Donald Livingston Quoted in SHRM Article on Possible EEOC-OFCCP Merger

Akin Gump labor and employment partner Donald Livingston was quoted in the Society for Human Resource Management article “Merger of EEOC and OFCCP May Be in the Works,” which looks at the possible merger between the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs.

Livingston, a former general counsel to the EEOC, said a merger would be consistent with an executive order by President Trump calling for a reorganization of the executive branch to improve efficiency, effectiveness and accountability and eliminate unnecessary agencies. “Because EEOC’s mandate is much broader than the OFCCP’s” he said, “if a merger were to occur, I would expect that the OFCCP function would be transferred to the EEOC and not vice versa.”

Livingston, however, said he thinks “a merger would not benefit employers.” While the EEOC is accustomed to seeking statutory remedies such as compensatory and punitive damages, he noted that the OFCCP seeks only contract remedies. Therefore, if the agencies merged, “It is reasonable to think that the EEOC would want to convert every claim of breach of contract into a Title VII [of the Civil Rights Act of 1964] violation in order to demand a larger monetary remedy,” he said.

As for whether either agency would want to merge, Livingston does not think that is the case. “The EEOC already has significant responsibilities, including dealing with federal-sector discrimination claims, and the OFCCP has a long history within a cabinet-level department,” he said. He added that the last time a function was transferred to the EEOC was during the Carter administration.