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Trump Agencies Aim to Reshape Workplace Anti-Bias Enforcement

Oct. 26, 2020, 11:14 PM

The Trump administration is moving to transform enforcement of workplace anti-bias laws by restricting the Labor Department’s ability to refer complaints from individual workers to the Equal Employment Opportunity Commission and giving the Justice Department heightened oversight, Bloomberg Law has learned.

The changes come in the form of an update to an existing memorandum between two of the three agencies, which has yet to be finalized, according to two sources familiar with the plans and EEOC Democratic Commissioner Charlotte Burrows.

The changes could result in the Labor Department’s federal-contractor watchdog having fewer resources to focus on conducting companywide audits, a method it uses to root out systemic forms of discrimination.

Burrows, one of two Democrats on the EEOC’s five-person leadership panel, said in a statement that the proposal “threatens to undermine the independence of the Commission as the primary federal agency charged with protecting American workers against workplace discrimination.”

Political leaders at DOL, EEOC, and the Justice Department agreed on a draft update to the memorandum, said the two sources, who spoke on condition of anonymity because they weren’t authorized to discuss the process.

The original memo, first established in 1970 and last updated in 2011, governs interagency coordination in the enforcement of equal employment opportunity laws, said Kimberly Smith-Brown, an EEOC spokeswoman. She declined to comment on specifics or to respond to Burrows’ statement.

The draft update contains two main changes. First, DOL’s Office of Federal Contract Compliance Programs, which enforces workplace civil rights laws among federal contractors, would retain responsibility for investigations that respond to an individual employee of a federal contractor accusing an employer of discrimination. That’s a sharp divergence from DOL’s traditional practice of redirecting such cases to the EEOC, which enforces workplace civil rights laws among all employers and has greater bandwidth to pursue such cases.

Second, the updated memo would bar the EEOC from contradicting the Justice Department in litigation. That change appears to have been motivated by the commission disagreeing with the Trump DOJ several times over the past few years by arguing in favor of workplace protections for lesbian, gay, bisexual, and transgender workers before the U.S. Supreme Court.

Curbing Agency Rifts

The EEOC scheduled a Nov. 2 public hearing on the updated memo, and the GOP-majority commission is expected to vote on the changes at that time.

The proposals are likely to be approved now that the EEOC has two new Republican commissioners, giving its leadership panel its first full complement of commissioners during the Trump administration.

The OFCCP had agreed in a 2011 memorandum to refer individual-worker discrimination complaints to the EEOC. The proposed update could create a risk of the DOL subagency becoming swamped in dealing with single-worker charges, resulting in fewer resources to audit larger companies. The OFCCP audits only about 1% to 2% of federal contractors annually, due to low staff numbers.

That could prompt DOL leaders to begin deploying limited enforcement resources on lower-value, individual cases rather than thoroughly investigating alleged racial or gender bias affecting thousands of workers at larger federal contractors. In the past, companies such as Microsoft Corp., JPMorgan Chase & Co., Wells Fargo, and other corporate giants have settled allegations of discrimination stemming from OFCCP audits.

Both provisions of the revised memo will likely face a fierce partisan debate at next week’s EEOC hearing, which the agency announced Monday. The agencies haven’t released a copy of the document, and the EEOC’s policy is to not disclose the full contents of proposals before a hearing.

Burrows expressed alarm that the changes “could allow OFCCP to use Title VII to enforce the new and controversial Executive Order 13950 on Combating Race and Sex Stereotyping.”

The executive order, which President Donald Trump signed Sept. 22, banned federal contractors from facilitating training that implies a worker is “inherently racist, sexist, or oppressive, whether consciously or unconsciously,” based on their race or sex. Trump tasked the OFCCP with enforcing the mandate.

DOL spokeswoman Megan Sweeney said in an emailed statement: “The proposal updates the existing MOU by including DOJ, thereby strengthening the relationship between OFCCP, EEOC, and DOJ and ensuring more effective enforcement of EEO obligations for America’s workforce.”

Media representatives for the Justice Department didn’t immediately respond to a request for comment.

Enhance OFCCP Portfolio

The updated memo would limit the EEOC’s ability to take a stance on novel legal issues independent of the Justice Department, a marked change considering the quasi-independent agency’s recent track record.

The EEOC and DOJ have clashed on a number of high-profile matters during the Trump administration, including on whether workplace civil rights protections extended to LGBT workers. In June, the high court sided with the EEOC, dealing a setback to Trump’s DOJ, in a landmark ruling that held that federal anti-discrimination protections do apply to LGBT workers.

The two agencies have also disagreed on approaches to disability discrimination and criminal background checks.

The DOL’s Sweeney said the OFCCP previously was required to refer to the EEOC complaints from individual workers that implicated both Title VII of the 1964 Civil Rights Act, which the EEOC enforces, and Executive Order 11246, which the OFCCP enforces. The two anti-discrimination laws are similar, but separate.

The updated memo, Sweeney said, gives the OFCCP the option of retaining an individual worker’s complaint. The agency could try to settle the allegation with the company, “but the EEOC would have the opportunity to object,” she said.

If the OFCCP and the company don’t reach a settlement, the Title VII components of the complaint would have to be sent over to the EEOC, Sweeney said.

“Requiring OFCCP to investigate individual complaints is not problematic in theory. But without an increase in training and staff resources, it’s hard to see how this will not bog down an already-understaffed agency,” said Adam Pulver, a former DOL civil rights attorney who’s now with Public Citizen, a Washington-based consumer advocacy group.

“In addition, we’ve seen the current administration try to politicize OFCCP of late—something which EEOC is more structurally insulated from,” he added. “One would hope DOL political leadership would not politicize investigations.”

Sweeney said the updated memo “also includes religious liberty and conscience protections for workers among the subjects on which the agencies will confer and coordinate, reflecting the vital importance of those protections.”

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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