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Proposed EEOC-OFCCP Merger Faces Opposition from Employers and Civil Rights Groups

As the 2018 fiscal budget begins to take shape, the Trump administration is proposing a merger between the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), a subagency of the Labor Department that monitors affirmative action and nondiscrimination compliance for federal contractors.

According to the president’s proposed budget, the two agencies would be combined to create “one agency to combat employment discrimination.” Because the EEOC’s mandate is broader, it’s being assumed that it will absorb the OFCCP.

While the proposal has a long road ahead of it, including Congressional approval, employers and civil rights groups are already voicing their opposition, citing fundamental differences between the two agencies:

  • While the OFCCP seeks only contract remedies, the EEOC is charged with enforcing Title VII of the Civil Rights Act of 1964. Application of Title VII to contract breaches could result in higher penalties for employers.
  • The ultimate penalty the OFCCP can enforce is debarment (preventing contractors from pursuing federal contracts in the future). If debarment authority is transferred to the EEOC, some see this as consolidating too much power under one agency.
  • Unlike the OFCCP, the EEOC has subpoena authority. If a merger occurs, this authority could be invoked in cases involving federal contractors.
  • Since the OFCCP has access to affirmative action plans, it can access information that currently lies outside of the EEOC’s authority, such as data concerning hiring, testing, and promotions. A merger could mean that this information becomes admissible in employer discrimination suits.

Groups opposed to the merger include such unlikely allies as the NAACP, the U.S. Chamber of Commerce, business associations, and employee rights groups.

Currently it appears unlikely that the merger will pass; we will keep you posted on further developments.

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