
Employers and employee rights groups are rarely on the same
side of regulatory matters, but in this case, there is almost unanimous
opposition to the proposed agency merger. Presumably, the Trump administration
believes an EEOC and OFCCP merger is a plausible streamlining approach, because
both organizations focus on enforcing federal laws focused on employment
discrimination. Employee groups, however, worry that a merger will result in
decreased enforcement efforts due to a lack of adequate agency funding, staff,
and resources. The Trump administration’s merger proposal provides for the EEOC
to absorb the OFCCP with no new financial resources to address merger
logistics.
In turn, employers are concerned that a merger could result
in new enforcement hammers for the EEOC. While the EEOC and OFCCP both enforce
discrimination laws, their focus and enforcement models differ. The primary
focus of the EEOC is to enforce federal anti-discrimination laws (e.g. Title
VII, the Americans with Disabilities Act, the Age Discrimination in Employment
Act, and the Equal Pay Act). The OFCCP focuses on the other side of the
discrimination coin – namely, affirmative action laws (e.g. Executive Order
11246, the Vietnam Era Veterans Readjustment Assistance Act, and Section 503 of
the Rehabilitation Act) that require federal contractors to seek a diverse
employee base through non-discrimination and proactive goal setting and
recruiting measures. Under the current enforcement model, the EEOC has no
inherent authority to impose monetary sanctions on employers, but can negotiate
settlements with employers or litigate to a potential judgment. The OFCCP has
more leeway, however, to conduct random audits of government contractors and,
upon a finding of a violation, to negotiate a resolution that includes monetary
sanctions given its authority to disqualify an employer from being a federal
contractor. Despite funding and resource challenges, an agency merger might
allow the EEOC to expand its enforcement efforts with respect to federal
contractors through new audit and enforcement mechanisms.
It remains unclear, though, whether the Trump
administration’s proposed budget will be approved and whether the proposed
EEOC-OFCCP merger will occur. This same agency merger has been suggested by
previous presidential administrations, but it has never happened. In addition,
the EEOC’s and OFCCP’s authority stems from legal requirements that may need to
be amended, requiring congressional action, in order for enforcement authority
to be merged into one agency. As such, there are significant hurdles that must
be overcome before a merger could occur. For now, employers should stay tuned,
and we will update our readers if the proposed merger gains traction.
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