By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On November 2, 2020, the EEOC held its first public meeting of its fiscal year, and the first meeting with its three new commissioners. The public meeting was held so that the Commission could consider a proposed memorandum of understanding (“MOU”) between the EEOC, the Department of Labor (“DOL”), and the Department of Justice (“DOJ”) aimed at recommitting to collaboration between the agencies and coordinating efforts to protect civil rights in the workplace. At the conclusion of the meeting, the EEOC voted in favor of entering into the MOU. This is an important development for all employers.

The EEOC held its November 2 meeting remotely and, per the requirements of the Sunshine Act, it was open for the public to call in and listen to the proceedings. EEOC Chair Janet Dhillon, Vice Chair Keith Sonderling, and Commissioners Charlotte Burrows, Jocelyn Samuels, and Andrea Lucas were all present to discuss the content of the draft agreement between these three agencies.  EEOC attorney Andrew Maunz outlined the mechanics of the MOU, which is an updated version of the agreement that has been in place between the EEOC and DOL since 1970.

While the full details of the MOU have not yet been released, four key provisions of the MOU were outlined during the meeting:

  • First, the latest MOU adds the DOJ as a signatory so that all three agencies responsible for enforcing the protections of Title VII are aligned. This is significant, given the disconnect between the DOJ and the EEOC on certain issues such as the application of Title VII to sexual orientation discrimination.
  • Second, the MOU seeks to promote accountability and makes high level officials at each agency responsible for any disclosures of information under the MOU.
  • Third, the MOU strengthens procedures for coordination between the three agencies at the field and headquarters levels, including discussions on enforcement priorities, finding efficiencies and eliminating duplication, and coordinating on issues like religious liberty, conscious protections, and novel or unique issues.
  • Fourth, the MOU seeks to bring greater efficiencies to the investigation process, including allowing the Office of Federal Contract Compliance Programs (“OFCCP”), the part of the DOL responsible for ensuring that employers contracting with the Federal government comply with the laws regarding nondiscrimination, to retain and investigate an individual charge of discrimination without seeking the permission of the EEOC or coordinating investigations between the EEOC and OFCCP, making it less likely that employees or employers need to deal with multiple agencies for the same claim or that multiple agencies reach different conclusions.

During the discussion of the MOU, Commissioners Samuels and Burrows, the two Democratic commissioners in the EEOC leadership, proposed several amendments to the MOU to address operational concerns with the MOU and expressed concerns that the MOU undermines the EEOC’s autonomy in its enforcement of Title VII. However, the outcome of the proposed amendments highlights the politics currently at play at the EEOC, as all 11 of the proposed amendments were voted down by the Republican Commissioners. Ultimately, though Commissioners Samuels and Burrows voted against it, the EEOC voted to approve the interagency MOU.

Implications For Employers

Though the full details of the MOU have yet to be released, the EEOC appears to be taking strides to coordinate with its fellow federal agencies to improve the efficiency and consistency in the enforcement of workplace discrimination laws. The EEOC’s efforts to address issues caused by the investigation of charges by multiple agencies will hopefully streamline the process for employers facing such multiple charges and avoid any inconsistent determinations by separate agencies.

This MOU is the latest in a series of high priority press releases issued by EEOC over the past few months. The ongoing changes at the Commission are a must-watch for employers as the EEOC kicks off its 2021 fiscal year.