The U.S. Department of Justice, the U.S. Department of Labor’s Office of Contract Compliance Programs, and the U.S. Equal Employment Opportunity Commission have issued notices in the Federal Register of significant regulatory changes in the area of equal opportunity, nondiscrimination, and affirmative action. These regulations cover a wide spectrum of activities related to recipients of federal financial assistance, private sector employers of 15 or more employees, and government contractors and subcontractors. To obtain additional information regarding these and other pending regulatory changes, you may go to www.regulations.gov.
√ Joint Regulation: EEOC, OFCCP, the U.S. Department of Justice and Disability-Based Discrimination Complaint Procedures
Title: Revisions to Procedures for Complaints or Charges of Employment Discrimination Based on Disability Subject to the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973
The proposed regulation will be issued in March 2014 in the Federal Register. CFR Citation: 29 CFR 1640 (To search for a specific CFR, visit the Code of Federal Regulations )
Abstract: The EEOC has a joint regulation with the Department of Justice (DOJ) to explain how Federal agencies that provide financial assistance should process disability-based employment discrimination complaints/charges against entities subject to both title I of the Americans with Disabilities Act, as amended (ADA) (prohibiting disability-based employment discrimination by employers with 15 or more employees), and section 504 of the Rehabilitation Act (Section 504) (prohibiting disability-based discrimination in programs or activities receiving Federal financial assistance). This proposed rule would amend this joint regulation to revise the definitions of certain terms and clarify the procedures for referring these complaints/charges between agencies with responsibility for enforcing title I of the ADA and section 504. In drafting this regulation, EEOC will explore ways to make it more consistent with two other coordination regulations (29 CFR part 1641 and 29 CFR part 1691), as well as with the recently revised Memorandum of Understanding (MOU) between the EEOC and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP). This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII of the Civil Rights Act of 1964, as amended, and/or Executive Order 11246. The proposed rule would also incorporate provisions established by the DOJ’s rule on title II of the ADA (which prohibits discrimination on the basis of disability in all programs and activities of State and local government entities) for coordinating the processing of discrimination complaints that: (1) Fall within the jurisdiction of title II and title I (but are not covered by section 504); and (2) fall within the jurisdiction of title II, but not title I (whether or not they are covered by section 504). See 28 CFR 35.171(b)(2) and (3). The revisions described above would not impact the portions of the regulation addressing title II.
√ Joint Regulation: EEOC, OFCCP, and Disability-Based Discrimination Complaints Against Government Contractors or Subcontractors
Title: Revisions to Procedures for Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers Holding Government Contracts or Subcontracts
The proposed regulation will be issued in March 2014 in the Federal Register. CFR Citation: 29 CFR 1641 (To search for a specific CFR, visit the Code of Federal Regulations )
Abstract: The EEOC has a joint regulation with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) to coordinate the processing of disability-based employment discrimination complaints/charges filed against employers holding Government contracts or subcontracts, where the complaints/charges appear to state a claim under both section 503 of the Rehabilitation Act (Section 503) (requiring affirmative action and prohibiting disability-based employment discrimination by Federal Government contractors and subcontractors), and title I of the ADA (prohibiting disability-based employment discrimination by employers with 15 or more employees). This proposed rule would amend this joint regulation to revise the definition of certain terms and clarify the procedures for referring these complaints/charges between the agencies with responsibility for enforcing section 503 and title I of the ADA. In drafting this regulation, EEOC will explore ways to make it more consistent with two other coordination regulations (29 CFR part 1640 and 29 CFR part 1691), as well as the recently revised Memorandum of Understanding between EEOC and OFCCP. This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII of the Civil Rights Act of 1964, as amended and/or Executive Order 11246.
√ Joint Regulation: EEOC, U.S. Department of Justice and Employment Discrimination Complaints Against Recipients of Federal Financial Assistance
Title: Revisions to Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial Assistance
The proposed regulation will be issued in March 2014 in the Federal Register. CFR Citation: 29 CFR 1691 (To search for a specific CFR, visit the Code of Federal Regulations )
Abstract: The EEOC has a joint regulation with the Department of Justice (DOJ) to explain how Federal agencies that grant financial assistance or revenue sharing funds should process complaints of employment discrimination subject to various EEO statutes if the complaints allege discrimination that is also prohibited by title VII of the Civil Rights Act of 1964, as amended (Title VII), or the Equal Pay Act of 1963 (EPA). This proposed rule would amend this joint regulation to revise the definitions of certain terms and clarify the procedures for handling these complaints. In drafting this regulation, EEOC will explore ways to make it more consistent with two other coordination regulations (29 CFR part 1640 and 29 CFR part 1641), as well as the recently revised Memorandum of Understanding between EEOC and the Department of Labor’s Office Federal Contract Compliance Programs. This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII and/or Executive Order 11246. The relevant EEO statutes are: Title VI of the Civil Rights Act of 1964, title IX of 1972, the State and Local Fiscal Assistance Act of 1972, as amended (the revenue sharing act), and provisions similar to title VI and title IX in Federal grant statutes to the extent they prohibit discrimination on the basis of race, color, religion, sex, or national origin.
√ OFCCP To Propose Regulations to Improve Affirmative Action for Women and Minorities in the Construction Industry
Title: Construction Contractors’ Affirmative Action Requirements
The proposed regulation will be issued in October 2013 in the Federal Register.
CFR Citation: 41 CFR 60-1; 41 CFR 60-4 (To search for a specific CFR, visit the Code of Federal Regulations )
Abstract: The regulations implementing the affirmative action obligations of construction contractors under Executive Order 11246, as amended, were last revised in 1980. Recent data show that disparities in the representation of women and racial minorities continue to exist in on-site construction occupations in the construction industry. This Notice of Proposed Rulemaking (NPRM) would revise 41 CFR part 60-1 and 60-4 by removing outdated regulatory provisions, proposing a new method for establishing affirmative action goals, and proposing other revisions to the affirmative action requirements that reflect the realities of the labor market and employment practices in the construction industry today.
√ OFCCP To Propose Regulations to Eliminate Sex- and Race-Based Compensation Discrimination
Title: Nondiscrimination in Compensation: Compensation Data Collection Tool
The proposed regulation will be issued in October 2013 in the Federal Register.
CFR Citation: 41 CFR 60-2 (To search for a specific CFR, visit the Code of Federal Regulations )
Abstract: Compensation discrimination is one form of discrimination that Executive Order 11246 prohibits. Eliminating sex- and race-based compensation discrimination continues to be a priority for OFCCP. To this end, OFCCP will develop a new compensation data collection tool to identify contractors likely to violate the Executive Order. In addition, the data collection tool could play a key role in OFCCP’s establishment-specific, contractor-wide, and industry-wide analyses. Through publication of Notice of Proposed Rulemaking (NPRM), OFCCP will seek to develop an effective and efficient data collection instrument.
√ OFCCP To Propose Regulations to Eliminate Sex- and Race-Based Compensation Discrimination
Title: Sex Discrimination Guidelines
The proposed regulation will be issued in November 2013 in the Federal Register.
CFR Citation: 41 CFR 60 (To search for a specific CFR, visit the Code of Federal Regulations )
Abstract: The Office of Federal Contract Compliance Programs (OFCCP) is charged with enforcing Executive Order 11246, as amended, which prohibits Federal Government contractors and subcontractors from discriminating against individuals in employment on the basis of race, color, sex, religion, or national origin, and requires them to take affirmative action. OFCCP regulations at 41 CFR part 60-20 set forth the interpretations and guidelines for implementing Executive Order 11246, as amended, in regard to promoting and ensuring equal opportunities for all persons employed or seeking employment with Government contractors and subcontractors without regard to sex. This nondiscrimination requirement also applies to contractors and subcontractors performing under federally assisted construction contracts. The guidance in part 60-20 is more than 30 years old and warrants a regulatory lookback. OFCCP will issue a Notice of Proposed Rulemaking to create sex discrimination regulations that reflect the current state of the law in this area.
√ OFCCP To Issue Final Regulations to Addressing Affirmative Action and Nondiscrimination Obligations of Government Contractors and Subcontractors With Regard to Protected Veterans
Title: Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans
The final regulations will be issued in July 2013 in the Federal Register.
CFR Citation: 41 CFR 60-250; 41 CFR 60-300 (To search for a specific CFR, visit the Code of Federal Regulations )
Abstract: This Rulemaking would revise the regulations in 41 CFR parts 60-250 and 60-300 implementing the nondiscrimination and affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). This Rulemaking would strengthen the affirmative action requirements for Federal contractors and subcontractors. The rule would amend the regulations to require that Federal contractors and subcontractors conduct more substantive analyses of recruitment and placement actions taken under VEVRAA and would require the use of benchmarks to measure the effectiveness of affirmative action efforts. The rule would also make revisions to recordkeeping requirements.
√ About Seena Foster
Seena Foster, award-winning civil rights author and Partner of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers Webinars, full-day and half-day in-person training sessions, assistance developing procedures, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. The federal law on discrimination is complex and affects our workplaces as well as the delivery of our federally funded programs and activities. Her book, Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors. You may contact her through www.titleviconsulting.com.