In determining whether a successor employer is liable for the discriminatory acts of its predecessor, OFCCP considers whether imposing liability on the successor would be equitable and in keeping with federal policy. OFCCP judges such liability on a case-by-case basis considering the MacMillan factors identified in EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974). The nine MacMillan factors are:
- Whether the successor company had notice of the charge;
- The ability of the predecessor to provide relief;
- Whether there has been a substantial continuity of business operations;
- Whether the new employer uses the same plant;
- Whether the employer uses the same or substantially the same work force;
- Whether the employer uses the same or substantially the same supervisory personnel;
- Whether the same jobs exist under substantially the same working conditions;
- Whether the employer uses the same machinery, equipment and methods of production; and
- Whether the employer produces the same product.
The CO should direct requests for a determination of successor liability to RSOL and DPO in the national office. The request should include the contractor’s responses, with supporting documentation, to the MacMillan factors described in Appendix A-12.