Reorganization of Equal Employment Enforcement Authority ( 1977 )

D ecem ber 2, 1977
77-66 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL, CIVIL
RIGHTS DIVISION
Reorganization of Equal Employment Enforcement
Authority—Concurrent Authority
We have considered the question of whether a reorganization plan
could, consistent with the Reorganization Act, grant concurrent author­
ity to the Equal Employment Opportunity Commission (EEOC) and
the Departm ent of Justice with respect to certain types of lawsuits. In
our opinion, there is no legal bar to including such a provision in a
reorganization plan.
1. Pertinent Provisions of Title V II of the Civil Rights A ct of
1964
Before it was amended in 1972, § 707 of Title VII, 42 U.S.C. 2000e-6
(1970), granted the Attorney General authority to bring pattern or
practice suits against private employers and labor unions.
In 1972, Title V II was amended by the Equal Employment Opportu­
nity A ct, Public Law 92-261, 86 Stat. 103. As amended, §707 provides
that, after the filing of a charge o f discrimination and the inability of
E E O C to resolve the m atter through conciliation, EEO C may bring a
lawsuit against a private employer or a union.1 42 U.S.C. 2000e-5(f)
(1975 Supp.). In addition, the 1972 Act amended § 707, 42 U.S.C.
2000e-6 (Supp. V 1975), the section authorizing pattern or practice
suits.
Section 707(c) was amended to provide that, effective 2 years after
enactment o f the 1972 A ct, “the functions of the Attorney General
under this section shall be transferred to . . . [EEOC], unless the
President submits, and neither House of Congress vetoes, a reorganiza­
tion plan . . . inconsistent with the provisions of this subsection.” 2 In
1 T he litigation authority of E E O C does not extend to suits against State or local
governments; such matters are to be referred by EEO C to the Attorney General.
* Presumably, this provision refers to a reorganization plan sent to Congress before
M arch 24, 1974.
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March 1974, the transfer of functions took effect. During the interim
period, from March 1972 to March 1974, the Attorney General and
EEOC had concurrent authority to bring pattern or practice litigation
against private firms and labor unions. See § 707(e), Pub. L. No. 92-61,
86 Stat. 107, 42 U.S.C. 2000e-5(f), 2000e-6(e) (Supp. V 1975).
In connection with the current project to reorganize enforcement of
Title VII and other laws prohibiting employment discrimination, the
Civil Rights Division has raised the question whether the Reorganiza­
tion A ct would permit a plan providing, in part, for transfer to the
Attorney General of concurrent authority to bring suits against private
employers and unions under § 707 of Title VII.
2. The Reorganization Act of 1977
Under the Act, 5 U.S.C. § 903(a), the President may prepare and
transmit to Congress a reorganization plan when he determines that
organizational changes “are necessary to carry out any policy set forth
in section 901(a) . . . .” The policies stated in the Act, 5 U.S.C.
§ 901(a), are as follows:
(1) to promote the better execution of the laws, the more effec­
tive management of the executive branch and of its agencies and
functions, and the expeditious administration of the public business;
(2) to reduce expenditures and promote economy to the fullest
extent consistent with the efficient operation of the Government;
(3) to increase the efficiency of the operations of the Govern­
ment to the fullest extent practicable;
(4) to group, coordinate, and consolidate agencies and functions
of the Government, as nearly as may be, according to major
purposes;
(5) to reduce the number of agencies by consolidating those
having similar functions under a single head, and to abolish such
agencies or functions thereof as may not be necessary for the
efficient conduct of the Government; and
(6) to eliminate overlapping and duplication of effort.
Clearly, as a general matter, it would be contrary to policy numbered
(6)—elimination of “overlapping and duplication o f effort”—to grant
concurrent jurisdiction to two agencies. Section 903(a) is not to be
read, however, to require that a reorganization plan, or particular
provisions o f a plan, promote all of the policies o f § 901(a). It is
sufficient that a plan further any one of those policies. The present
question of concurrent authority must be considered in context. The
overall effect o f the proposed plan might be a significant reduction in
duplication of Federal efforts to remedy employment discrimination.
Moreover, it is likely that the proposed plan would assign significant
new responsibilities to EEOC, and this might justify supplementing
EEO C’s enforcement of § 707 with enforcement by the Attorney Gen­
eral. Thus, shared jurisdiction over § 707 might mean more effective
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enforcement. Finally, coordination between EEO C and the Attorney
General would be entirely feasible. Presumably, before a suit could be
brought by the Attorney General, the procedures of § 706 (that is, a
conciliation proceeding before EEO C) would have to be followed.
The transfer of concurrent jurisdiction to the Attorney General could
be regarded as the transfer of “part o f . . . [an agency’s] functions,”
within the meaning of 5 U.S.C.A. § 903(a)(1). We are not aware of
close precedents under the prior reorganization statute, but some sup­
port for our conclusion is provided by the 1972 amendment to § 707(c).
As noted above, under that provision, the transfer o f the Attorney
General’s authority to E E O C would not have taken place if an incon­
sistent reorganization plan had gone into effect before March 1974.
There was no such plan, but the terms of § 707(c) would have permit­
ted, as one possibility, a plan preserving the Attorney General’s author­
ity and also the concurrent authority o f EEOC.
Limits upon the nature or scope o f reorganization plans are pre­
scribed in 5 U.S.C.A. 905, but none o f those limits is pertinent to the
present matter.
3. Conclusion
In conclusion, no provision of the Reorganization A ct would forbid
including in a plan a provision transferring to the Attorney General
concurrent jurisdiction over § 707 suits against private employees and
unions. Therefore, the question whether to include such a provision is
essentially a question of policy.
L eon U lm a n
Deputy Assistant Attorney General
Office o f Legal Counsel
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