EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: E-Verify - Federal Contractors/Subcontractors - Memorandum of Understanding

July 21, 2008

General Services Administration
Regulatory Secretary (VPR)
1800 F Street, N.W.
Room 4035
Attn: Laurieann Duarte
Washington D.C. 20405

Re: FAR Case 2007-013

To Whom It May Concern:

We would like to contribute these brief comments in response to the proposed rule issued by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration on the plan to amend the Federal Acquisition Regulation (FAR) to require certain contractors and subcontractors to use the U.S. Citizenship and Immigration Services' E-Verify system as a means of verifying that certain of their employees are eligible to work in the United States. 73 Fed. Reg. 33,374 (June 12, 2008). This proposed rule implements Executive Order 13,465, which requires the use of E-Verify for the Federal contract workforce. Exec. Order No. 13,465, 73 Fed. Reg. 33,285 (June 6, 2008).

The United States Equal Employment Opportunity Commission (EEOC) enforces the federal laws that prohibit employment discrimination on the basis of an individual's race, color, religion, sex, national origin, age and disability. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq.; Titles I and V of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq.; and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). Further, the EEOC is specifically charged with coordinating and leading the federal government's effort to eradicate workplace discrimination.¹

Before an employer may participate in the E-Verify System pursuant to the proposed rule, it must enter into a Memorandum of Understanding (MOU) with the Department of Homeland Security and the Social Security Administration. As explained in the proposed rule, "[t]his MOU requires employers to agree to abide by current legal hiring procedures and to ensure that no employee will be unfairly discriminated against as a result of the E-Verify program." 73 Fed. Reg. at 33,376. The MOU itself (both the current version and that proposed in conjunction with this proposed rule) cites specifically to the Immigration and Nationality Act's (INA) prohibition against discriminating unlawfully against any individual "because of his or her national origin or, in the case of a protected individual as defined [within the statute] because of his or her citizenship status."

In order to further our shared goal of ensuring a federal workplace free of employment discrimination, we suggest that the proposed rule (at 73 Fed. Reg. at 33,376) and the proposed MOU (at Article II.C.11) be supplemented to add a specific reference to Title VII of the Civil Rights Act of 1964 when discussing the relevant prohibitions against illegal discrimination. Indeed, Executive Order 13,465, which gave rise to the proposed rule by directing federal agencies to use E-Verify for the Federal contract workforce, expressly reaffirms federal antidiscrimination obligations under the INA "or any other law." Exec. Order No. 13,465, 73 Fed. Reg. at 33,286. The inclusion of a reference to Title VII in the proposed rule and MOU would give full effect to this section of E.O. 13,465.

Thank you for the opportunity to provide these comments in response to the proposed rule. If you have any questions or would like to discuss these comments, please feel free to contact Carol Miaskoff, Assistant Legal Counsel, at 202-663-____.

Sincerely,

/s/
Reed L. Russell
Legal Counsel

¹ Under Executive Order 12,067, the EEOC coordinates federal equal employment opportunity regulations, practices and policies. The Executive Order is available on the EEOC web site at: http://www.eeoc.gov/abouteeoc/35th/thelaw/eo-12067.html.

This page was last modified on September 16, 2008.

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