[Federal Register Volume 63, Number 22 (Tuesday, February 3, 1998)]
[Notices]
[Pages 5518-5521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2593]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

DEPARTMENT OF JUSTICE


Office of Special Counsel for Immigration Related Unfair 
Employment Practices; Coordination of Functions; Memorandum of 
Understanding

agencies: Equal Employment Opportunity Commission and Office of Special 
Counsel for Immigration Related Unfair Employment Practices, Department 
of Justice.

action: Notice.

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summary: The Equal Employment Opportunity Commission (``EEOC'') and the 
Office of Special Counsel for Immigration Related Unfair Employment 
Practices, Department of Justice (``Office of Special Counsel''), have 
adopted as final a Memorandum of Understanding which replaces an 
earlier 1989 Memorandum between the two agencies, published at 54 FR 
32499, Aug. 8, 1989. Among other changes, the new Memorandum has been 
updated to reflect amendments to the Immigration and Nationality Act. 
As with the earlier Memorandum, the Agreement makes each agency the 
agent of the other for the sole purpose of receiving discrimination 
charges under Title VII of the Civil Rights Act of 1964 and section 102 
of the Immigration Reform and Control Act of 1986. The Agreement also 
provides for interagency coordination of charge processing activities 
to promote efficiency and avoid duplication in the administration and 
enforcement of these statutes.

effective date: February 3, 1998.

for further information contact: Anita Stephens, Office of Special 
Counsel for Immigration Related Unfair Employment Practice, U.S. 
Department of Justice, P.O. Box 27728, Washington, D.C. 20038-7728; 
(800) 255-7688 (toll free) or (202) 616-5594; or (800) 237-2515 (toll 
free TDD) or (202) 616,5525 (TDD). At the Equal Employment Opportunity 
Commission, contact Carol R. Miaskoff, Assistant Legal Counsel for 
Coordination, Office of Legal Counsel, EEOC, 1801 ``L'' Street, N.W., 
Washington, D.C. 20507; (202) 663-4689 (Voice) or 663-7026 (TDD).

supplementary information: The Memorandum of Understanding was modified 
in response to amendments to the Immigration and Nationality Act that 
added document abuse and intimidation or retaliation as unfair 
immigration related practices. Other changes have been made based on a 
reexamination of the 1989 Memorandum and consideration of the agencies' 
experience under it. Among the changes included in the new Memorandum 
of Understanding are:
    1. The Memorandum's ``Guidelines for EEOC Staff'' and ``Guidelines 
for Attorneys in the Office of Special Counsel'' (``Guidelines'') now 
include referral procedures for charges alleging unfair document 
practices. These changes reflect 1990 amendments to the Immigration and 
Nationality Act that added document abuse as an unfair immigration 
related practice.
    2. The Guidelines' referral procedures for charges alleging 
retaliation have been broadened and consolidated. These changes enhance 
the clarity of the agreement and reflect 1990 amendments to the 
Immigration and Nationality Act that added intimidation or retaliation 
as an unfair immigration related practice.
    3. The Memorandum and Guidelines provide that charges shall not be 
referred from one agency to the other if the charging party has 
declined referral. Thus, the charging party retains control over the 
decision whether to file a charge with each agency.
    4. The Memorandum and Guidelines specify that charges alleging 
individual act, pattern or practice, or class discrimination are 
encompassed by the procedures therein.
    5. The Guidelines for EEOC Staff no longer include as a condition 
for referral of charges to the Office of Special Counsel a requirement 
that the EEOC ask whether the charging party is a U.S. citizen, U.S. 
national, or work-authorized alien. Information regarding immigration 
status is generally not relevant under the statutes enforced by

[[Page 5519]]

the EEOC, and Office of Special Counsel staff are better suited to make 
determinations about a charging party's immigration status.
    6. Lastly, the Guidelines add provisions for each agency to consult 
with the other if a charge raised allegations not directly addressed by 
the Guidelines and the agency believes referral may be appropriate. The 
new provision should further promote the elimination of duplication in 
the agencies' enforcement efforts.

Paul M. Igasaki,
Chairman, Equal Employment Opportunity Commission.
John D. Trasvina,
Special Counsel, Office of Special Counsel for Immigration Related 
Unfair Employment Practices.

Memorandum of Understanding Between The Equal Employment Opportunity 
Commission and The Office of Special Counsel for Immigration Related 
Unfair Employment Practices

    The Equal Employment Opportunity Commission (``EEOC''), under 
Title VII of the Civil Rights Act of 1964, as amended (``Title 
VII''), has jurisdiction to process charges alleging individual act, 
pattern or practice,or class employment discrimination on the basis 
of national origin and retaliation. The Department of Justice, Civil 
Rights Division, Office of the Special Counsel for Immigration 
Related Unfair Employment Practices (``Special Counsel''), under 
section 274B of the Immigration and Nationality Act, has 
jurisdiction to process charges alleging an individual act or a 
pattern or practice of employment discrimination on the bases of 
national origin, citizenship status, unfair document practices, and 
intimidation or retaliation. The purpose of this Memorandum of 
Understanding between the EEOC and the Special Counsel is to prevent 
any overlap in the filing of charges of discrimination under these 
statutes and to promote efficiency in their administration and 
enforcement. This Memorandum of Understanding is intended to apply 
to Title VII and Section 274B of the Immigration and Nationality Act 
as currently written, as well as to any future amendments of these 
acts.
    The parties to this Memorandum agree as follows:

I. Exchange of Information

    The EEOC and the Special Counsel shall make available for 
inspection and copying to officials from the agency any information 
in their records pertaining to a charge or complaint being processed 
by the requesting agency. Such request shall be made by the Chairman 
of the EEOC or his or her designee, or the Special Counsel or his or 
her designee.

II. Confidentiality

    When the Special Counsel receives information obtained by the 
EEOC which is subject to the confidentiality requirements of 
sections 706(b) and 709(e) of Title VII, the Special Counsel shall 
observe those requirements as would the EEOC, except in cases where 
the Special Counsel receives the same information from a source 
independent of the EEOC.

III. Referral of Charges

    When, during the processing of a charge by either agency, it 
becomes apparent to the agency processing the charge that the charge 
or any aspect of the charge falls outside its jurisdiction, but may 
be within the jurisdiction of the other agency, the agency 
processing the charge will immediately dismiss as much of the charge 
as may fall within the jurisdiction of the other agency and, if the 
charging party has not declined referral, refer the dismissed 
aspects of the charge to the other agency, and notify the charging 
party and the respondent of the referral. In determining whether to 
refer such a charge or such aspect of a charge to the other agency, 
the agency processing the charge shall be guided by the attached 
Guidelines.

IV. Appointment of Respective Agents

    By this Memorandum of Understanding, the agencies hereby appoint 
each other to act as their respective agents for the sole purpose of 
allowing charging parties to file charges to satisfy the statutory 
time limits. To ensure that filing deadlines are satisfied, each 
agency will accurately record the date of receipt of charges and 
notify the other agency of the date of receipt when referring a 
charge.
    This Memorandum of Understanding supersedes the 1989 agreement.

    Dated: December 18, 1997.

    Approved and Accepted for the Equal Employment Opportunity 
Commission.
Gilbert F. Casellas
Chairman, Equal Employment Opportunity Commission.

    Dated: December 18, 1997.

    Approved and Accepted for the Office of Special Counsel for 
Immigration Related Unfair Employment Practices.
John D. Trasvina
Special Counsel, Office of Special Counsel for Immigration Related 
Unfair Employment Practices.

Guidelines for EEOC Staff

I. National Origin Charges

    Charges or aspects of charges alleging an individual act or a 
pattern or practice of discrimination on the basis of national 
origin should be referred to the Special Counsel when all of the 
following conditions are met:
    (1) The charge alleges discrimination against the complainant 
with respect to his or her hiring, discharge,or recruitment or 
referral for a fee;
    (2) The charge is outside the jurisdiction of the EEOC in that 
the employer (a) does not have 15 or more employees for each working 
day in each of 20 or more calendar weeks in the current or preceding 
calendar year or (b) is an employer that is expressly excluded from 
coverage under Title VII; and
    (3) The employer may have had at least 4 employees, including 
both full-time and part-time employees, on the date of the alleged 
discriminatory occurrence as required by the Special Counsel's 
regulations at 28 CFR Part 44.

II. Citizenship Status Charges

A. Referral to the Special Counsel

    Charges or aspects of charges alleging an individual act or 
pattern or practice of discrimination on the basis of citizenship 
status should be referred to the Special Counsel when all of the 
following conditions are met:
    (1) The charge alleges discrimination against the complainant 
with respect to his or her hiring, discharge, or recruitment or 
referral for a fee; and
    (2) The employer may have had at least 4 employees, including 
both full-time and part-time employees, on the date of the alleged 
discriminatory occurrence as required by the Special Counsel's 
regulations at 28 CFR Part 44.

B. Special Procedure

    (1) A charge or aspect of a charge of citizenship status 
discrimination that cannot be referred to the Special Counsel 
should, to the extent possible, be construed as alleging national 
origin discrimination and processed in accordance with Title VII, if 
the employer otherwise is covered by Title VII.
    (2) A charge or aspect of a charge that alleges that a 
citizenship requirement or preference has the purpose or effect of 
discriminating on the basis of national origin and is otherwise 
within the jurisdiction of the EEOC, should be processed in 
accordance with Title VII. See 29 CFR Part 1606 and Espinoza v. 
Farah Mfg. Co. Inc., 414 U.S. 86 (1973). In addition, if any aspect 
of this charge satisfies the conditions, described in section II A 
above, for refusal to the Special Counsel, it should be so referred.

III. Unfair Document Practices (Document Abuse)

A. Referral to the Special Counsel

    Charges or aspects of charges alleging an individual act or a 
pattern or practice of document abuse should be referred to the 
Special Counsel when all of the following conditions are met:
    (1) The charge alleges that the employer requested complainant 
to produce more or different documents than required to complete the 
Immigration and Naturalization Service Form I-9 (Employment 
Eligibility Verification form), or that the complainant's 
documentation was rejected by the employer during the I-9 process, 
or that the employer requested the complainant to produce a specific 
document or documents for purposes of completing the I-9 or 
establishing employment eligibility; and
    (2) The employer may have had at least 4 employees, including 
both full-time and part-time employees, on the date of the alleged 
document abuse as required by the Special Counsel's regulations at 
28 CFR Part 44.

B. Special Procedures

    (1) A charge or aspect of a charge of document abuse that cannot 
be referred to the Special Counsel should be construed to the extent 
possible as alleging national origin discrimination, if the employer 
otherwise is covered by Title VII.
    (2) A charge or aspect of a charge alleging that document abuse 
has the purpose or effect of discriminating on the basis of

[[Page 5520]]

national origin should, to the extent possible, be processed in 
accordance with Title VII, if the employer otherwise is covered by 
Title VII. In addition, if any aspect of this charge satisfies the 
conditions, described in section III A above, for referral to the 
Special Counsel, it should be so referred.

IV. Intimidation or Retaliation

    Charges or aspects of charges alleging an individual act or a 
pattern or practice of intimidation or retaliation should be 
referred to the Special Counsel when all of the following conditions 
are met:
    (1) The charge alleges that any person or other entity 
intimidated, threatened, coerced, or retaliated against any 
individual for the purpose of interfering with any right or 
privilege secured under section 274B of the Immigration and 
Nationality Act, or because the individual intends to file or has 
filed a charge or complaint, testified, assisted, or participated in 
any manner in any investigation, proceeding, or hearing under 
section 274B of the INA; and
    (2) The person or other entity employs four or more individuals.

V. Unique Situations

    If a charge or aspect of a charge raises allegations not 
directly addressed in these guidelines and EEOC staff believes that 
referral to the Special Counsel may be appropriate, EEOC staff shall 
contact EEOC's Office of Legal Counsel, who then shall consult with 
the Office of Special Counsel.

VI. Procedure for Referral

A. General Provisions

    (1) When the charging party has not declined referral, any 
charge or aspect of a charge alleging discrimination on the basis of 
national origin, citizenship status, retaliation, or document abuse 
that satisfies all of the conditions for referral to the Special 
Counsel should be forwarded by EEOC staff, with the appropriate 
file, to the Office of Special Counsel for Immigration Related 
Unfair Employment Practices, P.O. Box 27728, Washington, DC 20038-
7728.
    (2) When forwarding a charge or aspect of a charge to the 
Special Counsel, EEOC staff should follow any instructions issued by 
the Commission regarding this procedure, including instructions 
relevant to informing the charging party of the possibility of 
referral and providing notice of the referral to the parties.

B. Additional Procedures Where the Commission Retains Jurisdiction

    (1) Where the Commission retains jurisdiction over any aspect of 
a charge when another aspect of the charge is being referred to the 
Special Counsel in accordance with these Guidelines, the EEOC field 
office, when making the referral, will inform the Special Counsel of 
the retained jurisdiction. This notice to the Special Counsel will 
specify the allegation(s) over which the Commission retains 
jurisdiction. The notice will also state that the processing EEOC 
field office will consult with the Special Counsel to coordinate, to 
the extent possible, the investigative activities of both agencies 
and assure that duplication of effort in processing the charge is 
minimized.
    (2) After confirming that the Special Counsel has received the 
referred aspect of the charge, the EEOC field office should attempt 
consultations with the Special Counsel to coordinate, to the extent 
possible, the investigative activities of both agencies and assure 
that duplication of effort in processing the charge is minimized.

C. Special Procedures Regarding 706 Agencies

    Where preferable and not contrary to an existing work sharing 
agreement, EEOC staff may choose not to defer to a 706 Agency any 
charge or portion of a charge, if the charge or any aspect of the 
charge satisfies all of the conditions for referral to the Special 
Counsel. Charges or portions of charges not deferred pursuant to 
this provision should be processed according to the procedures 
described in these Guidelines.

VII. Procedures Regarding Referrals from the Special Counsel

    Upon receipt of a charge or aspect of a charge referred from the 
Special Counsel, the processing EEOC field office should confirm 
that the charge or aspect of a charge is within the jurisdiction of 
the Commission. The field office should then notify the Special 
Counsel of its receipt of the charge or aspect of a charge.
    If the Special Counsel has retained jurisdiction over any aspect 
of a charge when another aspect of the charge has been referred to 
the EEOC, the field office should attempt to coordinate with the 
Special Counsel, to the extent possible, the investigative 
activities of both agencies. If the Special Counsel has not retained 
jurisdiction over any aspect of a charge that has been referred to 
the EEOC, the field office should process the referred charge as it 
would any other charge of discrimination.

Guidelines for Attorneys in the Office of Special Counsel

I. National Origin Charges

    Charges or aspects of charges alleging individual act, pattern 
or practice, or class discrimination on the basis of national origin 
should be referred to the EEOC when all of the following conditions 
are met:
    (1) Any aspect of the charge that alleges national origin 
discrimination is outside the jurisdiction of the Office of Special 
Counsel or fails to state a claim under 8 U.S.C. 1324b; and
    (2) The charge alleges discrimination against the charging party 
with respect to his or her hiring, discharge, compensation, terms, 
conditions, or privileges of employment.

II. Citizenship Status and Document Abuse Charges

    Charges or aspects of charges alleging individual act, pattern 
or practice, or class discrimination on the basis of citizenship 
status or document abuse should be referred to the EEOC when all of 
the following conditions are met:
    (1) Any aspect of the charge that alleges national origin 
discrimination is outside the jurisdiction of the Office of Special 
Counsel or fails to state a claim under 8 U.S.C. Sec. 1324b;
    (2) The charge alleges discrimination against the charging party 
with respect to his or her hiring, discharge, compensation, terms, 
conditions, or privileges of employment; and
    (3) The alleged discriminatory practice may have had the purpose 
or effect of discriminating on the basis of national origin.

III. Retaliation

    Charges or aspects of charges alleging retaliation on an 
individual, pattern or practice, or class basis should be referred 
to EEOC when the charge alleges retaliation because an individual 
has opposed an employment practice that he or she believed to be 
unlawful under Title VII, or because an individual has made a 
charge, testified, assisted, or participated in any manner in an 
investigation, proceeding, or hearing under Title VII.

IV. Unique Situations

    If a charge or aspects of a charge raises allegations not 
directly addressed in these guidelines, and the Office of Special 
Counsel staff believes that referral to the EEOC may be appropriate, 
Office of Special Counsel staff shall consult with the Special 
Counsel, who will designate an Office of Special Counsel attorney to 
consult with the EEOC's Office of Legal Counsel.

V. Procedure for Referral

A. General Provisions

    When the charging party has not declined referral, any charge or 
aspect of a charge alleging individual act, pattern or practice, or 
class discrimination on the basis of national origin, citizenship 
status, retaliation, or document abuse that satisfies all of the 
conditions for referral to the EEOC should be forwarded to the 
appropriate EEOC field office.

B. Additional Procedures Where the Office of Special Counsel Retains 
Jurisdiction

    (1) Where the Office of Special Counsel retains jurisdiction 
over any aspect of a charge when another aspect of the charge is 
being referred to the EEOC in accordance with these Guidelines, the 
attorney making the referral will inform the EEOC of the retained 
jurisdiction. This notice to the EEOC will specify the claim(s) over 
which the Office of Special Counsel retains jurisdiction. The notice 
will also state that the processing attorney will consult with the 
EEOC to coordinate, to the extent possible, the investigative 
activities of both agencies and assure that duplication of effort in 
processing the charge is minimized.
    (2) After confirming that the EEOC has received the referred 
aspect of the charge, the Office of Special Counsel attorney should 
attempt consultations with the EEOC to coordinate, to the extent 
possible, the investigative activities of both agencies and assure 
that duplication of effort in processing the charge is minimized.

VI. Procedures Regarding Referrals from the EEOC

    Upon receipt of a charge or aspect of a charge referred from the 
EEOC, the Office of Special Counsel should confirm that the

[[Page 5521]]

charge or aspect of a charge is within the jurisdiction of the 
Office of Special Counsel.
    If the EEOC has retained jurisdiction over any aspect of a 
charge when another aspect of the charge has been referred to the 
Office of Special Counsel, the attorney handling the charge for the 
Office of Special Counsel should attempt to coordinate, to the 
extent possible, the investigative activities of both agencies. If 
the EEOC has not retained jurisdiction over any aspect of a charge 
that has been referred to the Office of Special Counsel, the 
attorney should process the charge as he or she would any other 
charge of discrimination.

[FR Doc. 98-2593 Filed 2-2-98; 8:45 am]
BILLING CODE 6570-01-M