger occurs, but not right away.

“If it goes forward there should be budget savings inasmuch as this would eliminate duplication of services,” Gabor said.

“Any budget savings would be determined by how the merger is effectuated and how the responsibilities and resources are reallocated,” Lorber stated. “There would seem to be a need to cross-train OFCCP compliance staff and EEOC investigators and intake staff on the functions and procedures of the other agency. It may therefore be difficult to realize immediate savings.”

“It is hard to quantify, but my sense is probably $20 million per year even apart from the increased enforcement capability of an OFCCP owned and operated by the EEOC,” Fox said, noting that economies of scale will be a factor.

Delving into some detail, Fox noted that in terms of financial efficiency, “[t]here is no doubt the combined agencies would save a substantial amount of money.” He explained that there would be just one budget for discrimination law enforcement, statistics, recordkeeping, and interviewing training. Money will also be saved via “the elimination of 60 some-odd offices currently co-located throughout the country and presumably (but not necessarily)  elimination of the Office of Administrative Law Judge process at USDOL in exchange for the EEOC’s traditional access to the federal courts.”

“The savings in leasehold expense will be very large as OFCCP has shrunk in recent years by over 30 personnel from almost 800 employees to about 550 on roll today and heading, perhaps to an authorized payroll of only 440 employees) leaving the agency with many offices which are 50 percent or more empty,” he continued.

“There will, however, be a large one-time cost to intake the OFCCP personnel into the EEOC,” he noted, adding that, ”[t]he EEOC should treat the OFCCP personnel as new hires off the street and train them in every law and system at the EEOC to disengage OFCCP’s bad habits and fill in the many gaps in OFCCP training.”

Operational efficiency. Looking at operational efficiency, Fox observed that “[t]he EEOC is a very well run agency by most measures and the OFCCP is among the very lowest performing agencies in the federal government. The strong training and organizational tradition of the EEOC would greatly increase the OFCCP’s operational and enforcement efficiency through sturdy and reliable discrimination training programs the EEOC has large staffs to update and deliver.” In contrast, “the OFCCP has not offered training programs in three years and most of its employees have never been trained in discrimination law, investigation procedures, interview techniques, statistics, recordkeeping during investigations, etc.

“As one example, the EEOC during the Obama Administration launched a pilot ‘systemic discrimination’ program in selected EEOC offices to mirror the systemic program at OFCCP. In only three years, the EEOC systemic program, with about the same number of employees as OFCCP employs, has last fiscal year collected over three times more than the OFCCP’s entire back pay collection.” [Wolters Kluwer Note: According to the agencies’ statistics for FY 2016, the EEOC obtained approximately $38 million in relief for victims of systemic discrimination, while the OFCCP obtained just over $10.5 million total from compliance evaluations and complaint investigations.]

“Indeed, one of the contractor community’s fears about the transfer of the OFCCP to the EEOC is that the EEOC would undoubtedly make the OFCCP a more efficient, functional and fearsome agency instead of the heavily damaged and burdened agency it now is,” Fox explained, adding that the OFCCP is an agency “which does not strike much fear currently in corporate General Counsel offices throughout the United States.”

“Also, the EEOC would get the OFCCP on schedule,” he continued. “[The] OFCCP is chronically tardy, brings lawsuits often 10 years after the events in question without explanation or remorse, [it] has thousands of audits now 4-8 years old and has no internal operating deadlines whatsoever (since FY 2016). [Thus,] the EEOC’s structured and mature infrastructure will help organize the decayed OFCCP management structure.”

What’s driving the opposition? Fox identified three primary drivers behind the government contractor community galvanizing in opposition to the merger. The first is the fear that “the EEOC will make the OFCCP a much more effective and feared agency the contractor community can no longer control,” he said, adding that is the great “elephant in the room” that few are discussing publicly because it is “not a compelling reason to oppose the merger.”

The second driver is “distrust of the White House’s intentions as to civil rights, causing an automatic reflex ‘knee-jerk’ reaction to resist anything the White House does [in this area].” Elaborating on this point, he said “just imagine how differently the civil rights and government contractor communities might have received the White House’s merger proposal had the Trump White House recommended, let’s say, a doubling of the OFCCP’s budget AND merger with the EEOC; thus, engendering confidence that the White House was well-intentioned as to its merger decision.”

The third driver is the “fear that the transfer means a diminished role for the OFCCP. [Thereby,] threatening the livelihoods of hundreds of vendors, thousands of corporate affirmative action personnel and thousands of lawyers servicing government contractors.”  However, Secretary Acosta’s June 7 testimony at the House subcommittee hearing should now remove this third concern, he said. “The 16.5 percent reduction the White House has proposed to the OFCCP’s budget does not diminish the integrity of the merger decision since the White House is not differentially reducing the OFCCP’s budget. Rather, the White House has launched a broad-frontal attack on the budget of the entire federal Executive Branch—not just the OFCCP— with only a few exceptions, such as defense and veterans programs,” he noted.

“There are usually varied reasons for disparate groups to take positions on legislative or policy proposals,” Lorber said. “Civil Rights organizations have traditionally argued that government contractors should face enhanced oversight of their personnel practices. Employer and contractor organizations seem to argue that the OFCCP should focus its efforts on affirmative action, diversity and inclusion and recognize the long standing Memorandum of Understanding (MOU) with the EEOC which charges the EEOC with the responsibility for discrimination reviews. There is a concern that the mingling of different authorities and responsibilities could lead to the EEOC using the OFCCP authority to have unlimited access to all personnel records and threaten procurement action in Title VII or ADA complaint situations and the OFCCP using the EEOC authority to demand punitive and compensatory damages and access to federal courts to further put pressure on contractors it has under review.”

“The only way a ‘Super EEO Enforcement Agency’ would be created would be if the authorities of the two agencies were intermingled,” Lorber continued.  “It would perhaps be helpful if the decision makers reviewed the legislative history of the 1972 Equal Employment Opportunity Act to familiarize themselves with the arguments which led to the defeat of the proposal then to merge the agencies.”

“The current administration is under terrific pressure from all sides,” Gabor said. “It is difficult to predict how that pressure will influence its decision making. At the same time, it is not always clear what will ultimately influence its decisions.”

Affirmative action. Neither the Appendix section regarding the OFCCP nor the DOL Budget Justification for the OFCCP mention what the combined agency would do regarding affirmative action. At a House Appropriations Labor, Health and Human Services, Education, and Related Agencies Subcommittee hearing on June 7, 2017, Secretary of Labor Alexander Acosta indicated that there would not be a reduction in the scope of EO 11246.

Among the issues with merging the two agencies is the fact that the EEOC doesn’t have statutory authority to enforce EO 11246, VEVRAA or Section 503 of the Rehab Act. While the non-discrimination requirements of the laws enforced by the OFCCP largely overlap with the those of the laws enforced by the EEOC, whether the affirmative action areas that are unique to OFCCP enforcement will stay within the DOL, be transferred to the EEOC, or be eliminated entirely, is still an issue, Fox has explained. Any of these options would require some Congressional action as well as the President amending EO 11246. All three attorneys said there was a lack of clear direction on this issue.

“We all wait to learn more about directives from Washington,” Gabor observed. “It is extremely difficult to predict what will happen down the road.”

“There has been no guidance as to how the affirmative action functions would continue and what changes would be made in EO 11246, Section 503 of the Rehabilitation Act or VEVRAA other than that the responsibility would be shifted to the EEOC,” Lorber noted. “It is somewhat implicit in the Budget guidance that the OFCCP’s authority over procurement would be even more directed at addressing discrimination since the justification suggested that the agencies had the same responsibilities but there has been no further explanation.  The absence of any more specifics may reflect the fact that implementing this change would require legislative changes.”

“The White House has purposely not thought through the details of the transfer,” Fox said. “This may turn out in retrospect to be a poor strategic decision from the White House’s perspective since the fear of the unknown is rallying opposition to the merger proposal among the government contractor community. The White House was ‘painting’ the merger idea with a broad and simple brush: just merge two civil rights agencies in a time the federal government can no longer financially afford the luxury of redundant agencies. The White House thinks of this transfer as a simple, obvious, streamlining activity like any of the thousands of business mergers which occur each year in America. Politics did not drive the White House’s merger decision. Rather, the White House has left it to senior Department of Labor officials and EEOC Acting Chair Lipnic to spend the next year planning the details of the merger.”

As to those details, “there are many ways to ‘skin the cat,’’ Fox noted. “Ms. Lipnic is likely going to be the key architect of the transfer and will decide: (1) whether she will create separate affirmative action teams different from the Commission’s discrimination investigation teams; and (2) whether the OFCCP program will be run centrally—perhaps only from Washington D.C. (as the Government Accountability Office (GAO) has charged the OFCCP to consider) or through EEOC regional offices—or whether to continue the OFCCP’s decentralized enforcement design.”

Required Congressional actions. On top of the affirmative action issue, the EEOC does not currently have the authority to do several other things that the OFCCP does, including bringing administrative actions to debar federal contractors. The DOL’s budget justification as to the OFCCP calls on the agency to draft and review: (1) legislative proposals to amend VEVRAA and Section 503; and (2) a new Executive Order amending EO 11246. In addition, the agency would need to draft/revise its EO 11246, VEVRAA, and Section 503 regulations to implement the transfer of authority. The attorneys all agreed that no changes to the statutes enforced by the EEOC would be required to effectuate this transition.

Opportunity to change laws enforced by the EEOC? Even so, Employment Law Daily asked if Congress might still take such a merger process as an opportunity to make changes to the laws enforced by the EEOC. “No,” Fox said. “Not in a modern Republican Administration which is not intent on expanding the administrative state. The last Republican who believed in and supported the administrative state was Richard Nixon.”

“Also, the tide seems to have turned in America against ‘big government’ and a smaller federal government  now appears to very much be a national goal, except among progressive Democrats. The FY 2018 budget will be a telling referendum on the fate of the administrative state. This debate is important because OFCCP’s budget is caught up, like most federal executive agencies currently, in that over-arching political debate in Washington D.C.”

Noting his previous comment regarding the MOU between the two agencies, Lorber said, “it would be helpful if the OFCCP followed the Memorandum of Understanding and did not try to replicate the functions of charge driven investigation and enforcement. Functions would not have to be merged if the existing protocols and procedures were followed. The agencies could certainly be more cooperative if these policies were followed and if the agencies followed the prescripts of Section 715 of Title VII [Equal Employment Opportunity Coordinating Council] and Section 12117(b) of the ADA [which covers the coordination of the EEOC’s ADA enforcement and the OFCCP’s Section 503 enforcement].

“There has been a push to amend the ADEA to make it more consistent with Title VII in order to avoid disparate impact and illegal hiring practices,” Gabor noted. “The ADEA was written roughly three years after Title VII and left out some of the language contained in Title VII.”

Skilled Regional Centers. The proposed budget allows for the OFCCP to continue with its plan to establish two Skilled Regional Centers located in the Pacific (San Francisco) and Northeast (New York) regions. These centers would have highly skilled and specialized compliance officers capable of handling various large, complex compliance evaluations in specific industries, such as financial services or information technology. In addition, they would reduce the need for a network of field area and district offices, according to the proposal.

“If the agencies were merged, operational differences or initiatives such as the Skilled Regional Centers would obviously have to be reconsidered,” Lorber noted.  “The key question is ‘what is the purpose of the merger?’ If the purpose of the merger is to achieve some degree of economy of scale, then agency specific functions such as the Skilled Regional Centers would have to be reviewed for continued viability.”

“This [merger] will logically present logistical challenges that may impact [the combined agencies’] ability to cover the nation.” Gabor observed. “I don’t think that employers should be wary of a Super EEO Enforcement Agency. The greater question would be the resources that the agency has.”

“Ms. Lipnic will work this issue through,” Fox said, noting again that there are many ways to approach this task. “However, the EEOC already has ready and harmonious administrative vehicles to accommodate the OFCCP’s two Skill Centers in that the EEOC has already created specialized systemic discrimination units in San Francisco and New York,” he observed.

EEO-1 Report. Federal regulations currently require that all employers in the private sector with 100 or more employees, and some federal contractors with 50 or more employees, annually file the EEO-1 Report, with the Joint Reporting Committee — a joint committee consisting of the EEOC and the OFCCP.

“Another effect of the merger would undoubtedly be to examine how the EEO-1 Report would be compiled as there are different standards for government contractors and Title VII covered employers,” Lorber said.

A controversial pay data reporting requirement, added to the EEO-1 by the Obama Administration back in September 2016, was stayed by the Trump Administration on August 29, 2017. Neomi Rao, Administrator of the OMB’s Office of Information and Regulatory Affairs informed the EEOC via a memo that the OMB, pursuant to  its authority under the Paperwork Reduction Act, is initiating a review of the effectiveness of that pay data collection component.

That compensation data reporting requirement would have required employers “to present a tremendous amount of information to the EEOC that employers have never before been required to produce,” Gabor stated. “To me, [such a requirement would have presented a] much greater risk of enforcement action.”

Both the OMB and the EEOC had the power to reverse course on the compensation reporting component, Fox has noted; but the action came from the OMB because the Republicans won’t have a 3-2 majority on the Commission, and presumably the votes withdraw the requirement, until President Trump has all his appointments in place. Currently still pending Senate confirmation are President Trump’s selection of Janet Dhillon, to be EEOC Chair, and Daniel M. Gade to be a Commissioner. Acting EEOC Chair Lipnic voted against the pay data reporting requirement when it was before the Commission during the Obama Administration.

Issues identified by 2016 GAO report. On September 22, 2016, the GAO issued a report identifying and discussing multiple deficiencies with OFCCP enforcement. The report concluded that the OFCCP’s process in selecting federal contractors for compliance evaluations, the agency’s primary tool for enforcement, is not designed to focus on contractors with the greatest risk of noncompliance. Among its other findings, the report determined that the OFCCP is not providing consistency in its enforcement efforts across its offices because it is failing to timely train new compliance officers and provide essential ongoing professional training for all of its compliance officers. The proposed merger would “[a]bsolutely” help remedy some of the problems identified in the report, Fox said.

“The OFCCP would have to devote resources to adequately train its compliance officers in response to the GAO report regardless of the merger,” Lorber noted.  “EEOC personnel assigned to OFCCP functions would have to be trained in the full gamut of OFCCP activities.”

“One of the benefits from the merger would be the prospect of better education and training that would help employers avoid potential conflicts,” Gabor said.

Other ways to improve efficiencies? Even if this full merger doesn’t happen, are there ways the two agencies could work together to improve efficiencies?

“Yes,” Fox said, “but the efficiencies and cost savings of the two agencies working more closely together but without merging are ‘small change.’”

“From a procedural standpoint, it would be great of the agencies would have joint mission statements and joint enforcement memoranda,” Gabor said. “This would also be true of other agencies such as the NLRB and the DOL. Imagine if employers could ‘one stop shop’ to remain current on what is coming out of Washington.”

“The OFCCP could again exercise its discretion, interrupted in the waning days of the Obama Administration, to refer as much of its complaint docket to the EEOC as possible,” Fox explained. As an example, he said the OFCCP could return to the “historic policy” of referring individual complaints of discrimination under EO 11246 and Section 503 to the EEOC for investigation and prosecution.

“But, remember, the White House consciously chose not to bifurcate the OFCCP’s authority and did NOT propose to send OFCCP’s discrimination law authority to the EEOC while keeping the affirmative action authority at the DOL. So, if the merger fails, I believe The White House will continue to try to treat the OFCCP like it is treating almost all other federal agencies: by substantially reducing it in size.”

Budget will continue to be a concern. “Also, if merger fails, OFCCP still has all the same administrative, training and enforcement problems it has now and with inadequate budget and no plan to fix the agency,” Fox pointed out. “The EEOC merger proposal may well look, at this point in time, like Carpathia unto Titanic to OFCCP personnel.”

The White House’s FY 2018 budget proposal calls for $88 million in funding for the OFCCP, down from the current $105 million funding level. This funding level would include 440 full-time equivalent (FTE) employees, down from the current FY 2017 estimate of 571 FTEs. On top of reducing the overall number of FTEs, the proposed budget calls for the OFCCP to consider reducing the number of its field office locations. On July 19, 2017, the House Appropriations Committee approved the draft FY 2018 Labor, Health and Human Services, and Education funding bill which would allot the OFCCP $94.5 million. The Senate has yet to propose its FY 2018 budget for the DOL/OFCCP.

“If the White House’s FY 2018 budget proposal for OFCCP comes to pass, the merger will not be the primary concern as to OFCCP,” Fox said. “Rather, the small size of the agency will drive civil rights concerns and government contractor vendor concern since the agency, at an $88M budget figure and with only 440 resulting employees, would cease to be large enough to function effectively…like cutting the roots while the plant above the ground otherwise appears to be healthy, for the moment. Even at OFCCP’s current 551 authorized employee headcount (571 minus the 20 employee loss occasioned by the recently passed FY 2017 budget), OFCCP is too small to function effectively and efficiently. This is another reason why a merger with the EEOC (and OFCCP’s overnight acquisition of the EEOC’s mature infrastructure, significantly better managerial staff, and extensive training college) would make great sense from an administrative point of view, even if not a compelling political action.”

Buyouts. In addition, Fox noted that the OFCCP’s union estimates that as many as 50-75 OFCCP employees from across all OFCCP offices and ranks could leave the agency as a result of two buyout offers (Voluntary Separation Incentive Payments and Voluntary Early Retirement Authority) detailed by Acting Director/Deputy Director Dowd in an August 18, 2017 memo sent to agency employees (Fox posted the memo as part of his August 28 blog for Direct Employer’s OFCCP Week in Review). The OFCCP will have to reduce staff out of necessity due to budget reductions and increased agency operating costs, he explained. Interestingly, “Secretary Acosta has decided to down-size OFCCP EVEN BEFORE the Senate weighs in with its FY 2018 budget for the DOL and the OFCCP,” Fox observed.

Given these anticipated staff reductions, which will likely result in the elimination of some of the agency’s brick and mortar offices, “a merger of OFCCP and EEOC is almost pre-ordained,” Fox concluded. “The question then becomes not whether, but only when.”

[Wolters Kluwer Note: After press time on September 7, 2017, the date this article was published in Employment Law Daily, the Senate Appropriations Committee announced its approval, by a 29-2 vote, of the FY 2018 Labor, Health and Human Services, and Education and Related Agencies Appropriations Bill. In its report on the bill, posted the following day, the Committee rejected the proposed merger and recommended $103,476,000 in FY 2018 funding for the OFCCP. It also instructed the OFCCP to report to the Committee within 180 days with an inventory of its current infrastructure and a plan to consolidate and “right size” the agency. ]