In February 2017, we speculated whether the Trump Administration would eliminate the OFCCP as a possible cost-cutting measure. The discussion has continued since that time, and has, in the past weeks gathered more interest.

The latest on the topic of the Office of Federal Contract Compliance Programs’ (OFCCP) fate stems from a recommendation by the Heritage Foundation that OFCCP be merged into the Equal Employment Opportunity Commission (EEOC). According to the Heritage Foundation report the EEOC and OFCCP are redundant:

Taxpayers should not fund two separate and duplicative anti-discrimination agencies, one for federal contractors and one for all employers.

There are differing opinions, of course, but the Foundation’s premise above overlooks many fundamental distinctions between the two agencies, the primary one being OFCCP unique authorization to oversee and enforce compliance with affirmative action obligations stemming from the federal procurement process.

As federal contractors know well, anti-discrimination, as handled by EEOC, is not the same as the affirmative action obligations faced by contractors. Nor do the come from the same source of authority.  While Executive Order 11246 can be amended by executive order, the statutory authority to enforce the Vietnam Veterans Readjustment Assistance Act and Section 503 of the Rehabilitation Act is provided to the Department of Labor.  Thus, enforcement authority over VEVRAA and Section 503 cannot be shifted to EEOC by executive order; rather, congressional action would be necessary.

And, if the obligations of the two agencies do not align, the question looms whether shifting OFCCP under the wing of EEOC would actually achieve any economic benefit – which seems to be an intended benefit of the consolidation. The Trump Administration has issued a number of cost-cutting executive orders and taken various actions aimed at minimizing burdens on the business community. In fact, the White House is soliciting input until June 2017 on this very topic as part of President Trump’s Executive Order on a Comprehensive Plan for Reorganizing the Executive Branch.

Also timely is the anticipated release of the Administration’s fiscal year 2018 budget, due out this week. The budget’s suggested funding level for OFCCP may signal whether the Trump Administration has an OFCCP/EEOC merger on its mind.  Specifically, OFCCP might be eliminated from the budget or have its budget significantly reduced as a signal that its days are numbered.