Preliminary Transcript: Meeting of November 2, 2020 - Discussion of a Memorandum of Understanding among the U.S. Department of Labor, the Equal Employment Opportunity Commission, and the U.S. Department of Justice

Dhillon: Good afternoon, everyone. Welcome to the meeting of the Equal Employment Opportunity Commission. The meeting will now come to order. A quorum is present. This meeting was noticed and is being held today in accordance with the requirements of the Sunshine Act. Today's meeting is open to the public to listen to the commission's deliberations and voting. Welcome and thank you to my fellow commissioners, to all EEOC staff, and members of the public who are participating by phone.

To access our closed captioning service, please go to www.eeoc.gov/newsroom, and click on the link. I would like to extend a special welcome to our new commissioners, Vice Chair Keith Sonderling, Commissioner Jocelyn Samuels, and Commissioner Andrea Lucas. Thank you to all of the EEOC employees, who have worked diligently to prepare this meeting, including my staff, the staff of my fellow commissioners, the Office of Legal Counsel, the Office of Information Technology, the Office of Communications and Legislative Affairs, and the Executive Secretariat.

Since our last commission meeting in August, the EEOC’s 2020 fiscal year has come to a close. This meeting, therefore, marks the first commission meeting in fiscal year 2021, and sets the stage for what I anticipate will represent yet another year of significant accomplishments, in pursuit of equal employment opportunity for the nation's workforce.

The commission is cognizant of the need for COVID-19 related guidance to address novel issues, currently facing both employees and employers. We continue to periodically update our technical assistance on COVID-19, and its implications on federal employment discrimination laws. If you have not already done so, I encourage you to take a look at the what you should know about COVID-19 and the ADA, the Rehabilitation Act, and the other EEO laws available on our website at eeoc.gov.

Throughout this challenging period, EEOC employees have remained steadfast in their dedication to the EEOC’s mission. Every day, I am inspired by the actions of EEOC employees across the agency, who are rising to the occasion, to address the needs of victims of discrimination. I want to take this opportunity to thank all of you, for your inspiring efforts and hard work.

Before we begin deliberations, I'd like to briefly explain the procedures for this meeting. A verbatim transcript will be made of today's proceedings. For that purpose, the meeting is being recorded. We will post a transcript of the meeting on the EEOC’s website @www.eeoc.gov. As the presiding officer, I'm responsible for regulating the course of this meeting, and will dispose the procedural matters. While this meeting is open to the public, remarks and questions will not be taken from the audience.

The purpose of today's meeting is to deliberate and vote on an updated version of the Memorandum of Understanding between the United States Department of Labor, Office of Federal Contract Compliance Programs, and the EEOC, and the Department of Justice. Our legal counsel, Andrew Maunz, will provide a summary of the item and be available to answer the commissioner's questions. Following his presentation, I will call on each commissioner to address the matter at issue.

We will have two rounds of comments and questions from each commissioner. During these rounds, commissioners may pose questions to the presenter, and offer his or her own comments and observations. If a commissioner seeks to amend an agenda item, he or she must offer that amendment while he or she has the floor. If the motion to amend is seconded, we will move to a debate on the proposed amendment. After the amendment is voted on, we will resume debate on the underlying agenda item, which may or may not have been amended.

Before I turn it over to Andrew, I'd like to first acknowledge that this proposed update to the MOU, represents a re-commitment to OFCCP’s and EEOC’s collaboration, and brings together for the first time in a coordinated effort, the work of the three federal government agencies, whose missions are rooted in protecting civil rights in the workplace. This document has been internally reviewed by career staff at all three agencies. The language is purposely flexible in particular areas, to allow for adjustments and implementation, if necessary. If passed, I believe it will strengthen our collective capacity to prevent, remedy, and eradicate discrimination in the workplace. I will now turn it over to Andrew.

Andrew: Chair Dhillon, Vice Chair Sonderling, and Commissioners Burrows, Samuels, and Lucas, thank you for the opportunity to participate in today's meeting. I'm here to discuss a Memorandum of Understanding that is currently before the commission for consideration. The MOU currently being considered, updates an MOU that the commission has had in place with the Department of Labor's Office of Federal Contract Compliance Programs, OFCCP since 1970.

The OFCCP MOU has been updated several times over the years, most recently in 2011. Section 715 of Title VII, that's the commission with the authority to implement agreements designed to maximize effort, promote efficiency, and eliminate conflict, competition, duplication, and inconsistency among the operations, functions, and jurisdictions of the various departments, agencies, and branches of the federal government, responsible for the implementation and enforcement of Equal Employment Opportunity legislation, orders, and policies.

Also, Section 705 G1 gives the commission the authority to cooperate with, and with their consent, utilize other agencies. The MOU currently before the commission, fulfills Congress' important goal of better coordination between agencies tasked with eliminating, and preventing employment discrimination. The current draft before the commission is approved, the MOU will be improved in several important ways.

First, the Department of Justice Civil Rights Division is added as a party to the agreement. This means that all three federal agencies tasked with eliminating employment discrimination in our country, are part of the same agreement. This means better coordination between the agencies, more efficiency, and less duplication and redundancy.

Second, the new agreement will promote better accountability, by making high level officials at each agency or their designees, responsible for any disclosures of information under the agreement.

Third, the agreement strengthens procedures for coordination between the three agencies, both at the field and headquarters levels. This includes additions about holding discussions on enforcement priorities, finding efficiencies, and eliminating duplication, and coordinating on issues of religious liberty and conscious protections. The agencies will also consult amongst each other on novel or unique issues.

Fourth, the new agreement brings greater efficiencies to the investigations process. This includes allowing OFCCP the option of retaining an individual charge, without seeking the EEOC’s permission. Establishing procedures for joint or coordinated investigations between EEOC and OFCCP and providing procedures for the EEOC’s handling of charges also, alleging violations of Executive Order 11246.

Overall, these changes will allow all three agencies to better serve the public and enhance each agency's ability to fulfill their important missions. These improvements will also make it less likely, that employees and employers will need to deal with multiple agencies, to resolve the same claim, and reduce the chance that agencies will take conflicting positions on similar or overlapping allegations.

Working with our partners at DOL and DOJ, we have put together an improved agreement, that will benefit each agency involved and the American people we serve. Thank you for your time, and I look forward to your questions.

Dhillon: Thank you. I now offer the floor to Vice Chair Sonderling, to commence the first round of comments or questions.

Sonderling: Thank you, Chair Dhillon. Thank you, Mr. Maunz for your helpful presentation. It is a pleasure to join my new colleagues for what is our first commission meeting together. I look forward to collegially working together in the coming years. I have reviewed the proposed update of the Memorandum of Understanding, and I support it. Although, I am relatively new to the commission, I arrived with a keen appreciation for strong law enforcement and collaboration with fellow government agencies.

I support the proposed update, because it will enhance and result in better enforcement across the federal government, to benefit the American workforce. Most recently, I served at the Wage and Hour Division, at the US Department of Labor. During my tenure, the Wage and Hour Division achieved back-to-back years of record-breaking enforcement and compliance assistance. Similarly, in fiscal year 19, OFCCP set record recoveries. OFCCP just announced that it followed up with its second highest monetary settlement year in fiscal year 20 and had its best year for compliance assistance.

One primary reason the Department of Labor is so successful in its enforcement efforts, is due to its robust internal collaboration, and external collaboration with other federal partners. This whole government approach allows for efficient use of resources to benefit the American taxpayer. Like DOL, the EEOC is a civil law enforcement agency at its core. Our mission is to prevent and remedy unlawful employment discrimination, and advance equal opportunity for all in the workplace. However, we are not the only federal agency that administers and enforces civil rights laws. The EEOC, Department of Labor, and the Department of Justice, are the three primary federal agencies charged with enforcing Title VII of the Civil Rights Act of 1964, and Executive Order 11246.

These three agencies owe it to the American taxpayer to always collaborate and challenge each other on how to best carry out our duties to enforce the law, individually and collectively. The EEOC should not and cannot approach law enforcement alone. We know the significant problems associated with information stovepiping. Stovepipes resolve in entities not sharing information, or collaborating with other compatible entities, because of bureaucracies or turf disputes. They bring out inefficiencies, waste of limited resources and cause organizational blind spots. Stovepiping stymies businesses, criminal law enforcement, and military and intelligent efforts. The same rings true for civil law enforcement, there is a better way.

Through this MOU, we will enhance our civil law enforcement mission through close cooperation and collaboration, with our outstanding partners at the Department of Labor and Justice. Dedicated professionals at these three agencies possess expertise, experience, and insights, that can greatly benefit those at its fellow agencies. I urge my colleagues to join me in voting to support the MOU. I look forward to greater collaboration between the EEOC and the Departments of Labor and Justice. This collaboration will enhance our ability to enforce Civil Rights Laws and serve the American people. Thank you.

Dhillon: Thank you, Vice Chair Sonderling. I'll now turn the floor over to Commissioner Burrows.

Burrows: Good afternoon. This is the first meeting with the full five-member commission since 2015, when I first joined the agency. I am thrilled, we are back at full strength.

Dhillon: Commissioner Burrows? Commissioner Burrows? Operator, it appears we have… have we lost Commissioner Burrows?

Operator: Yes, I believe she dropped the call.

Dhillon: All right. Why don't we give it a moment for her to dial back in?

While we're waiting for Commissioner Burrows to rejoin the meeting, we continue to have a quorum. I will ask Commissioner Samuels. I’ll offer the floor to Commissioner Samuels at this point.

Samuels: Well, thank you so much, Chair Dhillon. I am so delighted to be here. It is such a privilege to be a part of this commission, and to help to advance the commission's critical mission. Thank you so much to Chair Dhillon, to my fellow commissioners, and to the staff of all of our agencies, for the substantial effort and commitment that they’ve put into this document. Thank you to the Chair, for scheduling this opportunity for us to discuss it.

I'd also like to thank our partners at the Department of Justice and the Office of Contract Compliance Programs. I look forward to working with staff at both agencies, to fulfill our shared mission of eradicating unlawful employment discrimination. Coordination and communication between our three agencies are critical to fulfilling our shared goals. I am committed to ensuring that we adopt, and continue to improve mechanisms, to ensure that we keep each other fully informed, share resources and information, and eliminate duplication, while we each pursue our responsibilities under the Civil Rights Laws and Executive Order 11246.

Recognizing these values, OFCCP and EEOC as you have heard, have had an MOU governing our collaborations since 1970. It was revised several times, most recently in 2011, when it was revised in an effort to revitalize inter-agency coordination. I note that in no time in the history of this MOU has the Department of Justice been a party to it. I agree that having all three agencies in regular and effective communication is a very important goal.

New to the commission, I was not privy to the negotiation and consideration of this new MOU, nor were Vice Chair Sonderling or Commissioner Lucas. I respect that there was significant analysis and discussion of this matter prior to our joining the commission, but I was not briefed on those discussions. Despite the fact that three [00:17:00 inaudible] of the commissioners were not here for the 30-day briefing period on this matter, we were given just five days to review and vote on this final version of this important inter-agency agreement. We were not offered the opportunity to provide input or propose clarifying language.

In the short time I had to review the document, I learned that EEOC program offices, which all recognize the importance and value of collaboration with our sister agencies. Nonetheless, have significant concerns, both practical and legal about the draft and review. These range from operational concerns about how EEOC will identify the thousands of employers, who are covered by Executive Order 11246. Two questions about the scope of delegation of the commission's authority, restrictions on local authority to exchange information in support of enforcement, and the possibility of litigation about the validity of the MOU, delaying or derailing the commission's ability to vindicate the rights of people subject to discrimination.

I also have some concerns about whether the revisions to the MOU that we consider today, adequately protect EEOC’s autonomy in decision-making. EEOC was created by Congress as an independent agency, separate and apart from cabinet agencies. This independence is undermined by an MOU, that potentially inserts the Departments of Justice and Labor into policy-making decisions, that by congressional design were placed in the hands of this bipartisan commission. Each agency is, of course, the expert in its own sphere. That is why it is critical to ensure, that each is able to exercise authority as to the interpretation and enforcement of the portions of the law that it enforces. No agency should have a veto power over the work of the others, and no communication should be allowed to unreasonably delay resolution of critical issues.

In addition to these broad concerns, there are also technical improvements to the draft that I believe could enhance its clarity and ensure its effective implementation. That is why I believe both Commissioner Burrows and I, will have amendments to offer, just to ensure that this agreement which serves critical inter-governmental goals, reflect the very best analysis and [00:19:33 wording] that all of us on the commission can provide. Thank you Chair, Dhillon. I yield back my time and will raise potential amendments in the second round. If Commissioner Burrows has not rejoined--

Burrows: I have rejoined. It’s just—

Samuels: Then we move on to…

Burrows: Yes, good. Hello. I was just able to get through. I apologize for the disruption. It seems I had trouble dialing in initially, and then this is the second or third time I've been dropped. I apologize for interrupting the meeting. If I would [00:20:15 crosstalk].

Dhillon: We're glad to have you back and why don't we turn the floor over to you for your first round?

Burrows: All right. Just as a point of parliamentary inquiry, if you could... I am going to just start over at the beginning, if that makes sense. That's what I think [00:20:35 crosstalk]

Dhillon: Yes. I think that makes sense. We'll start your round, your first round from the beginning.

Burrows: All right. My apologies. Good morning, good afternoon, [00:20:46 inaudible]. This is the very first meeting with a full five-member commission since 2015, when I first joined the agency. I am thrilled that we are back at full strength and welcome our new colleagues. This MOU’s stated purpose is to increase appropriate coordination between this agency, the Civil Rights Division, and the Office of Federal Contract Compliance Programs or OFCCP.

I strongly support that basic [00:21:11 inaudible]. Having served for over a decade at the Department of Justice in both Republican and Democratic administrations. I welcome the opportunity to deepen our ties with our colleagues there. Likewise, I have long worked closely with OFCCP, and respect and admire their important role in our national framework of civil rights enforcement. Combining the expertise, knowledge, and experience of these three agencies, could be a win for all sides and most importantly for the American people, but we must get it right.

The proposed MOU potentially affects the enforcement of all our statutes, especially Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, sex, color, and national origin. Title VII is more than simply an employment law. It's the very embodiment of our bipartisan national consensus, that protecting civil rights is vital to America's moral and economic success. Like EEOC itself, it was created in direct response to the historic 1963 March on Washington for Jobs and Freedom, and inspired by the many people who marched, spoke out, stood up, sat in, or even died, to help our nation realize its most cherished ideals of equality and justice for all. That task is still ongoing.

Dr. King predicted that the Civil Rights Acts vitality and power would depend as much on its implementation, as on the strength of its declaration. This MOU is part of that critical implementation. We must ensure it supports EEOC’s mission to prevent and remedy discrimination. That's why the details are important. To that end, we should amend this MOU in at least three areas. First, revise it to ensure closer coordination between OFCCP and EEOC in Title VII matters. The MOU purports to empower OFCCP, to independently conduct conciliation, issue rights of notices, notice of the right to sue, and take other actions Title VII, that’s solely in EEOC. This poses unneeded litigation risk. The best approach is for EEOC and OFCCP to work hand in glove, on any Title VII investigations on which OFCCP takes the lead.

In theory, our 2011 MOU with OFCCP raises similar issues, but in practice, OFCCPs use of these provisions has been extremely rare, and that's virtually untested in court. We would be well advised to address this issue now. Second paragraph nine should clarify that it provides for coordination about developing issues, but gives no agency a veto, with respect to another legal interpretation and strategy. I think that's the proper reading of this text already, but we should be absolutely clear on that point. The Congress established this agency as a bipartisan body to examine employment discrimination and we have considerable expertise. We should preserve our autonomy, while also enhancing our [00:24:21 inaudible] agency cooperation.

Third and finally, as with most of our other MOUs, there should be a withdrawal [00:24:29 inaudible] a notice provision for withdrawal. I previously provided suggestions for improving the document to each of your offices and regret, that the unusually brief five-day circulation period for the document, did not allow us to discuss those in detail before this meeting. I know that's a dramatic departure from our normal 30-day circulation to all commissioners, followed by five [00:24:53 inaudible]. I'm pleased we now have a chance to examine the proposal together. I move we adopt amendment one, to acknowledge each agency’s separate legal goal under the MOU.

Dhillon: Commissioner Burrows has proposed amendment number one, is there a second?

Samuels: Second. This is Commissioner Samuels.

Dhillon: Thank you. Commissioner Burrows, do you wish to speak in favor of your amendment?

Burrows: I would. Thank you, Madam Chair. Amendment one, which was circulated to the commission last week, would clarify that the MOU is not intended to alter the separate legal roles of the EEOCs, OFCCP, and the Civil Rights Division, with respect to enforcing anti-discrimination law. The MOU creates a new role for the Justice Department, to consider legal positions of the OFCCP and this commission. Amendment one would make clear, that this new role for the Justice Department Civil Rights Division, is not meant to affect our statutory autonomy or that of the OFCCP, but only to facilitate good reasonable coordination and consistency.

Amendment one would change a single sentence in the preamble. The amended sentence would read as follows. DOJ’s involvement will help to ensure that the agencies take a consistent approach where possible, to the complex legal and enforcement issues that arise under EEO laws. While recognizing that each agency has a separate statutory role, under the particular federal employment laws it enforces and therefore, maintains ultimate responsibility with respect to its legally mandated area of authority.

This statement should be entirely uncontroversial. It would not alter the substantive impact of the MOU. It's simply affirmed in the preamble, the document’s purpose and intent, and heads off any argument that the coordination with DOJ might undermine or conflict with this agency's statutory role. Amendment one will provide important clarity to the public and to our federal employees, who will implement the MOU, that this document in no way seeks to alter each agency's ultimate responsibility and legally mandated authority.

While other sections of the MOU address this point generally, this issue is of critical importance and should also be stated explicitly in the preamble. The three agencies that are parties to the MOU, have somewhat overlapping responsibilities in enforcing anti-discrimination laws. Given that overlap, the MOU must be clear that there are distinct lines of authority, which separates responsibility of each agency, and gives them autonomy over their respective enforcement areas.

As I stated earlier, I fully support inter-agency coordination and have long encouraged agreements, that make the government more efficient and better able to serve the public. I should add that to my knowledge, and certainly, throughout my tenure with this agency, the EEOC has always thought to coordinate with the Justice Department, as it develop new areas of law. This aspect of the MOU would formalize what is already our practice. I'm a firm believer that increased coordination with our sister agencies, can create important synergies, and further the public good. This proposed amendment would provide the right balance of equity between the agencies, by stating the DOJs value to the MOU, while also ensuring the EEOC and OFCCP, retain autonomy in their enforcement efforts.

Accordingly, I urge my colleagues to support amendment one, and I yield back the balance of my time.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have anything to say in response to the amendment?

Sonderling: No.

Dhillon: Commissioner Samuels, do you wish to offer any comments?

Samuels: I do. Thank you, Chair Dhillon. I support this amendment and I encourage my colleagues to do likewise. I look at this provision as simply a matter of clarity, adding concepts that are already clearly manifest in the MOU itself. For example, paragraph 13B of the document, already makes clear that nothing in the agreement limits, supersedes or otherwise affects, any of its parties’ normal operations, when decisions in carrying out its statutory executive order or regulatory duties.

I think this concept is already explicitly embraced in the document, but it comes in paragraph 13, multiple pages in. I think for the public and for those who come after us in implementing this MOU, having right upfront a clarity of purpose, and an explicit statement with respect to the agency's maintenance of their specific areas of authority under federal law, makes clear that agencies, each of our agencies, has a separate role to play in our shared purpose of enforcing the employment discrimination laws. In order to make that manifest at the very beginning of the document, I support this amendment. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to speak to the amendment?

Lucas: Sure, just briefly. For the reasons that Commissioner Samuels stated that the points in amendment one is already established elsewhere in the agreement, I do not think this amendment is necessary.

Dhillon: Thank you, Commissioner Lucas. We'll now go to a vote on amendment number one. I will do it by roll call, so as to aid with our transcribers efforts. Vice Chair Sonderling, how do you vote on amendment one?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas.

Lucas: No.

Dhillon: I vote no. Amendment number one fails. Commissioner Burrows, I turn the [00:31:42 crosstalk].

Burrows: Oh, sorry. I didn't mean to interrupt, I thought you were done. I offer amendment two.

Dhillon: Is there a second to Commissioner Burrows’ motion to amend number two?

Samuels: This is Commissioner Samuels, I second.

Dhillon: Thank you. Commissioner Burrows, do you wish to speak in favor of your proposed amendment number two?

Burrows: Yes. Amendment two would provide that request for information under the MOU should be limited to matters that are needed in connection with an investigation under the MOU, or the specific statutes of laws enforced by the agency making the request. I assume that this is what's intended. I think that should be an easy matter for us to accept. Let me tell you why I think it's needed.

Most of the information that EEOC might be asked to produce under the agreement, is protected by the confidentiality provisions of Section 706 B and 709 A. Those provisions impose a duty on the commission to keep confidential, any information received through our investigations, or that we collect officially otherwise, such as through our annual EEO-1 surveys. Both provisions also provide that the improper disclosure of confidential information by the commission is punishable as a crime. Accordingly, and in abundance of caution, I propose we include this language to make absolutely clear, that disclosures of information under this agreement are limited to those disclosures that have a proper law enforcement purpose.

That makes clear that EEOC is acting reasonably and entering into this information sharing agreement, and should prevent any confusion on that point, if there's ever any inadvertent or contested disclosure. I urge the commission to accept the amendments, and I yield back the balance of my time.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have any comments to offer on proposed amendment number two?

Sonderling: No.

Dhillon: Commissioner Samuels, do you have any comments to offer on proposed amendment number two?

Samuels: I do. Thank you, Chair Dhillon. Just briefly, I think that this amendment helps to increase the clarity of the language that says that information sharing should occur as appropriate. I think for those who come after us and who are implementing with MOU down the road, getting some greater clarity about what the drafters of this MOU meant by the word appropriate, can be very helpful.

I'd also note that adding this language mirrors, the approach of the 2011 MOU, which anticipates that OFCCP and EEOC will share information, related to the other agencies sphere of enforcement authority, but does not make those information sharing requirements unlimited. Thank you, Madam Chair.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you have anything to offer concerning proposed amendment number two.

Lucas: No comments from me. Thank you.

Dhillon: Thank you. We will move to a roll call vote on proposed amendment number two. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: No.

Dhillon: I vote no. Amendment number two fails. Commissioner Burrows?

Burrows: Thank you, Madam Chair. I would like to offer amendment three.

Dhillon: Is there a second?

Samuels: I second. This is Commissioner Samuels.

Dhillon: Thank you. Commissioner Burrows, do you wish to speak in favor of your proposed amendment number three?

Burrows: Yes. Thank you, Madam Chair. The purpose of amendment three is to identify the category of agency officials, to whom request for information should be directed under the MOU. It would also correct some language that I at least find confusing and inaccurate, regarding appropriate requesting officials. Specifically, the MOU states that only appropriate requesting officials may request information from another agency and it clearly defines who qualifies as an appropriate requesting official. However, a close reading of the document shows it is completely silent as to which employees may receive a request.

The term appropriate requesting officials is defined in paragraph two, as those individuals who may request information from another agency pursuant to the MOU. Paragraph two helpfully lists those individuals. The problem is that the term leaves completely unclear to whom requests can be directed and does not limit the category of employees at any agency to whom requests can be made in any way.

As it's currently drafted, an individual listed in paragraph two, could directly seek information under the MOU from anyone at the other agencies, including any career professional at the EEOC, DOJ, or DOL. Such a scenario would place career professionals in a difficult position of potentially responding to a request from a high-level official at another agency. If we do not believe that's... if rather, that's not what we intend, I think we have to clarify the language. I don't mind. My guess is that it is not in fact the intent.

In fact and based on my briefing with EEOCs Office of Legal Counsel about the MOU, I understand that the phrase appropriate requesting officials was actually intended to encompass both persons who can make requests, and those to whom requests may be made. But that's currently not what the document says. As such, for the sake of clarity and operational efficiency, the term appropriate requesting officials, should be changed to officials who make or receive requests. The entire document should also be conformed, to change each occurrence of the term appropriate requesting official, to officials who may make or receive requests.

This is a simple, straightforward fix to reflect the intent that the list of individuals in paragraph two, encompasses both who can make requests and to whom requests should be directed. I see it really in the nature of a drafting error. It also ensures that career professionals are not tasked with handling requests from high level agency officials. This amendment, therefore, merely fixes the language to accurately portray the meaning and intent of this paragraph. Of course, if a particular agency ever wanted to designate career employees to handle such requests, even after this change, they could still do so, by making a designation under paragraph two. But that would be a decision especially left to leadership and it should not be [00:39:15 default].

Accordingly, I urge my colleagues to support amendment three, and I yield back the balance of my time.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have any comments on proposed amendment number three?

Sonderling: No.

Dhillon: Commissioner Samuels, do you have any comments on proposed amendment number three?

Samuels: I do, thank you. I support this amendment, because I think as a grammatical matter and in terms of clarity of the document, I think it simply makes explicit what seems clearly to be its intent. I would say one more thing about paragraph two, however, which perhaps is a little different from what Commissioner Burrows just said. Which is that the 2011 MOU identified a number of career level officials, who would be authorized to make or receive requests.

I would strongly urge the Chair and the General Counsel and the Deputy General Counsel, as well as our partners in DOJ and OFCCP, to think about designating career officials, whether it is the district directors of the regional offices, the regional attorneys, the other EEOC commissioners, in order to ensure that disagreement can be operationalized at the levels of discussion, where it is likely to be most important for the agencies to be sharing information, and understanding what investigations are in process.

While I don't think that it requires an amendment to paragraph two, I would urge all of the parties to this MOU, to recognize the operational value of broad designations of authority.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to offer any comments on proposed amendment number three?

Lucas: Yes. [00:41:28 inaudible] again, agree that the intent is already clear. Once again, I believe that this particular amendment is unnecessary. Thank you.

Dhillon: Right. I don't have any comments. We will go to a roll call vote on proposed amendment number three. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: I vote, yes. I know that the language currently is absolutely not clear.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: I vote, yes.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: I vote, no.

Dhillon: I vote, no. The amendment number three fails. Commissioner Burrows?

Burrows: I'd like to offer amendment eight to clearly state that the parties will enforce the MOU in a manner consistent with all applicable federal laws.

Dhillon: Is there a second to proposed amendment number eight?

Samuels: This is Commissioner Samuels, I second.

Dhillon: Thank you. Commissioner Burrows, do you wish to speak in favor of proposed amendment number eight?

Burrows: Yes. Thank you. Amendment eight would [00:42:46 inaudible] paragraph six A-1 and six A-28 of the MOU. Specifically, it would amend the final sentence of this paragraph, to state to the respective committees that are created in the MOU, will discuss approaches to recognizing, accommodating, and enforcing civil rights consistent with Federal Law. Paragraph six establishes inter-agency committees to facilitate coordination between the parties of the MOU and outline specific topics regarding which of the committees... regarding which the committee should focus their coordination.

I would like to say that I think this is an excellent idea, it's a concept that was in the existing 2011 MOU. It's really the core of how we will knit together an effective implementation, a really powerful MOU, if this in time passes today. This is really where the rubber hits the road. I commend those who took a hard look at these paragraphs, and really thought through how we need to lash up, if you would.

Currently, six A-1 specifies that in coordinating implementation of the MOU, committees comprised of EEOC and OFCCP Field Staff, and the Civil Rights Divisions Employment Litigation and Disability Rights Sections, will consider how to implement consistent with certain specified federal laws and a [00:44:19 inaudible] guidance document, that EEOC had no input in creating.

Similarly, paragraphs six A-28, provides that headquarters committees will consider the same enumerated statutes of guidance. Singling out individual legal provisions in this way is entirely unnecessary and may inadvertently create the impression that we are elevating certain laws over others. Clearly doing so would be improper, because the federal government is required to faithfully execute all federal laws. Referencing religious liberty and conscience protections in its MOU is necessary as well, for several reasons.

First, the religious liberty and conscience protection defenses are the first defenses or the only defenses rather, referenced specifically in the MOU. Obviously, we do intend to consider every defense that might be available to an employer, as we look and decide how to implement the MOU and to enforce the law. Second, issues concerning those topics are... particularly, the first amendment, pieces of it are largely beyond the scope of Title VII. Finally, the citations of former attorney general [00:45:36 inaudible], highly controversial October 16th, 2017 Memorandum, is inappropriate appropriate in this context. That memorandum, of course, is extremely contentious within the civil rights community, and something that we did not have input into. There's really no way of knowing whether a future attorney general will resend it. It seems unnecessary to cite in this context.

The amendment provides a fix to affirm that the compliance committee created by the MOU, will appropriately consider all defenses available to employers when implementing the agreement, without elevating particularly defenses, or frankly, the highly questionable sessions guidance. Accordingly, I urge my colleagues to support amendment eight and I yield back the balance of my time.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have any comments to offer concerning proposed amendment number eight?

Sonderling: I’ve no comments.

Dhillon: Commissioner Samuels, do you wish to offer any comments concerning proposed amendment number eight?

Samuels: I do, thank you. I support amendment number eight. The expectation and in fact, the requirement of this MOU and of each agency's enforcement of the laws within its jurisdiction, is that that enforcement will be done consistent with all applicable laws, including, but not limited to those that protect religious liberty.

Making explicit reference to some, but not all of the federal laws, that will inform each agency's enforcement of the employment discrimination statutes, privileges, one set of laws over others, and signals that the drafters of the MOU anticipate that there will be conflicts, or that the parties will not otherwise proceed in accord with those laws. I believe that that skepticism is unwarranted and seems likely just to exacerbate the sense that some have, that religious liberty is generally intention with civil rights. That is not something I believe and it's not something that I would wish to communicate as a message of this MOU.

Moreover, citing to a specific attorney general memorandum, runs the risk that the MOU will become outdated, if that memorandum is modified in any point in the coming years. If the intent of the MOU as I think it is and should be, is that the party should enforce the employment discrimination laws, consistent with the dictates of evolving federal laws, it's illogical to include a reference to a specific guidance document, that may or may not reflect the standards of that evolving law down the road. I think removing that specific reference and making clear that it is the drafters expectation and indeed the legal obligation, to comply with all federal laws in their enforcement activities, better sets out the purpose of this MOU.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to offer any comments concerning proposed amendment number eight?

Lucas: Yes. I'm strongly against this amendment. I think it's important that the proposed memorandum specifically directs the three agencies, communicate, and collaborate unconscious and religious liberty protections under federal law, because these are critically important areas, and fundamental principles of our democratic Republic. As recognized from the Declaration of Independence, to the First Amendment of our constitution, as well as the Civil Rights Act of 1964. I was pleased and very supportive of these being specifically called out in the MOU. I would not support striking them here.

Dhillon: Thank you, Commissioner Lucas. We will now go to a roll call vote on proposed amendment number eight. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote, no.

Dhillon: I vote, no. Amendment number eight fails. Commissioner Burrows?

Burrows: Yes. As a matter of parliamentary inquiry, may I ask the time remaining in this round?

Dhillon: I'd like to move on to Commissioner Lucas. We will have another round of questioning.

Burrows: Okay. Is there someone recording the time for the respective rounds?

Dhillon: We are recording the time. But of course, once you offer an amendment and it's seconded, that the debate on the amendment is not counted against your time.

Burrows: Correct. I am just looking for the amount of time remaining in my initial five minutes.

Dhillon: By our calculation, it's about 50 seconds.

Burrows: Okay. Given that, I would, in fact... let's see. I do think that I would like to offer an additional amendment, given that we have a few more minutes and seconds here. I think that I would go next to introduce amendment 12.

Dhillon: Is there a second?

Samuels: I second, this is Commissioner Samuels.

Dhillon: Thank you, Commissioner Samuels. Commissioner Burrows, do you wish to speak in favor of your proposed amendment number 12?

Burrows: Yes, I would. As amendment 12 would improve paragraph seven of the proposed MOU, by enhancing the coordination between OFCCP and the commission. It would also strengthen the provision in the event that it's ever challenged in court. This amendment will strike the current text of paragraph seven and replace it with a new version, tracking the current language and retaining the provision that OFCCP shall act as EEOC’s agent, for the purposes of receiving complaints and charges.

Although there's relatively little case fall on point, courts have generally accepted that OFCCP can receive charges on behalf of the commission. It also seems that such receipt can be used to toll the time for filing a charge under Title VII, at least as to charges that OFCCP receives against federal contractors. This agency relationship has been the case for some time under our existing MOU. My conversations with colleagues here at the commission and at the Department of Labor, have confirmed for me, that we should retain this aspect of the MOU as well.

Amendment 12 would make three important changes to the text, however. First, it provides for OFCCP to promptly notify the commission, when it receives any dual file charge, so that the commission may in turn notify the parties of the receipt within 10 days, as provided in Title VII 42 U.S.C 2008-581. I believe this is OFCCP’s plan in any event. But, given that we hope the MOU will remain in place for a while into the future, that should be explicit in the document, so that employees at OFCCP, who may be less familiar with Title VII’s 10-day notice requirements, have clear instructions.

The second change is to provide for closer coordination between the commission and OFCCP, whenever OFCCP exercises other authorities beyond simply receiving charges, which Title VII vests solely in the commission. Unlike OFCCP's authority to receive charges on behalf of the commission, there seems to be no cases in which a court has considered, whether OFCCP can act on its own, to exercise other Title VII authorities, as EEOC agents. More importantly, however, both agencies will be more effective working together, and that's really the true main aim of this amendment.

Accordingly, for Title VII investigations where OFCCP takes the lead, amendment 12 would provide that OFCCP work closely with the commission, when issuing notices of right to sue, informing respondents when there is reasonable cause to believe a violation occurred, and conducting conciliation. The statutory notices that Title VII requires the commission to issue, will still be issued by the EEOC. This would significantly enhance cooperation and coordination between the two agencies, and truly allow for synergy between us in enforcing Title VII. For instance, OFCCP is far more likely to achieve a settlement through conciliation, if it can show the employer that EEOC, the entity that would have authority to take the matter to federal court, actively joins in the course of termination and is participating in conciliation.

Finally, the third major change amendment 12 would make to paragraph seven, is to delete section E. That section contemplates that OFCCP would investigate and process individual charges, with little to no involvement from the commission. In my view, that is inconsistent with the aim of this document, which is really to increase coordination. For the reasons already stated, I believe the better approach is for the agencies to work together on individual Title VII investigations, on which the OFCCP takes the lead. In addition, I think it's important that in those instances where a dual filed charge is received, that it's EEOC that can decide whether it wants to conduct the Title VII portion of the investigation, that would also be preserved here.

For all these reasons, I urge the commission to support amendment 12. I would be happy to answer any questions and reserve the balance of my time to respond to any concerns you may have.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have any comments to offer concerning proposed amendment number 12.

Sonderling: I do not.

Dhillon: Commissioner Samuels, do you wish to offer any comments concerning proposed amendment number 12?

Samuels: I do. Thank you, Chair Dhillon. I support the basic principle that it is the agency with the greatest expertise in handling the type of complaint or review an issue, that should typically take the lead in addressing it. Also, that the commission should coordinate with OFCCP in those cases where OFCCP takes the lead on Title VII claims, and on those in which the commission is investigating complaints under Executive Order 11246. It's my understanding that that is what this amendment is designed to do.

In some cases, it's the interpretation of relevant legal standards, where the expertise is most important. In some, it's the nature of the remedies that individual agencies can seek under the statutory authorities they enforce. In some, it's the relative competencies of the agencies. OFCCP has vast and valuable experience in conducting audits. EEOC has greater resources and experience in conducting individual investigations. In general, I think that the government should practice a no wrong-door philosophy when dealing with the public. People who believe that they've been subject to discrimination, should be able to get the best possible government response, whether they go first to OFCCP or to EEOC.

Under the MOU, as it currently reads, people with identical complaints would have different agencies process their cases, depending on where they filed them. In recognition of that fact, the amendment would create the presumption that EEOC would handle the Title VII aspect of dual filed complaints, while OFCCP would process the portions of the complaints that arise under Executive Order 11246. Both agencies would of course have the flexibility to assign responsibility for particular complaints to its sister agency. Of course, I agree with Commissioner Burrows, that joint investigations and close coordination are the gold standard for serving the public, including at the field headquarters and commission level. I know that we all stand ready to assist OFCCP and DOJ, in working together on dual filed complaints, to ensure the most robust and efficient use of all of the tools at each of our disposals.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to offer any comments concerning proposed amendment number 12?

Lucas: No, I do not.

Dhillon: Thank you. We will move to a roll call vote on proposed amendment number 12. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Yes.

Dhillon: Commissioner Samuels.

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: No.    

Dhillon: I vote no. Proposed amendment number 12 fails. Commissioner Burrows, by my calculation you have about 20 seconds left. Would you like to add this to the second round, or would you like to move forward for 20 seconds?

Burrows: I would yield back. Thank you, I appreciate it.

Dhillon: Thank you, Commissioner Burrows. Commissioner Lucas.

Lucas: Thank you, Madam Chair. I'm excited to be participating in my first commission meeting, it's a privilege to be here. A belated good afternoon at this point now, to my fellow members of the commission and to our hardworking staff. Welcome, to all the members of the public virtually attending this commission meeting. I think it's already been well discussed at this point, the details of this memorandum, which builds upon and strengthens the agreement already in place between the EEOC and the OFCCP. As well as the clearly important stakeholder in the Enforcement of Equal Employment Opportunity Laws, the Civil Rights Division of the Department of Justice.

Given the late point in which I am making my statement in the interest of time, I'm not going to try to belabor what the various stakeholders have already recounted. Justified is to say that after examining the provisions of this memorandum and the historical agreements between the EEOC and the OFCCP, I have elected to support the proposed memorandum for several reasons.

To begin, in my opinion it incorporates into the agreement an obvious and previously excluded stakeholder in the field, the Department of Justice. In doing so, sets forth an appropriate of parameters for the collaboration and coordination between the three agencies, where the important work performed by these agencies intersects. In addition, I think the agreement clarify as the treatment of certain charges, where the work of the commission overlaps with the OFCCP. It does so by building on historical precedence of the prior MOUs, involving work allegation between the agencies. I'm heartened that in doing so, it is building on agreements reached during this prior presidential administration. I think that this actually should be a bipartisan tactic here, to build on this work allocation between the OFCCP.

In doing these things as others have stated, I think the MOU goes a long way to ensuring and enhancing the efficient coordination of cooperation between the agencies in this important space. Something I think that everyone on the commission agrees is a necessary and important [01:02:23 inaudible] to achieve. Ultimately, I think the public interest in good governance and efficiency, will be well served by the provisions in the agreements to these ends that I've discussed. With that, I'll yield back the remainder of my time.

Dhillon: Thank you, Commissioner Lucas. I'd like to offer a few comments concerning the MOU, which I stated earlier [01:02:46 inaudible] authority to make independent legal decisions or transfers that authority to the Department of Justice. The draft MOU only foresees consultation with the Department of Justice, in cases that raise issues of law that are novel, unsettled, or may have significant precedential value for subsequent cases. It does not confer on the Department of Justice any singular right to control the EEOC’s decision-making, in the same way that the provision which foresees DOJ consultation with EEOC and OFCCP before it brings a lawsuit in certain instances, confer such a right on the EEOC or OFCCP.

I would also note that the current MOU, which was entered into in 2011 and the versions that proceeded it, already authorized the OFCCP to retain, investigate, process, and resolve allegations of discrimination of a systemic or class nature under Title VII. This is not unchartered territory for these two agencies. The proposed MOU simply allows for the possibility that OFCCP will retain individual complaints, already filed with the OFCCP by a federal contractor’s employee. Then, only when they implicate both Executive Order 11246, as well as Title VII. Nothing in the MOU requires the EEOC to transfer to OFCCP complaints of discrimination filed, which implicate a federal contractor. The default rule in such cases, is that the charge remains with the EEOC.

Finally, and very importantly from my perspective, the MOU provides that the agencies will confer and coordinate concerning religious liberty and conscious protection issues. I think that that is appropriate and reflects the vital importance of those protections.

I do not have any questions for the legal counsel. At this point, we will move on to a second round of comments and questions. Vice Chair Sonderling, is there anything that you would like to say or ask during the second round?

Sonderling: Nothing other than what I've already stated in my opening statement.

Dhillon: Thank you, Vice Chair Sonderling. Commissioner Burrows, I'd turn the floor over to you.

Burrows: Thank you, Madam Chair. I wish to associate myself with your comments, which I agree with, respecting the autonomy of the agency, of our agency rather, under this important document. I will. Beyond that, I'd like to say that I would like to call up now 13-A, which is the amendments, that was... one of the amendments circulated earlier.

Dhillon: Is there a second to amendment 13-A?

Samuels: Yes. This is Commissioner Samuels, I second.

Dhillon: Commissioner Burrows, do you wish to speak in favor of your proposed amendment 13-A?

Burrows: Yes. Amendment 13-A would set forth the statutory basis, on which the commission relies to support its authority to enter into this inter-agency agreement. It's the same statutory authority mentioned by our legal counsel, Andrew Maunz earlier in this meeting. The amendment would specify that under this particular statute, EEOC is permitted to designate OFCCP to act as its agent, for purposes of receiving, processing, investigating, and resolving Title VII complaints.

In the event that the delegation of authority to OFCCP under this agreement is ever challenged in litigation, the citation of authority itself would be helpful. It will also provide clarity to career employees at both agencies, regarding the firm legal footing for this agreement. Accordingly, I urge inclusion of 42 USC 2008-14 and 42 USC 2008-4G1, into paragraph seven, to specify the legal authority for the proposal. Alternatively, I would be very open to include these statutory provisions elsewhere in the MOU, if that's the consensus, or if the proposed placement in paragraph seven is of any concern.

42 USC 2008-14 states that the EEOC shall have the responsibility for developing and implementing agreements, policies and practices designed to maximize effort, promote efficiency, and eliminate duplication and inconsistencies, among the various departments, agencies, and branches of the federal government, responsible for the implementation and enforcement of equal employment opportunity, legislation, orders, and policies. 42 U.S.C 2008-4G1 states that the commission shall have power to cooperate with, and with their consent utilize regional, state, local and other agencies, both public and private, and individuals. These two statutory provisions allow EEOC, to enter into cooperative agreements, and confirm that the agency has the power to use other agencies like OFCCP.

I understand OFCCP also views these particular sections as authority for the proposed delegation and as I mentioned before, our Office of Legal Counsel, does as well. This amendment would provide a simple good government fix, to properly site legal authority in the document. Accordingly, I urge my colleagues to support amendment 13-A and yield back the balance of my time.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have any comments to offer concerning proposed amendment 13-A?

Sonderling: No.

Dhillon: Commissioner Samuels, do you have any comments to offer concerning proposed amendment 13-A?

Samuels: I do not. I support this amendment.

Dhillon: Thank you. Commissioner Lucas, do you have any comments to offer concerning proposed amendment 13-A?

Lucas: No comments from me.

Dhillon: Thank you, Commissioner Lucas. We'll move to a roll call vote on proposed amendment 13-A. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: I vote, yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote, no.

Dhillon: I vote, no. Amendment 13-A failed. Commissioner Burrows?

Burrows: Thank you. I offer amendment 15, to affirm EEOC’s authority to interpret statutes it enforces.

Dhillon: I'm sorry, just to clarify Commissioner Burrows, you're speaking to amend proposed amendment 15?

Burrows: Yes, 15. Thank you.

Dhillon: Thank you. Is there a second?

Samuels: Second. This is Commissioner Samuels.

Dhillon: Thank you. Commissioner Burrows, do you wish to speak in favor of proposed amendment 15?

Burrows: Yes. Thank you very much, Madam Chair. Amendment 15 would make changes to paragraph nine, to clarify what I believe is already the intent of that paragraph. The new paragraph nine would state as follows. Novel or precedential issues as practicable, OFCCP and EEOC may consult with the appropriate requesting official in DOJ, CRD before OFCCP issues a notice of violation or EEOC makes a reasonable cause of determination, that raises issues of law that are novel, unsettled, or have significant precedential value for subsequent cases in which DOJ may be involved.

However, EEOC is responsible for making an independent determination, regarding the existence of reasonable cause. This amendment is needed to avoid the implication that the current text of paragraph nine somehow requires EEOC, to consult with DOJ or obtain its permission before making reasonable cause determinations, on charges that may raise issues of law that are novel, unsettled, or may have significant precedential value for later cases. Such an implication would be improper for several reasons.

Section 706, subtitle seven, authorizes only EEOC to investigate charges alleging violations of the act and to make reasonable cause determinations. Title VII neither authorizes DOJ to make reasonable cause determinations on EEOC charges, nor even give DOJ oversight over EEOC’s reasonable cause determination decisions. Indeed, the statute gives the Civil Rights Division, no role whatsoever in that process, even with respect to charges that can only be litigated by DOJ.

The provision that EEOC consult with other agencies before making reasonable cause decisions in certain cases, is therefore appropriate only if doing so, is at EEOC’s discretion and would not delay or otherwise interfere with EEOC's work. It goes without saying that it would be impossible for the relatively small number of employment attorneys in the Civil Rights Division to consult with our 53 field offices, regarding the large volume of charges, potentially numbering in the thousands that might raise some potentially novel issues brought to litigation.

It would also be impossible or at the very least highly impractical, for EEOC’s non-attorney investigators to be charged with identifying such charges. This amendment reflects that basic reality. Further, the language is particularly important, given that the text the paragraph [01:12:25 inaudible], is so broad and relatively vague. I think we have already found agreement here on a bipartisan basis, that there's no intent that there would be some sort of full stop. But because most of the people who will be using this agreement and implementing it, are not participating in this meeting today, and many of them, including non-attorneys, I think it's important that the document speak clearly to these issues.

Amendment 15 would remedy the issues I’ve identified. It clarifies that after consultation with DOJ, EEOC is responsible for making an independent determination, regarding the existence of reasonable cause. As written, the current paragraph is unclear about what will happen if DOJ and EEOC are at cause about legal issues involved in a charge. Recently, EEOC and DOJ have held, its rare, but different views regarding Title VII coverage for instance, of claims alleging discrimination based on sexual orientation or gender identity. Position of the EEOC, of course, has been affirmed by the Supreme Court and in the [01:13:43 inaudible] case recently.

But if this language had been effective at the time, it could have been misread to delay or prevent EEOC successful litigation, that paved the way for that win in the Supreme Court, protecting LGBTQ persons from job discrimination. For all these reasons, I urge my colleagues to support amendment 15.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you wish to offer any comments concerning proposed amendment 15?

Sonderling: I’ve no additional comments.

Dhillon: Commissioner Samuels, do you wish to offer any comments concerning proposed amendment 15?

Samuels: I do. First, I would like to thank you Chair Dhillon, for clarifying for the record, that paragraph nine does not create anything beyond a consultation expectation, that each agency retains its statutory authority and independence in making determinations of law and policy. The DOJ does not have a veto power over EEOC determinations.

I support this amendment, because I think that it is helpful to make clear that consultation with DOJ is authorized, but not mandatory and would enable the three agencies to evaluate as the MOU is implemented, the kinds of determinations in which consultation with DOJ is appropriate. The wording allows flexibility to set parameters for what is at this point vague language, that I worry runs the risk of creating confusion, and imposing bureaucratic demands in circumstances where consultation will prove to be unnecessary or will cause delay. For these reasons I vote in favor of this amendment. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to offer any comments concerning proposed amendment 15?

Lucas: Yes. I think that this is unnecessary, because the word consult by its very definition is clear that it means to consult, not contain veto. The definition of consult is to seek information or advice from. That's clearly and patently not a veto, so I don't think it's necessary to further clarify language that by its very terms is already clear.

Dhillon: Thank you, Commissioner Lucas. We'll now move to a roll call vote on proposed amendment 15. Vice Chair Sonderling, how do you vote?

Sonderling: I vote, no.

Dhillon: Commissioner Burrows?

Burrows: Yes.

Dhillon: Commissioner Samuels?

Samuels: I vote, yes.

Dhillon: Commissioner Lucas?

Lucas: I vote, no.

Dhillon: I vote, no. Amendment number 15 fails. Commissioner Burrows?

Burrows: Thank you. I'm glad to see that we have broad consensus, as to the interpretation of paragraph nine. I offer amendment 17.

Dhillon: Is there a second?

Samuels: Second. This is Commissioner Samuels.

Dhillon: Thank you. Commissioner Burrows, do you wish to speak in favor proposed amendment 17?

Burrows: Yes. Thank you, Madam Chair. On September 22nd, 2020, the President signed Executive Order 13950, on combating race and sex stereotyping, otherwise known as the Executive Order on Diversity Training, which prohibits the use of federal funds for certain kinds of diversity training. The order further prohibits federal contractors from including such views in workplace diversity and inclusion trainings.

The Executive Order has created some confusion, I think, and drawn widespread attention and indeed opposition from stakeholders, ranging from Fortune 500 companies and the US Chamber of Commerce, to civil rights groups like the NAACP LDF. The current language in the MOU doesn't address one way or the other, how complaints alleging Title VII violations related to the Executive Order, would be handled by EEOC and DOL. It's my understanding that DOL intends to retain them. I think that that would be appropriate.

Amendment 17 clarifies that the delegation to OFCCP to investigate or take other actions under Title VII, does not extend to enforcing the Executive Order on Diversity Training. This amendment would add a new paragraph seven S, providing that nothing in the MOU shall be read to permit OFCCP to investigate alleged violations of Executive Order 13950, under title seven. Again, my understanding is that [01:18:50 inaudible] with how DOL intends to proceed in any event. I note that the Executive Order itself contemplates that EEOC and the justice department, would consider any application of Title VII to the Executive Order. This amendment is likewise consistent with the text of Executive Order 139450.

Further, there's already sufficient investigative authority for OFCCP, under the Executive Order itself and their own existing procedures. I urge my colleagues to support amendment 17, and I would reserve the balance of my time for rebuttal.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have any comments to offer concerning proposed amendment number 17.

Sonderling: I do not.

Dhillon: Commissioner Samuels?

Samuels: Yes. Thank you, Chair Dhillon. I have serious concerns about Executive Order 13950. I worry that it sends precisely the wrong message to the employers and federal contractors, who are trying to create truly equitable [01:20:09 inaudible] training and activities designed to enable employers and others, to recognize implicit bias, to address structural inequities and to create inclusive workplaces is critical, both to ensure protection of the rights of vulnerable individuals and to enable employers to proactively avoid violations of the employment discrimination laws.

I think that the Executive Order 13950 is in danger of being over read, and I think it is important to note that it does say that all government agencies, federal contractors, and federal grant recipients, should of course, continue to foster environments, devoid of hostility grounded in race, sex, and other federal and protected characteristics. Training employers to create an inclusive workplace is appropriate and beneficial. The federal government is and must always be committed to the fair and equal treatment for all individuals before the law. I think those are important statements of recognition, in what is otherwise a very troubling Executive Order.

But that said, today's meeting is not intended to debate the meaning or scope of Executive Order 13950. For our purposes, it's sufficient to note that the new Executive Order would raise novel and significant issues, if it were alleged that violations of it somehow created violations of Title VII. This amendment is thus entirely appropriate, to ensure that any such claims are in the first instance handled by the EEOC, as the agency with the statutory authority and expertise to interpret Title VII’s requirements. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you have any comments to offer concerning proposed amendment 17?

Lucas: I do not.

Dhillon: Thank you. We'll move to a roll call vote concerning proposed amendment number 17. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote, no.

Dhillon: I vote, no. Proposed amendment number 17 fail. Commissioner Burrows, do you have anything further to add during the second round?

Burrows: Yes. I believe strongly in the benefit of inter-agency cooperation, but unfortunately, without the changes that I propose to paragraph seven and nine, I regretfully will not be able to support the MOU. I appreciate that it offers the chance for much more robust and aggressive civil rights enforcement. I hope that we will continue working toward that goal, whether or not it passes today. I do think that if we had taken more time to discuss this in detail before the initial vote, it could have passed unanimously.

Before we conclude, I must note again the highly irregular process by which we considered this matter. Typically, the MOU would have circulated to the full commission for 30 days, during which time we could have discussed its implementation, and perhaps reached bipartisan consensus. That's how the commission has typically proceeded, and the return to that approach would allow a formal orderly process, that could only improve our decision-making.

While my office had the full circulation period to consider the MOU, most of the commissioners participating in this meeting had not yet been sworn in at that time, making it impossible for me to discuss it with them. Then, a rush process rarely promotes good decision-making, I certainly hope my colleagues in the majority will consider carefully, what precedent they wish to set for the future.

Beyond that, Madam chair, I thank you for holding this important meeting and for the work that you and your staff put into this issue. I'd also like to thank the Office of Legal Council for its work on the MOU, and everyone who helped to prepare for this meeting. In addition, I'm very grateful to Director Leen at the Office of Federal Contract Compliance Program, the Office of the Deputy Secretary of Labor, and our other [01:24:48 inaudible] partners at the Department of Labor, who have been extremely helpful to my office, in understanding how we might best implement the MOU. That goes as well for the many, many career staff in all the agencies, who reviewed this proposal and made thoughtful suggestions along the way.

Finally, I'd like to thank everyone on my staff, who helped review the MOU and prepare for this meeting. Particularly, Amber Fox, who in the true spirit of inter-agency collaboration, will soon be leaving my office to join the Civil Rights Division. I know that her time with EEOC will serve her well in that new role. I certainly am grateful for all her work during her time here. With that, I thank you and I yield back.

Dhillon: Thank you, Commissioner Burrows. Commissioner Samuels, do you wish to offer any comments during the second round?

Samuels: I do. Thank you, Chair Dhillon. I hope that this will be very quick. Unanimously supported amendments, because each of them is designed simply to clarify the words of the MOU, without changing any of the substantive understandings of it, to make sure that all of the parties and the public understand what the MOU intends. I'd like to offer amendment six first, to ensure appropriate disclosures of information, and to avoid inadvertent violations of Title VII’s confidentiality provisions.

Dhillon: Is there a second to proposed amendment number six?

Burrows: I second.

Dhillon: Thank you. Commissioner Samuels, do you wish to offer any comments in support of proposed amendment number six?

Samuels: I do. I appreciate the opportunity to offer these amendments. This is a technical amendment that is really intended, simply to avoid inadvertent disclosures that might violate Title VII's confidentiality provisions and create a potential for criminal penalties. The amendment would make clear, that an agency asked to disclose information, will consult not just with the agency that initially compiled or collected the information, as is set forth in the current draft of the MOU, but also with the agency with statutory authority over the charge were complainant. Then the amendment would make a dramatical edit to the last sentence, to make clear that it applies to both of those agencies, if they are different.

I think in many cases, the agency that initially compiled the information, will be the agency that has statutory authority over the charge. Of course, section five of the draft MOU make clear that all three agencies are bound by Title VII’s confidentiality provisions. But under this agreement, OFCCP will have the authority to investigate certain Title VII charges and thus, maybe the agency that initially compiles information relevant to the charge. EEOC is of course the agency with statutory authority over Title VII charges.

Because Section 706 and 709 of Title VII impose criminal penalties, including fines and possible imprisonment on any person who makes public information in violation of the confidentiality provisions, I think it's worth taking additional steps, to ensure that both OFCCP and DOJ consult with EEOC, when they are deciding whether to disclose information that was developed by one of them in the course of a Title VII investigation. I also think that that will help to ensure that our interpretations of Title VII’s confidentiality requirements are uniform across agencies and give us the opportunity to consult when real concrete fact patterns arise. Thank you.

Dhillon: Thank you, Commissioner Samuels. Vice Chair Sonderling, do you wish to offer any comments concerning proposed amendment number six?

Sonderling: I do not.

Dhillon: Commissioner Burrows, do you wish to offer any comments concerning proposed amendment number six?

Burrows: Yes. Thank you, Madam Chair. I agree with Commissioner Samuels that amendment six is important to include. The current draft language would permit DOL to release any Title VII charge information, compiled or collected by OCCP or the Civil Rights Division to third parties outside the federal government, without first consulting with EEOC. This is problematic because Section 709, as Commissioner Samuels noted, specifically prohibits any officer or employee at the commission from publicly disclosing any information obtained during administrative processes, or prior to any enforcement proceeding.

I note in 706 has similar language. I note that while there's a criminal prohibition, the text of the statute only applies that prohibition to the commission, not to the sisters’ agencies, and certainly not to DOL. The MOU delegates investigation of certain Title VII charges to DOL and designate DOL as EEOC’s agent. This arrangement creates the possibility that EEOC might be held responsible for an inadvertent disclosure, even if DOL was the agency that initially collected the information. Under the current version of the MOU, that disclosure could happen without any consultation to EEOC, because EEOC did not itself collect the information that's being disclosed.

However, because it's Title VII information, and because Title VII itself indicates that any disclosure could potentially lead back, in the context of a criminal allegation to EEOC, it's important that we share in the decision-making about whether specific information may be disclosed to third parties who are outside the government. I think that it's also helpful to have this amendment, so that OFCCP and EEOC can interpret and apply the confidentialities consistently. This will assist employers and employees alike, by creating a clear understanding with the public, of what information might be released with respect to a Title VII investigation.

While EEOC has a great deal of experience in thinking through the implications of those confidentiality provisions, OFCCP has less experience with that. I think it would be useful for them to consult with us, when they're making those decisions, given either [01:32:19 inaudible], but also that these decisions can sometimes be complicated. This amendment would provide for that consistency. The proposed amendment clarifies that EEOC, which has formal statutory authority over Title VII charge information, would simply be consulted before another agency discloses information that was compiled in a Title VII investigation, and allow us to share in the decision-making, regarding that disclosure. I urge my colleagues to support amendment six, and I yield back the balance of my time.

Dhillon: Thank you, Commissioner Burrows. Commissioner Lucas, do you wish to offer any comments concerning the proposed amendment number six?

Lucas: No comments from me.

Dhillon: We'll move to a roll call vote on proposed amendment number six. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Aye.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote, no.

Dhillon: I vote no, as well. Amendment six failed. Commissioner Samuels, you have the floor.

Samuels: Thank you so much. I’d like to offer amendment 10 to recognize this, that OFCCP is the agency best situated to identify federal contractors.

Dhillon: Is there a second?

Burrows: I second.

Dhillon: Commissioner Samuels, would you like to speak in favor of proposed amendment number 10?

Samuels: Yes. Thank you. This amendment amends paragraph six of the MOU, which directs the agencies to develop procedures, to promote joint initiatives, to increase efficiency, and to minimize duplication. All of which I strongly support. The amendment is intended to memorialize the expectation that OFCCP will provide assistance to EEOC, in identifying and responding to Title VII charges, who are also covered under the Executive Order 11246.

I have no doubt whatsoever, that our colleagues at OFCCP will be helpful as they will be, in identifying who is covered under the Executive Order. But I know that we are all aware, including the colleagues at OFCCP, that the process of tracking the university entities to which the Executive Order applies, can be unwieldy and difficult. In fact, the OFCCP website has FAQ's on jurisdiction that lists 14 questions, and multiple regulations and court opinions that are relevant to the determination. It's an area in which frankly, the EEOC does not have OFCCP’s expertise.

As a result, I propose this amendment to avoid any implication, which I think is not intended to be there, but it's to make it clear, that the [01:35:41 inaudible] is on the EEOC to identify respondents who are subject to Executive Order 11246 and to, again, focus the party's discussions on the ways that OFCCP can lend its expertise, as the EEOC works to develop a mechanism to identify the relevant parties. The amendment reflects the reality that OFCCP is in the best position, to identify contractors who are subject to the Executive Order.

Dhillon: Thank you, Commissioner Samuels. Vice Chair Sonderling, do you wish to offer any comments concerning proposed amendment 10?

Sonderling: No.

Dhillon: Commissioner Burrows, do you wish to offer any comments concerning proposed amendment 10?

Burrows: Thank you, Madam Chair. I join Commissioner Samuels in support of amendment 10. The amendment would promote better efficiencies between the EEOC and OFCCP, because the two agencies would work together to identify federal contractors, subject to Executive Order 11246, and develop a mechanism for EEOC to properly make such identifications. Without the help of this amendment, the commission would be left to its own devices in identifying federal contractors and would need to train investigators and other career professionals on how to make such identifications and develop a mechanism within EEOC’s charge system to track such identifications.

Certainly, it is the case that OFCCP is far better positioned to identify federal contractors for the EEOC, and provide other means of assistance, to ensure that we can accurately identify and track charges that involve federal contractors. Without that assistance, there's a potential for more errors in identifying federal contractors, which could result in delays and missed opportunities for both OFCCP and EEOC. I agree that that language [01:37:52 inaudible] no onus on EEOC to do that. But if we could do it well with the help of OFCCP, that looks like a win-win to me under this agreement. I think we should, to the extent that OFCCP is able to do it, provide that they seek to do that, and then it will be more likely that we will be able to successfully implement this MOU.

I further note that the amendment itself is a fairly minor change of language, to reflect a very practical solution to the significant challenge that's posed by requiring EEOC, rather than OFCCP, to identify in the first instance federal contractors. Accordingly, I urge my colleagues to support amendment 10.

Dhillon: Thank you, Commissioner Burrows. Commissioner Lucas, do you have any comments concerning proposed amendment 10?

Lucas: I do not.

Dhillon: Thank you. We will move to a roll call vote on proposed amendment 10. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote, no.

Dhillon: I vote no. The proposed amendment 10 fails. Commissioner Samuels, I'll turn the floor over to you.

Samuels: Thank you. I have one more amendment to offer and that is amendment number 16, to allow each party to the MOU to withdraw from the agreement upon written notice to the other party.

Dhillon: Is there a second?

Burrows: I second.

Dhillon: Commissioner Samuels, do you wish to speak in favor of your proposed amendment 16?

Samuels: Thank you. I'll first note that many of the MOUs into which the EEOC has entered, provide explicitly that the parties can withdraw after written notice to the other party. I'll cite, for example, the 2014 MOU between the EEOC and the United States Office of Special Counsel, the 2018 MOU between EEOC and DOJ on Title VII Enforcement, the 2015 MOU between EEOC and DOJ, with regard to enforcement under the Americans with Disabilities Act, and many others beside.

I think it's appropriate to allow each of the parties to determine whether continuing participation in an MOU, serves the agency's interests over time. But without an explicit provision that sets a timeframe, and thus creates an orderly process by which the parties understand, I'll withdraw and will work, decisions by any party on whether to withdraw from the agreement or likely to spark confusion and create ad hoc arrangements that are not in the party's interests.

I think it's particularly important to include a withdrawal provision here, because paragraph 14 of the MOU states that it can be modified only with the mutual consent of the parties. In the absence of a separate withdrawal provision, therefore, the agreement could be misread to mean that any party could prevent another from withdrawing, simply by withholding its consent. In the same way that we would not want to prevent DOJ or OFCCP, from making the independent determination that the MOU no longer serves their interests, we in the EEOC would want to have that same flexibility. I don't believe that the MOU is [01:42:01 inaudible] flexibility. The amendment would simply make that [01:42:06 inaudible] explicit, while setting clear expectations about the process that will be followed.

Now, I'll note that I do not in any way anticipate that any of the parties will want to withdraw from this agreement. I think we all agree that it serves critical good government purposes, in ensuring the most effective enforcement of the employment discrimination laws, but it is really just intended to include what is a boiler plate provision in many prior EEOC MOUs. Indeed, in many MOUs between other agencies as well, to preserve the autonomy and authority of the commission, to make its own decisions about how best to conduct EEOC operations.

Dhillon: Thank you, Commissioner Samuels. Vice Chair Sonderling, do you wish to offer any comments concerning proposed amendment 16?

Sonderling: I have no additional comments.

Dhillon: Commissioner Burrows?

Burrows: Thank you. I agree with Commissioner Samuels, that this amendment should be adopted. I have a slightly different take on it. I think that the MOU currently lacks a provision requiring an agency to provide timely notice to other parties, to the agreement before withdrawing from the MOU. Of course, that's standard in almost all such agreements. I don't think that that's susceptible really, of the interpretation that somehow it would be impossible to get out of it. But as a practical matter, I think that each agency, of course, has the right to do... to withdraw its wishes. The trickiness is that... for planning purposes, we should have a notice provision before that happens.

Any previous agency leadership was not able to bind his or her successes regarding a policy matter of this nature, but it would be awfully helpful to have a withdrawal provision, so that there is a specified process and timeframe for such a withdrawal. That way the other parties to the MOU, could consider any concerns they have, about what prompted the withdrawal, perhaps it leads to a revisiting and the conversation about how to better improve the MOU, rather than to terminate it.

It would also allow the remaining parties to the MOU, a reasonable time to prepare for the withdrawal, and to inform their employees of the change. As such the MOU should be amended to add a provision, as this amendment does, that allows any parties seeking to withdraw from the MOU, to provide at least 30-days notice to the other party. That's a far more reasonable and orderly process, than a sudden withdrawal that is effective immediately.

As Commissioner Samuels noted, those provisions are quite common. For instance, this past June, the Labor Department's Wage and Hour Division per our MOU with that agency, provided 90-days notice of the decision to withdraw from the particular MOU, that is now effective... that is no longer effective, rather.

This amendment provides a notice period of only 30 days rather the 90, but it's otherwise essentially the same. It's that concept that I would seek to have us adopt here. Amendment 16 is simple, it's straight forward, and it should be non-controversial. I believe it's in interest of all parties to the agreement. It's a good government practice. I’m hopeful that we could adopt this unanimously. I do have a point of parliamentary inquiry for the Office of Legal Counsel, before my time runs out here. Specifically, I'm wondering if I'm correct in reading this as [01:46:24 inaudible] in place our separate MOU with the Civil Rights Division.

Andrew: I'm sorry, Commissioner Burrows, I didn't hear the last part of that. What was that exact question?

Burrows: Sorry, I apologize. The question for the legal counsel is whether this MOU would be... if it passes, would continue in addition to, or would it replace our previous MOU with the Civil Rights Division of the Department of Justice?

Andrew: It would not replace it, I believe. [01:47:02 inaudible] work in conjunction. I think there's language actually in the agreement that expresses that.

Burrows: That was my understanding, I just wanted to confirm it. Thank you.

Dhillon: Thank you, Commissioner Burrows.

Burrows: I would urge approval of the amendment.

Dhillon: Thank you.

Burrows: I yield back my time.

Dhillon: Commissioner Lucas, do you have any comments concerning amendment 16?

Lucas: No comments.

Dhillon: Thank you. I will offer a brief comment concerning proposed amendment 16. Mainly, that the current MOU that is in effect between the EEOC and the OFCCP, does not have a specific provision allowing either party to withdraw. I think that that's probably because this agreement is of such longstanding and has been in place in one form or another for about half a century. With that, we'll move to a roll call vote on proposed amendment 16. Vice Chair Sonderling, how do you vote?

Sonderling: I vote, no. Thank you for your comment, that clarified it for me.

Dhillon: Commissioner Burrows?

Burrows: I vote, yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: Thank you as well for that clarification, Chair Dhillon. I also vote, no.

Dhillon: I vote, no. The amendment fails. Commissioner Samuels, do have any other comments to add in the second round?

Samuels: I do. Thank you for scheduling this meeting and giving us an opportunity to discuss this important topic. Like Commissioner Burrows, I'd like to thank my fellow commissioners and Chair Dhillon, our partners at OFCCP and DOJ, the staff of the commission who worked on this, the staff in my office whose initiation and baptism by fire came through working on this MOU, and the members of the public who are tuning in to hear about our deliberations on this important document.

As I mentioned at the outset, I think we all agree that enhanced communication and coordination between our three agencies, is a critical component of effective enforcement of the civil rights laws that are entrusted to our care. I am delighted that we will have continuing opportunities to work with our sister agencies, to share information, to ensure that we are minimizing duplication of resources [01:49:55 inaudible] the myriad complex issues, and massive numbers of complaints that we all receive.

I am disappointed that some of the amendments that Commissioner Burrows and I offered today, which I would have hoped would have garnered universal support, because they simply clarify and improve the technical language of the document, nonetheless were voted down. One of the things that attracted me to the EEOC at the outset, and that I find such a vibrant part of its mission, is that it is structured as a bipartisan commission, in which each of the commissioners’ exercises authority over his or her own votes.

But we discuss things to try to come to consensus decisions, about the ways in which the employment discrimination laws can best be interpreted and enforced. I would hope that going forward, we can all come together to discuss in informal ways before commission meetings. I guess we can't all come together given government and the Sunshine restrictions. But find ways, so that we can continue to talk with each other, so that the documents that we produce are the very best, most tightly reasoned, carefully analyzed, and effectively worded documents that they can be.

It's been a pleasure to have been here for the last almost three weeks. I am so privileged to be a part of helping the commission achieve its mission. I look forward to partnering with DOJ and OFCCP, in our efforts to ensure that we continue to do it better over time. Thank you so much.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you have any comments to offer during the second round?

Lucas: I do not. I yield my time.

Dhillon: Thank you, Commissioner Lucas. I do not have any further comments in the second round, so we will move to the voting of the Memorandum of Understanding. I move to adopt it, is there a second?

Sonderling: Second.

Dhillon: We'll go to a roll call vote for purposes of clarity of the record. Vice Chair Sonderling, how do you vote?

Sonderling: I vote to approve.

Dhillon: Commissioner Burrows?

Burrows: I vote, no.

Dhillon: Commissioner Samuels?

Samuels: Regretfully, I vote no.

Dhillon: Commissioner Lucas?

Lucas: I vote to approve.

Dhillon: I vote to approve. The memorandum is approved. This concludes our meeting. I would like to thank the Office of Legal Counsel, as well as the Vice Chair and my fellow commissioners for your thoughtful remarks, comments, and hard work, and thank the members of the public, who joined us here today. With that, this meeting is adjourned.

Operator: That concludes our conference. Thank you for using AT&T Event Conference Enhanced. You may now disconnect.