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CI.INTON LIBRARY PHOTOCOPY
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�MATERIAL
ON EEOC's FEDERAL SECrOR
ADMINISTRATIVE REsPoNSlBWTIES
Patt 1614 -CUlTtnt Federal Sector Administrtitive Process
'.
Summaries of Part 1614
•
April 10, 1992 Federal Register - see page 12634 for final rule on 29 CFR Part 1614
, I
Part 1613 - Previous Regulations Governing Agency Processing 0/ Discrimination Complaints
•
Summaries of 29 CFR Part 1613
•
Reasons for Changing the 1613 Process
•
November 23, 1987 Report of House Committee on Government Operations,
Overhauling the Federal EEO Complaint Processing System: A New Look at a persistent
Problem
,Proposed Federal Employee FDirness Act (FBFA)
Legislation to amend Title Vll, ADEA, and the Civil Service Reform Act to change the
federal. sector complaint process, principally by consolidating the majority of the process within
'the EEOC.
'
.' Summaries of S. 404, FEFA '93 (Glenn Senate bill)
•
October 27, 1993 Report of the Senate Committee on Governmental Affairs on the
Federal Employee Fairness Act of 1993
•
Summaries of H.R. 2721, FEFA '93, introduced by Chairman Major Owens
• (this is the bill that is moving)
•
Summaries ofH.R. 1111, FEFA '93, introduced by Rep. Matthew Martinez
•
April 9, 1992, Joint .oversight Hearing of House :Ed & Labor Subcommittee on
Employment Opportunities and the House Post Office and Civil Service Subcommittee
on Civil Service on FEFA of 1992:
,
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Statement of Chairman Matthew G. Martinez
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Statement of coalition of interested civil rights groups
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Part 1614
Nutshell Summary
Part 1614's goal is to promote greater administrative fairness in
the investigation and consideration of federal sector EEO
complaints by limiting to 180 days the.amount of time a complaint
is solely in the agency's domain.
The result sho.uld be a faster
and fairer process. Part 1614 replaces the stratified format of
part 1613 with a more user-friendly organizational scheme
consisting of six subparts. While not completely overhauling
part 1613 because of statutory constraints, part 1614 introduces
substantial changes. An agency must now conduct. within 180 days
'a complete and thorough investigation. N hearing must also be
conducted with findings, conclusions, and remedies decided within
180'days. Reassignment under the Rehabilitation Act has become
an affirmative requirement. Finally, exhaustion requirements. and
a limitations period is established for ADEA complainants to
bring them in line with Title VII.
�,
•
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Part 1614
Executive
S~mmary
29 C.F.R. Part 1614, the federal sector equal employment
opportunity complaint processing regulations, makes fundamental
changes to the existing system under part 1613 while adhering to
the statutory mandate of Title VII's section 717. The objective
of part 1614 is to promote greater administrative fairness in the
investigation and consideration of federal sector EEO complaints.
The regulations seek to accomplish that goal by limiting to 180
days the length of time in which the complaint is within the sole
jurisdiction of the agency. The result should be a faster
administrative process less dominated by the agency. A summary
of the key changes implemented by part 1614 follows.
Part 1614 retains the initial ~ramework of the part 1613
complaint processing procedures. The complainant must ':first seek
counseling from the discriminating agency and then file a
complaint with that agency.
The agency must aC,cept or reject the
complaint and, if accepted, conduct a complete and fair
investigation within 180 days from the filing of the complaint.
Part 1614 continues to incorporate the counseling function
because of its significant contribution in informally resolving
disputes at an early stage.
(Apprcximately eighty percent of
counseling contacts do not mature into complaints.) The initial
agency process is retained to comply with the statutory
framework.
Part 161. eliminates the informal adjustment and,
proposed dispo'sition stages of part 1613.
After the agency completes lts investigation, the complainant may
request.either a hearing by an EEOC administrative judge or an
immediate final decision.by the employing agency. The
administrative judge must conduct a hearing,issue findings of
fact and conclusions of law, and order an appropriate remedy
w,Lthin 180 days. To ensure thorough and fair investigations by
the discriminating agency, the regulation permits the use of
adverse inferences and summary dispositions for some or all
issues in a complaint. After the final decision of the agency is
issued, the complainant may appeal to the Commission within 30
days. Either party may request, reconsideration by the Commission
or seek judicial review.
Part 1614 differs organizationally from the current complaint
processing system to facilitate greater understanding by both
those who file complaints and those administering its provisions.
The current system under part 1613, discretely organized
according to the type of discrimination complaint at issuei
~onsists of separate subparts for the processing of Title VII,
age, class, mixed,and handicapped complaints, all of which lead
to a lot of unnecess'ary confusion.
Part 1614 seeks to eliminate
the redundancy and cross-referencing caused by part 1613's
awkward structure by consolidating.the procedures as much as
possible. Thus, its six subparts concern ageffty processing of
complaints generally (Subpart A), prGvisions applicable to
particular complaints (Subpart B), related procedures (Subpart
�"
C)/ appeals and civil actions (Subpart D), remedies and
corrective action (Subpart E)/ and other matters of general
applicability (Subpart F).
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Part 1614 - Summary
Organization
Part 1614 is'structured into six subparts:
Subpart A:
Agency programs promoting equal employment
opportunity, and procedures for processing
individual and class complaints of
discrimination and retaliation
Subpart B:
Additional provisions on processing certain
types of complaints (Age, Equal Pay,
Rehabilitation Act, ,and,cla~s)
Subpart C:
Explains relationship among EEO pro'cess,
negotiated grievance 'procedure and MSPB
appeals
Subpart D:
EEOC appeals and the right to file civil
actions under each EEOC administered statute
Subp'art E:
EEOC's policy on remedies and relief for
discrimination
Subpart F:
'Miscellaneous provisions applying to EEO
programs
Coverage
Applies to all complaints of discrimination includin'g those under
the Equal Pay Act,'
Affirmative Programs
Each agency shall maintain a continuing affirmative program to
promote equal employment opportunity and to identify and
eliminate discriminatory practices and policies. Part 1614
outlines specific objectives and tasks that agencies must achieve
-- from appraisal and communication to reasonable accommodation
and reassignment.
Pre-complaint Processing
As with part 1613, a person believing ihey,have been retaliated
or discriminated against on basis of race, color, religion, sex,
national origin, age, or handicap must, under part ~614, (1) seek
counseling from the alleged discriminating agency prior to filing
a complaint, and, (2) file a written complaint with that agency
if an informal resolution was not reached,
Part 1614 extends
from 30 to 45 days the time limit during which an employee or
applicant must generally contact a counselor ~fter the
discriminatory event or personnel ac~ion occurs, An agency may
permit counseling up to 180 days after the discriminatory eveni
�,"
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notifi~d
several factors, e.g., (1) the ~ndividual was not
of the time limits or oth~rwise aware of them, or {2) he
or she did not know and reasonably should not have known that the
matter or personnel action that occurred was discriminatory.
Counseling beyond ISO days shall only be permitted in situations
where the late. filing of a private sector charge ,would be
justified by facts indicating the appropriateness of waiver,
estoppel or equitabl~ tolling.
based
Ordinarily, counseling must be completed within 30 days unless
both parties agree to a maximum extension of an additional 60
days.
In cases where an employee or applicant elects to use
alternative dispute resolution procedures available as part of
the agency's counseling function~ counseling must be completed
within 90 days.
If the matter has not been informally resolved,
the individual shall be informed in writing at the conclusion of
the counseling period of the right to file a discrimination
complaint.
Agency Processing of Individual Complaints
An agency must acknowledge receipt of a properly filed complaint
in writing and couducta complete and fair investigation within
ISO days from the filing date of the complaint. With the
complainant's consent, agencies may extend processing for up to
an additional 90 days~
In developing a complete and impartial
factual record, agencies may use any fact-finding methods that
efficiently and thoroughly address the matters at issue. During
the ISO-day period, agencies' responsibilities are limited to
investigation, settlement attempts and issuance of a notice of
final action. Part 1614 eliminates the informal adjustment and
proposed disposition stages of part 1613.
After the agency completes its investigation within 180 days from
,the filing of .the complaint or within any ,allowable period of
extension, the agency .shall notify the complainant that he or she
can request a hearing by an EEOC administrative judge within 30
days or, alternatively, an immediate final decision by the
employing agency.
If the complainant requests a final decision
or the 30-day period lapses without the individual requesting a
hearing, the agency will have 60 days to issue the decision ..
I
If the complainant requests a hearing, an administrative judge
shall oversee discovery, conduct a hearing, issue findings of
facts and conclusions of law, and, where ~ finding of
discrimination is made, order an appropriate remedy. To insure
complete, fair investigations being conducted by-agencies within
the. 180-day limit, the regulation prescribes the use of adverse
inferences and permits both parties 'to obtain findings of fact
and conclusions of law without a hearing, a type of summary
disposition, for some or all issues in a complaint. The use of
adverse inferences and summary dispositions wrll provide
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incentives for ~gencies to conduct complete, fair investigations
within the lSO-day period.
The administrative judge must decide
the case within lSO days unless he or she makes a written
determination that good cause exists for enlarging the normal
lSO-day period.
By keeping the hearing stage at the agency level as part of the
investigatory process, the agency retains the same opportunity
that it now has under part 1613 to issue a final decision
provided it does so within 60 days of receipt of the
administrative judge's findings and conclusions. The final
decision shall consist of findings by the agency on the merits of
each issue in the complaint, appropriate relief if discrimination
is found, and contain notice of the complainant's appellate
rights and time limits.
The administrative judge's fiI1:<iings,
conclusions, and relief ordered shall become the agency's final
decision if the agency does not' issue its own decision within 60
days. After the final decision of the agency is issued, or the
findings and conclusions become final, the complainant may appeal
to the Commission by filing an appeal with the EEOC within 30
days.
Appellate Processing by EEOC
Where an agency dismisses all or part of a complaint, a
dissatisfied complairiant may file an expedited appeal with the
EEOC to guard against undue delays in complaint processing
because of an improper dismissal.
The EEOC may determine that a
dismissal was improper, reverse the dismissal, and remand the
matter back to the agency for completion of the investigation.
A complainant, member or agent of a class, or a dissatisfied
grievant may appeal to the EEOC from a final decision or from a
decision of an agency to dismiss an allegation in a·complaint.
Except for mixed case complaints, any dismissal of a complaint or
portion of a complaint or any final decision may be appealed to
the Commission within 30 days from a complainant's receipt of a
. dismissal or final decision. Any grievance decision may also be
appealed within 30 days of a receipt of a decision.
The Commission will examine the record, may supplement it, draw
adverse inferences when appropriate, and issue decisions.
Either
party may request reconsideration by the Commission of an OFO
decision, or the appellant can file a civil action in federal
court.
The Rehabilitation Act
Based on the plain language of § 50f of the Rehabilitation Act,
part 1614 specifies that the legislative and judicial branches
are not covered under that Act.
Current users of illegal drugs,
with some exceptions, are now excluded from t~e definition of an
individual with handicap under § 512 of the Americans with
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�Disabilities Act.
Part 1614 prescribes reassignment as a special affirmative
requirement under section 501. The reassignment obligation would
not be a component of the statute's reasonable accommodation
requirement under section 504. The agency 'should consider
reassignment whenever an employee with handicaps can no longer
perform his or her job and must reassign such an employee
whenever the circumstances described. in the regulation are met.
Opting Out of Class Complaints
Part 1614 eliminates the optirtg out prOV1Sl0ns contained in part
1613 that preserved the individual's right to file his or her own
complaint or lawsuit. All class members will receive notice that
the class complaint has been filed and notice of any se'tt:lement
or decision on the class complaint.
If they do not wish to
participate in the class or ~o file a claim for individual
relief, they do not have to do so~
Those wishing to participate
will have the opportunity to object to any proposed settlement
and to file claims for individual relief if discrimination
found.
Election of, Remedies
Employees of agencies subject to 5 U.S.C.S 7121(d) and covered
by a collective bargaining agreement that permits allegations of
discrimination to be raised in a negotiated grievance procedure
must elect initially to pursue a matter that is both grievable
and allegedly discriminatory either through the negotiated
grievance procedure or under part 1614, but not both. An
aggrieved employee who files a complaint under part 1614 may not
thereafter file a grievance on the same 'matter. Likewise, an
aggrieved employee who files a grievance alleging discrimination
may not thereafter file .a complaint on the same matter und~r part
1614. A grievant maintains the right to appeal to EEOC from a
final grievance decision.
Agencies not subject to S' 7121(d) may, but need not, hold a
complaint in abeyance during the processing of a grievance on the
same matter provided they notify the complainant. This provision
waa added in consultation with the U.S. Postal Service which
estimates it may reduce the number of charges that will require
processing by 2,000 or more a year.
If agencies elect not to
hold the complaint in abeyance, the normal time limits apply and
the agency must issue a notice of final action on the complaint
within 180 days.
.
An aggrieved person may initially file a mixed case complaint
with an agency urider part 1614' or an appeal on th~ same matter
with the MSPB pursuant to 5 C.F.R. 1201.151, but not both. When
a mixed case appeal is dismissed by the MSPB for jurisdictional
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�reasons, an individual is allowed to file an EEO complaint
provid,ed they obtain counseling within 45 days from the notice of
MSPB's.dismissal.If a person files a timely appeal with MSPB
from the agency's processing of a mixed case complaint and it is
dismissed by MSPB for juri~dict~onal reasons, the agency shall
give the individual the right to elect between a hearing by an
administrative judge or qn immediate final decision by the
agency.
Individuals who have received a final decision from MSPB
on a mixed case appeal or on the appeal of a final decision on a
mixed case complaint may petition EEOC to consider that decision.
When an individu~l has not filed a notice of intent to sue but
has pursued a complaint through the administrative process, the
courts have split on the issue of the correct statute o~
limitations applicable to ADEA lawsuits by federal employees.
EEOC believes that the limitations period applicable to civil
actions under Title VII should be borrowed for federal sector
ADEA lawsuits. That period is now 9rr days as a result of the
recently enacted Civil Rights Act of 1991. Besides applying to
Title VII, it also applied the 90-day period to suits brought
under sections 501 and 505(a) of the Rehabilitation Act, and ADEA
suits brought by private sector and state and local government
employees who have filed a charge with the Commission under ADEA.
Those persons who elect to use the notice provision as the
prerequisite to suit in U.S. district court must give EEOC.not
less than 30 days' notice in writing of their intent to file such
an action. Such notice must be filed within 180 days of the
occurrence of the alleged unlawful practice.
Part 1614 provides that a complainant exhausts administrative
remedies under the ADEA either (1) 180 days after filing a
complaint if the agency has not issued a decision and an appeal
has not been taken, (2) after a final decision by the agency, (3)
180 days after filing an appeal with the EEOC, if EEOC has not
issued a decision, or (4) after EEOC issues a decision on
appeal.
Remedies
Part 1614 leaves unchanged part 1613's standard that full relief
should be provided to an individual when discrimination is found
unless the record contains clear and convincing evidence that the
individual would also have not be~n selected everi in the absence
of discrimination.
It is important to distinguish this
.
regulation from the Supreme Court's -decision in Price Waterhouse
v. Hopkins, 109 S. Ct. 1775 (1989) which held that an employer
can avoid liability, and hence any relief, in a mixed motive case
upon showing by a preponderance of the evidence that the same
determination would have been made even abseat discrimination.
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Part 1614 provides that interest on back pay may be awarded to
federal applicants or employees who prevail in discrimination
claims, and that while a,ttorney's fees awards provisions shall
apply to allegations of discrimination or retaliation prohibited
by Title VII ,and the Rehabilitation Act, they do not apply under
ADEA. The Civil Rights Act of 1991 a~ends Title VII's § 717 to
provide for the payment of interest on back pay; this waiver of
sovereign immunity authorizes EEOC to award interest in Title yII
and Rehabilitation Act cases.
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Friday
. April 10,1992
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. E 'qua Igo",ment'.
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,ppPQrtunity':.r . ,........
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'·'·.~CommissiO·r1·',
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. 29CFR .Part 1614.
Federal Sector 'Equal Employment: •.
Opportu~ltY; Rule~i.ndPrPpose~ Rule
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�to the Commission except where it is
20 days ,of receipt and of the right to file . the CommissiOiiahould concur iIi the '
alleged that § 1614..107(d}has bee.ti .
a civil action as proVided at ,'" . <.' 'MSPB'&deciaion.by filirig'any;suCh:
applied,to anon-mbcedc8.se matter.
l1614.310{a). "
"" . . . a r g u m e n t with the Office olFedei'al'~ ,
(iiI Where the agencY or the M S P B '
.
,,"
Operations and serVing a copy On'the
'adminis,!rative judge questions the,,'
§ 1814.303 .PdtIoM to the EEOC ,from.
petitioner within,lS days of receipt by
MSPB's Juri.sdiction over the. appe"al on 'compIaIntL·.'· "
lippe8Iaand the Commission.
•
MSP8 decIafons on mlx8d Case
.'. '."
th
e same matter~the agency shall hold
.(a)' Who maY'fi1e.lndiVi:dual~ who'
.. (b) The 'Commission shall determiJ;1e
the mixedeaBe Coniplaint In abey8.nce
.
whether to consider the decisianofthe
until the MSPB's adnibifs.·trativ.e fudge
.
have received a final decision from t h e ·
,
..' "
.
'MSPB'
mix d .' . . I
th
MSPBwi. thin SO days of receipt of the .
rules on,thejurisdictionalJllsue. notify,
on a,
,e ~se.appeaoron e
petition by. the COimnissioit'B Pfl'iCe of
the complainant that it. is doing' 80, and
appeal of a final decision on. Ii.inl?red, .~.'':'.lI ~t 'Opera"ti'ous', A..determlna..-'.n of.
' WU1
case co.mplaint un.der SCFR,.no,...... 1201.., .
.l't:Ut:n:U
uu
Instruct L""";' or' h..... to·b..t..·.., 01.._ " . . . . . '
"'.
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t&eCoiriinissfoti ricit to consider the,' •.
allegation of discrimfnatiOn to the:
subpart E and 5 U.S.c. 17()2; may petition decisiOn shall nofOe u'sed aseVtdence .
attention of the MSPB. DurIng
EEOC to consider that decision. The
with respect tOailytssue of , .'
.
period of time,
timetimftations for
EEOC ~not accept appeals from
disCriinination In any judicl8J .
processing orming ander'tbie part will
MSPB dismissals without prejudice~
proceeding concemfug that illsue.
be toDed. An agency decision to hold a
(b) Method offiling. Filing shall b e ·
. ..
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mixed case cO!Dplalnt fri abeyance Is not made by certified mail. reh111uecelpt .
. (c) If the Commission mrikes&, ..... .
appealable to EEoc. H the MSPB's
.
requested. to the Office of Federal .
detel1llination. tOcOnsidf!I thedeqision,.
the Commission shan ~ilhin 00 days of
administrative judge finds that MSPB '. Operations. EqUal Employniimt
has jurisdiction 9ftr die matter, the
Opportunity Commiasion,P.o.BoX .
the date of n.determinatlon.a;msider ,
ageoCyshan diamisa the nifxedCase
19848. WashiDgton. DC 20036.
theentlre recordoftheproceedings:cif'
complaint puraU8Dtkt f 18t4.t01(d}. and ,.' . (clTime to fIle. A petitl.on must be
.eth.Vl·~d· SPBe'n,H.<>_
M
·~.redconordthebe~U:.Lo_f ~~'aa .'
advise the complairiant oftherigtittG' . filed With the CommiSsiOn 'either Within .
.~.J
1....... we..IXH;UU
petitioA,theEEQC to,reYfeWtheMSPB's 30 dayiof receipt c:if thefin81 decision 'af supplemented in,$:cordancew1lh,.. .
fiDaldeCiaioDontbedJaCihDfnatfori: ,:;: . the MSPB orwitlili:l30 dayaofWben;the . para8raph(d]o(f.hi8aection.;..:d~,··
this
an
.'
issue~ IUhe MSPIrsadnUriletr8tfVe fad8e .decision.of a MSPB field office becomes . '.: --=.... ~~i~~.· in.,,·. .· .•·. the.:.'·;:.d.:. ,
e,:. .,.0.,.;.,sion..of:t1ie,; ....... .
.>,
. . .·., .'....,
finds tbal MSPB doetfilOt Mye:,'",'.:'';·· .' final'. < .. _. "~ ..;:-,:.,., '>'.'
".
-,
Juriad1ctiODover"~,matter".tJ;teagenq
, '{d)S8ivke. Thepeti~Jor:~w,
""::(2}_'__ De-fB~tiDa.,-decisioa.that':::· '
shaD recommence~9.f.the . . . . muSt be aerved upon aUlndividual& aud diff~&omtbe;~ofthe: MSPB to
mixedcasecomplaiDta88nmHnlxed·;···· .·partieaontheMSPB'8servtceli&t·hy·.·;.·. ·the·extentthaubeCommlsaiolifinda·.',·
case EBO
:<:.:,' . certifi¥maU4?'l or. be(Orethe filing with • that. a :matter of
<~. ~.\,,~:
. (dl~for'~~jnii .. the CoInmission.and,theClerkoC the,. ·~j(ilThe ~ofthe'MsPB:~,' (i:,'; ; .
:. . .
complaint. ,,:,'.:,'.
a.
oflJlbredcose.comp/oilJtti.l.Wbeiia'·'-, ,.
Jaw;'
MSPB.:112OVermontAve.cNW';;'(·cOniJtihit~_~IDCerpr'etatioDOf··
cOmplaiilantelecta to~iDitlaDy(: Waihington.DC 20419. and the ' .
anyprOvision:of.aUyl8W~ tule.~ ...:,
Under this partratherth8n ·wttbthe.· .-.... petitioner must certifyas.to the date aitd . J'egulatioo. «.POIiCY direC:t:iVe referred·to
MSPB:. the pnlceduresliet forth In '~ .. ; : method of aervice. ....
, .," ' . In' Su.s.C.1702fa}(1)(B): Or :;. ~~ .< ~
subpart.A shaD. ~ the proces-'of '.
...
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....._ ~_..z:..z • . hing" .::.....:.L· .
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11'81" _. ' .........-... o·t·i....tKt.... .
......;.:.-:..... ......_...
. .(ti)..un: uc:t,; on." mvo., . ".tIUI":", :
.....
'
...........
.
the mixed da88eomPilUlltWith t h e '
f()llowing~cept:ionc';~..~:,,·.
, ; , f a } Fd,rm.PetltioDamuat be WrittenOf' provisioo.ia not auppc:irled'W!,he'.•. '
. (ll At the time the8gency adviseaa . typed. bUt mayuse:llI!.yf0rm.8tincltiding eviden.c;;e.1n .thereoordas)iwhole, •.• ,. ,
complainant of the ac:C;epta.nCe ofa ..... '.
a simple letter forinaLPetitionera are .' '. (d) Iri·considering.anydecisji:m:o(the .
mixedcaaecomplaJ.nt;·1ti.BhaIlalsO>,:i~:'
encouraged louSe EEOC;Form
MSPB. the Commission. pursuant toS:'
advise.tbecomplaiitaIit:that:;.::,'-,,;,:,;"',· . Notice Of Appesl/PetitfOn.." ,.' .... ,.' .." . :. U.S~C. 7702(b)(4~.may·~thecasetO:,·
. (i) If a final, decision is,:DOt iaaUed :
(b') Contents. PetitiOnsmu.atcon.tain ..:: the .MSPB .fo...the.taIdng of additional .
wit.hhl 120 dayaofthedate,offilingof.: ··thefollowil:Jg; ' .. '. '. .
. e'\lidence.withiDaucb period as perinits>
the mixed ca,8e conlplaint, the, " . "',' .' ·(1) Thena.m.e andaddre88 of the
.' '.. the Commissiori to ,make adeciakm:' , ..
complainant may'appeal.the matter to" '. petitioner.
.'
' : within the 6C:kiay period presCribed or .
the MSPB at anytime th~ as . , ( 2 ) T h e name aild address of the .
provide on its awnJor thetaldng of
sP~~ at 5 ~i2ol~aJ or maY
petitioner's representative,if any;
additional evid.eIwe to the extent the '
file a.avUaction a& speci6edat. ".' .',
(3) A statement of the ieasansWhy
Commission ccmsiderait necesaaryto
§ 1614.310(g),;· b~'llcit both;. and, •... " .'
the decision of the MSPBis aUeged to beSupplemenlthe .record.
.
.' . {illIf the complainSntis dissatisfied.
incotTect;.1n whole or in part only With
(e 1 Where; the BEOC has differed With
with the agency's final decision on the.
regard' to issues of discriminatioJibased .thedeciision of the MSPBunder .';;:
mixedcasecompIain~thecomp1aiD8nt·· on race, color. religion. sex. national" '
,§ 1614.305(c}{2.). the Commission shaD
may appeal the matter to. the MSPB (not origin. age or handicap; .' '
.
refer the matter to the MSPB.
EEOC) within 20 daysof' reCeiPt of the ' ( 4 ) A copy of the decision iSsued by
.-', .
agency's final decision; '. . : . , ',' theMSPB; a n d '
'~~4:.304 Refemdo' cesetoSpeclal ,
(2) upOn completion of. the .
(5}The signature of the petitioner-or'
,,' '
investigation. the notiC¢.provided the ·'representative. if a n y . ' ;',." ".
' ..,If the MSPBreaffirnisits decision .
complainantinaccoroancewith:.· " ..
' . , ....
"
under,S CF.R 120L162(a)(2}With or ..
§·1614.108(f)winad~iHhe cOmP1ainarit§ 1614.305 . (;c)nalcferatlcm·procedureL.
,WithoutmodificatioD;;,themaUetshallbe
that a final decision willbe iSsued "
'". .',(a}Once a petitioniafilecL;the:. , . .•.., immediirtelycertifieClto the Special' ,;": ..
withiir45 days :Wi~out ~;he~;8.ii~~1 :.Cominission will e~itamJ:':::::'.<'-"': Panefestablished;pUrilWllitto1S;USC,
m
,.(31:At ,the~~e.;~~~.~e-ageI!cY"iiisuei~.:.~terminewhe~r, :tPeCo~s~Ii~Ul··., ,·1702{d).;liponCertificatiori;;the Board 6:;' "
.its final:d~,cilii,~:!ln}\'~Qd. C8,1i~.'.<:,;,: ::~: .,co~r.Ut~ 4ecisirui>(t[;tIle';MsPB~ An;:;, " sball.,wi~;fiV~·day8;(~~:l:;lni.I:;
com'pl~t~tll,~' age,~~~~'~clyi~tlie,;.:,..;./.,agen~ may;opp~8e:'~plltition.'~ither, .i}\:.Saturda~Sund!iY~:~federal.~~<::Y;':l;
.. crimplain~nt'oftlie:rigllr.~'Jippealthii ..·~; ",:oIi.the ~sthat·the;~ioPshould:;;holidaY8~transmi~tothe'cnainDan;ot~,.C,:
matterlotheMSPB {not ·EEOCJ·:Within~,·.·;··. no(ccmsider.theMSPR'sdecisiori .or: that .·the.SpeCialPaDeland to·the·Cbaim1aii .,~ ;
,
.
" , , : . 'r··-'
..
,.,
,-.
p
'
"
.
•
•
II
.
1
!
�\
;
-
dedisionfor which'reconsideration was
sought
.> C,{"<i:i.; ',;'
. §;1614:~~8<:~i.c#6i~~II:.r~~~',
Dlscrimh'laUon'ln Employment 'Actilnd
.,
.
completion ~f a r~qi:iir,edprobati~itary or
include the following elements in'
appropriate -eircUIliStan..:.es.;,,, .
trial period,'.:',.', ..,:.,,"" ,.: : , :
, (1) Notification to all employees of the .. (iii) lfthe offer QfemPloymentis ...
agency in the affected facility of their
.declmed. tile agency s.haJJ awa,rothe
,Re::~~~!zt~~ifo'hi~:ffi'~'~'. .. ~p'il~:typ:~:f[i!Sc~~:at~antf~uned' ~d~~:~:~o~t~ea~~a~~e~~~t~ck pay 5
eomputed in. them,anne,.·r,p·r.escribedby
"'di 'd' , I'" ". '1' " '..
h . h'
-'
,c.·.·
. ,,'
m .Vl ua, c.0lllP ~m~ 1iD:.~gent W o. as
filed a' c'::lalis'co~i>Ialiif·or8claiJ:i:l.ant
·" or ,
w h 0 has fll d a'cI8un r" tild'IVl"d ua1 .
Ie
relief pUrsuant to a class'6oinplafut is '. '
authoriZ'~d'wlder title VICtheADEA'
. 'and th~.I!~ha~UitatioA.l,\ic~to'file;aci~il
action. m:a:n appropriateUriited States.
DismctC!oUrt: " . .;;; .~\ - '.~ .~ ," .,'
,' (a) Withiri 90 days 'Of receiplofthe' "
·'''·'
.
"d
. ass
flm a1 deClsloIi on.an in ivi d"ua I 'orcI' .
complain:tifno appealhasoeenfUed;<
(blAfter181J'daysfroDithe dateoL'
filing an ,individual orchissi::omplaintif
an appeal has not been medand a final
decision has not,been'issued:' "
(i::) Withiii90 days o(receiptofthe
Commission's fimil decision on an "
.... .:" r . " , , ; ' ,
appeal; .or'
" (d)A,(te.r 180 days f'r9m ~e'dat~of, _
.willnotrer.ur: ," .,. ".
(2) Commitment that corrective.'
,curative or preventi:ve:actionWillbe ' ,
t k
d
d,"
.ilia:~~[~~~!:~ili~l~~~in:il;~ure .
'. those found will not recUr:: .
(3) An unconditional offer to each
' identified victim of discrimination.of'
placement in the position the person
would have ocCupied .but for the ,.
. discrimination suffered by,that person.
or a substantially equivalent position;
(4) Payment to each identified victim
of di.scrimination ona make whole basis
for any loss of earnings the person may
·have suffered as a resultof the '.. ,
discrimination: and .
(5) CoJ,llIDitmerit.thai the agency shall
cease, frOni ~ngagmg i:r!'tIle I!Pl;lcific ,....
filing,~ appeill ~th.ili~'c.oiiUiiissioriif unlaWfulemploytnent practice found in
thenj.~a8:b.e~~no:~~1,d~E!~i?~.b.Ytlie.! the case.,., .;, ,,' C" ,<i.. ~ L' ','
omnns:..ilon.;·,-;<· "':,j:";l~: ..... '.'
.' (b) !f,.e!ie!fort:!irapplic.ant, (~l(i) .,
,"
....
,Whenanagency. ortbe Commission;"
C
..•
~
/.
,
'j
,(3) BaC:kpayu:r.derthi~,parasmph(b)
:s§e·'.~c6ti~:0:n·;m,091;.· P6'-,:I(b:~C:)'O'~f:,th~e~.on:'F~..~•'.~.~:.1;.:ib·:.,: or.,~ .';~.,d:..ecA ..l',r.:.'...•. ~. ~~:~!~t=:te~r;~l~tk~~t ~:q~~;:m:tt:a~~:i,~x~~~e~~
age?fY~li~p~~~J~e:ii~p.l!Clint.tIlt1"':~i;~ a date~arli~htll@.:~9~ye#rS:pri()r)~.the
~
<~
CFR 550.895; from the date be or she
w.ouldha."va be,en a.ppoint,ed un.til.the
date tlte offerwiui declined,subjectto
the limitation of.paragraph (b)(3) ofthis
' section:'Ifltereslon back pay shall ,be
include~in,tlie back pay computation.
The agency shall infonn the applicant. in
its Offer of employment. of the right to
this award in the event the offer is
.
declined.' .
... ;,'
(2) WlI«;'p an agency. or the "
.
Commislllon. finds that discrimination
existed at the time the applicant was
considered for employment but also
fmds by clear and convincingel;idence
that the applicant would not have been
hired even absent discdminatIon. the
agency .shall neve~ele8stake all steps
necessary to elliriinate the' ,.,' "
, ~~~::t~:~J.~.racti' c.~,~~1ensure., it
..
'.'
Wl' U1 .
•
.'
,
(.
c
.:
.
'StandardS
.. 'YA,tt.A.29.'1.1..8 ~,C;,'2i6.:.(b,)r'9fi,I.e a '.' PPSI,tio~,tliattlJe. applic~tw;ould have:.
..
civil aCtiori\!n'a'cOtrit(,i.fJQQhip~tent:;; ':? . ,ocC\1piedioseiit'cijacrimiii'ation or: if.·:::
. iurisdictioihVitliiiftWo'ears
if the
. justif{edby
c~umstances;
violation iSWillftiJ.; tfue~, '~ars:Of the"substan'tiallyequivalent:position unless
date 'of the 'illleged<Viola@ki of tJieEqti~l clear and 'con'vin9mg'eVidence iIidicates
Pay Act regardlEiss"'of wIiEitHer'be ~i'sbe' thatth.e applii::ant woiJld not have been
pursued anYiulmlniStrativEFcoDii:!laint·'. .. selected even absenUhedisCriIDination.
proeessing;:Reeoii'ery' ofll'i!.Ck wages is . We' offer~ballbe,ma(ie'fu :wntlJ.lg.The .
limited to 1;"/0' years pnor ).he date of '. ingividualshaU hs'Ve15' days rrom..
filingsili~·or to three years if ilie .... .' receipt of.the offer within 'which to , ' .:
violati.'oiI.is:d.eemed,···.:n..:'t·.liq·hldllt~d'; . iifcep~9~:d~cliD:e~llie.riffer::.l<'aillifeto ...••
W.LLU.....
.
'th"" t t " 'thin
.,..
damages. iri~iui e'q'lui.hiinoUilt'may also
.accept. e Oller. Wi .• .the lS-day period
'II b
'd d d' I '
f th
be awardecLThefm..... 'f lieo. m,'p'laint or WI 'unl' '. th" • di' 'd' ination.o e·
'UU'lS
ff eeons) ere a ec l' , . , h
ap'peal under this part'sha"lln''ot" fo"ll the' ,. 0 er.
ess e m . 'VI ua can S ow .
..
..
th at circumstances beyond}iii! orlier. ,
timefor filing a civil action;' ,;', .'
.
control prevented a response within the
§ 1614.410 Effect offltln9a~lac:U~ . time limit. . . . . '..
'.
. (ii) If the:offer is accepted•. : .'
l"ilinga civil action und~r §1614:40s:
or §1614.409 shall tE!I.infuate i < · .....
appointments hall be retroa~tiveto.the
CommissioIi.prOces~irig:of:the ippeaL it date the 8pplicanrwoUld have been
private suit ismed su.bse.·'.que.nt. to lli.e .
hii-e.d: Backpay;compu.tedJn,~e ,
'b d'b' 'CFR . .
.
. . ..,.
'
filing ciCan appeal. the'paruesaie .
, manner prescti e '. y5. 550.805;
requested to notify the Com'mission in.
shall be awardedfromthedatet1lEi.·
'.
" ... , .
individual woiJld have entered on duty
writing, .
until the date the·indivi.<iual actually ' .
enters em duty unless.dear and .
Subpart E-Remedles 8r'l(1 .
convincing evidence indicates that the
Enfor~ment
.
applicanlwouldnot have beenseil~cted
§ 1614.501·
even absent discrimilla tion. Interest on .
back pay shall be included in the hack .'
. (a) when an agency. or the " .
pay computati9nwheresoverei8ll:'"
Commission/in an'individual'caseof:
discri~ation..findsthatari··applicant· •.. immunity has been waived.' The: ::' :.
or ~ employee .hasbeen·disciimfuated:
'. against.::~e>agency8ilall;pi-OVi~efidl'\, ': ..'
relief•.8s;cxplai!led!,n aPI!endiX,Apt G'<) this,perio'd for all purp08es~ excepi'for'",
part:1613.of:this' diapter;'whJch 'shall:;;:: meeting' service requirements for' .;; •.; >''':
or.
to
o,
Remedlesandrellef.
the
date9nwlUql.,t.h~~.~omplamt .was. " ',';, ,
.'
initially. p.I.eo bY.".Jh.'eappUcant. : ." . . . :'.'
,
a · .'.
_. (c) ReliellorQriemp/oyee.wp'enan •
agency. or the Commission•.finds.that an
eniployee of··the agency,¥as " .';.
.
discrimin.ated against;, th~agencyshall
prOviderelief;·,wJti~ shaij,mc1ude; but
need not peJimitedJo. one: or more. of
the ro!lo~action.s:· ':; .',~";; '.; ;,". ','.
_ (1) NondisCriminatoryp18cement; with
back pay cOmputed inthElinarin:er .
prescribed by 5 CFR 550.8!)5,unless
clear .and convincmg'evidence
contained mthe record demonstrates
.
. .
.thatthe persoruiel action would have
been taken even absent the'"
discrimination, Interest on'back pay·
shall beincl'udedintheback pay .
eomputatioriwheresove~i8n immunity.·
hasbe~n.waived;:Theback pay liability .
under title VII (irthe Rehabilitatiori Act
.
is limited to two years prior to the date
the discrimination' complaint was filed,
(2) If clear and'convincing'evidence .
iildicates that. although discrimination .
existed at the tiJne'the'personnel action
was taken; the personnel action would
have been taken eve'n a bsen!' .' .. : •.
discri:ri1inaJ.ion.· th~:agency,shall ..
nevertheless elirWilat~'i:lIiy.'·· .': •
discrimimlt~ij pfacti~eand 'ensu.reJ t .
:e~::~,·~~~~:~~~~:!~~~~~~~:·~~~~tt!~c~frit~J~~~h·~~~~i~t~i"
.
perSormef~di6ri'.~ri(h;;~'forlitioli oftht{'
empioye~:'):' ,'.",,';".''- ", ' "Y,."· " ':' . . ,
�(b) An agent may appeaJ. the agency , ' . 1614.403 H~ to,appeal,
and 1614.410: The decision ~hanb~:
decision accepting or dismissing aD or a\~a) ~.e COmpJllinan~ a~~l1t. 8ti-:vant
based C)n the p~onderanCe.o(the:. "
'or mdiVldual classc1amtant (beremafter evidence; Ifthe decislon'conlamsa";-' .,•.
porti9n of,a,.c.blsS.CO_IllP.I.aiIlt. or, a final
decision 'ana class complaint; icl8.88 ' . complairiaiit)mustfilean:appeal With
'fi.nding' of diSclirDiriatiOfi;approp:ria:t~:""
the Director. Office of Federal , ; ,
.member may appeal a flnaldeclsioncin
remedy(ies) 8h~ be jn$deda,nd. ..•.••
a claim:forlniliViduaJ. relief. under Ii'
. perations, Equal Employment ',.:.".:
O
where appropriatt(th.eenHtleIDeiitio. ,
OpportnnityCominissio~ at P;O. Box .
interestaitomey's fees orcostSshaU
chiss cOmplaint and bOth may appe81 a
final decision on a petition pursuant to' . 19848,·Washington. DC 20036. or by'
indicated. The deasionshall renect the
.. _
personal delivery or facsimile. The
date of its issuance.infoi:nithe··, .• ,'.
§ 1614.204(g)(4). . . . . .
·gn'.ev.an--t.may,·ap·p'eal.·.·the· .~.::...:l.,
complairiantshould uS,e EEOC,Fonn 513.' complainant ot~s o:rherorher'~vil,: . ,~
" (c) A
· 'decision of the agenCY. the iirbi;::;;:or Notice'of'Appeal/petitioil;'iind shotiId
action rights,
befranil1ilittea'to'th'e"
th.e Feder,al La.'.bar. ReIa,..tionsAuthorily,
indicate what he 'or she is. appealing.
complainant and. the ~cy.by: certified
(b) The compjairiant shallfumish emaiL retunire~iptrequested;-:.':';-:-,
copy of the appeal, to the agency's REO
. (b) A deasioo. issued undel- paragi:'aph
· (FLRAJon the'griEiv'ance when an issue
.. of employment discrimination was ..
Director (or whomever i's ...l...m~. ated by
.
~'-&.
's
(a) 0 f thi section is final within the
raise d .in.a negotiat ed grie.vance
.
the agen.... in the disIniSsal or decision)
f
'
'ts sucb" UlSUes to be at the.same time that he or she files the
-J
meaning 0 § 1614.408 unless: ...
prace dure th aperml
t
..
'A .
unci
(1)' Either ,..... ',, files a timel,y requ'
......n.
ra iBed '. gnevantinay not appeaI ' . er appeal with the Commission. In or
this part. hqwever•.when the matter ."
attached to the appeal to the ~
for reconsideration pursuantto-" - '
- ed'
.
§ 1614A07; or
."".I::
.'
in'"allY t'8 i s m the negaliated
lti
Commission. thecoinjllainant must
certifythe~te and method by which
(2) The Commission on its 'Own motion
grievance procedure is still origoing in
reconsiders the case: .
thatprocess.is in arbitratioD..is before
service.was madeontheagency.·
' . -'.,.
(el If a complalnantdoes not file an
the FLRA. is appealable to the MSPB or
§ 1614.406 TIme limits.; [Reserved}
if 5 U;S.C.7121(cil is inapplicable to the· appealwitbinthe time limits of this
. .- -'
. subpart. the appeal will be untimely-and § 1614.407. Reconsideration... ,; '. .
involved agency~ .' .
. dd) ,A'QlmpIainaD.(agent ~ individWil shall be dismissed by the Comniission.
(a) Wi~ a ~ble ~e~~f' •.
class claimant mayappe8} to the ,-:.::~:,.. (d) Anl~t~~lmt or brief in Support time~. the Commission may.:in its', ...' ' .
.CoDlnrlssion 'an: agency's alleged
of the appeal must be submitted to the . . discretion;;rec:orisider 8ily decision Of .. ,'
Director, Office ofFederiil Operations.
noncampliance with settlement'"
the Commissiori isSued under::;'".' .
agreement or final decision in:' ,
and to' the aaeney:wjthiIl30. days of . , . U614.405(a} notwithstaDding'BiIy other
.' accordance with'§;l61i.5Of~::,';:· .'. ; .,.filingtl1!i1~p~.followirigrciceiptof
'. provisionsoCthfs part/':'!,- ."'-·"·'>:'i.
.
· §
'i:~:c·l".·;;'·i>. ~r.'-i ;:,:.:' ..... :- ,~e-appe:L~~=fgmu~of"
(b) Apartymayrequ~t . . . . , '.
be
and
-est
a
.0," . .'
:c:O~k:~:!~~~~~.,::;L;)'· -·Fed~eQPerati~·wil1~u:.~ . . ~.
161·,~0[ar.lan.,p'rot~.eclsiOri..t..: .."~,.,
. ·"th!.SSu
reunCOD
' .siderS,·
..t'
su
.... :'(;jExce~'tf;'~-~'~~' .. complamtfiJ.e,frOm,the&geney~The·'·· der ..........
any di8miss~1 ora cOIitpJaint ~a
. ageniy~~:8u~nliit;he comph¥.~e :
'==t!: ==::ed=i~o~
y
YIUl:U...
lOU
•
and ar: agency: statemeut or ~ m ,
.or Witllin 20 days of. receipt ofap~ther
· portion of a complaint or any finaL
or•
party's timely requestfor.- .,'; ;; ;:<;: '
opposItion loth!! appeal ~ th¢
· decision maybe appealed to the . .
Commission within 30 days of the .. ,-'. -; Office ofFe?~ Operation~
30
reconsideration. Suc1uequest."along
complaiiiant's receipt of the dismissal or. days of receipt of.theC?oIDIDlsslor: 8.:'
with any intPROrting 8tatenien~ ~h,riet..
.
fiital decision.' Any grieVance decision
request for .the. lamt fi}e. which has . shaD be submitted to the Officeo[. .
may be appealed within 30 days of . .
been mad:e.by.
.ed~aiL. A copy of . Review and Appeals and to.all parties .
· reCeipt of a decfsionreferrect to in .•" .; ...
the agency II statem~t ()~.brief must be
withprciof of8uch·.submissioii.AII other.,
§1614.401(c}..lIithe case ofclass '
8.erv~d pn the ~mpl~tat the'same; parties sh~U have 20 days frOiIqhe date..
· co~~tS~ any final ';deCision received
time. .~: .
,::,~.. :. " :".
'... .
of selvice in which to submit aU :other:
parties, with proof of submissioIl, any
by an agent petitioner or an individual . § 1614.404 .... Appellate prOCedure.
claimant may be appealed to the
. (a) On behalf of. the Commission. the
statement or brief in oppOsition .to the
.' .
Commission Within 30 days of its'
Office of FederalOperations shall .
request.
.
receipt. Where a complainant has
, review the complaint file and aJ.l written
(c) 'The request or the statement or
statements and briefs from either party. brief in support of ~e requestshall
notified the EEO Director ofalleged '.
· noncompliance With a settlement
The Commission mayilupplement·the
. contain arguments or evidence which
.
" agreement in accordance with
record by -an exchange of leiters or.
tend to establish that:
§ 1614.504,·thecomplalnant may file an
memoranda. investigatiOn. remand to..
(1) New and material evidence is
appeal as days after service of the
the agency' or otherprocedure8~
available that was not readily available
allegations of noncompliance. but must
(b) If the Office of Federal Operations when the previous decision was issued;
.
file an appeal within 30 days of receipt . requests information from 'one or both of or
of an agency's determination.'
._
the parties to supplement the recOrd,
(2) Thepr~ous decision involved an
.
each party providing infQnnation shall
erroneous m'terpretation of law.
. (b) If the compI'
alDant IS represente d
a cop"y of the information10 ~e
by an attorney of record. then the 3O-day. send
'
regulation or material fact. 'or "
' . . misapplication of established policy::or
· time period provided in paragraph (a) of other party: '.'
this sectIon within which to appeal shall § 1614.405' Declsfons on appeals. '
(3} The decision is of such exceptional
. ' (a) The Office:ofFedeial ()pei:ations,
nature as to have substantial
· be 'calculatedfrom' the receipt of the.
required document bytheattomey,ln' '. on behalf ofthe COmmissioJ'4 shall issUe precedential implications." _ " .
a written ,decisionsettingfo$iJs:<>' ;<
(d) A decision on a' req~est f.:It"::·, '.: "
, all other instances, the time within j:,
reconsi~eratioi1 by e,ither.Pim.y:,is'r~al' ,
, whicll !(Japp~811!lllbecalcUIated<from, reasons·forthedeciSio~-rhe:';«:'F:;-.
, "the receipt'Of the req~d docui:!le.n~by;.-, CC-1irimissioI1~~h~l!:disri1i8~9aP1?i!aJir~';'< and there is'no r&ther rtghtJ:iy either '".
.•. the: complaill~nt. ,.": .'. ".. .'..': ~ ;·;!..c, ~ .• :,.'.; accordanCe'with §§.,iSl'U07; 1614:403{cY partY to'request TecOnsideratfon-of"the
'.
.'
,',.:
.
J?n:ct
¥?fh!n
'.'
'.
,"
'~
�.... 1Z660
'. Federal Registet. /VoL-51. No~·JlQ /FridaY"Aprl116.·1002/ Rulesand,Regmatioris
(4} Expunction froJll:the 83ency's
aw8.rded tha&om~tshanb~:.;,-:. 1161.4i.!iUi:QJmpfIaac:ewHb~~ .......
records of anyitCIverse materials."
determined by~~b~~itt&e;> . ' ~m'fl8I()~ ~eClslona.~ .. , '.' ..
relatmg to the discriminatory' .
com~t. the cOmplainant.'il'
'"
.(alReliefo~djnarUJJll deCision
employment practice., ':. .
.....
re,presenfatNeandthe
Such : . onappw to:'tb.e C~·is..' .:
· (5) Fnll opporlunity~G particlpa:te in
agreement sballdmmediatdy:becreduced ~mand'aforyand t:lii'idiriioo. t&e~..
the employee benefitdemed (e.g.,.· .'
to. writiDg.. .
' : : ".'
_
except a8pIovided.in i1614A05(b}.
training, preferentiahvotkassigmneIifs.
(ti) (A) If the complaiDant.. the ,"
Failure to implement ordered relief shall
overtime scbeduHrig}. ' c " ·
representative and the agimcy ClDJIlOt .
be snb~ to fudil:ia.l erifon::ement as
(d)The agency has the burden ot
.' reach an B8J:eementan ~ a.moWrt:caf . specifiediD:f.t614.503{g}..;".~ .. "
attorney'. feelr.orcostswithia20tiaysof. (bl~Otwid!sf8ndiDgp8rilgraphla}of
. proringby apreporiderance'of~ .....
evidence that dJe complaimmf has failed theagency'a receipt. oftbeverified <. >.: '"this: section.:.wlI.en.cbe. agericyrequests
·;tonntigatehis orber damages:
'
sta temeut andscc:ompW1Jiug affidavit.
.recOiisideratiOn. w'n.en the case invOlves
· (e) Attorney'" fees orcosts~l}
the agency shall issue lidec:ision .'
remoVal 6e.piU:ati~ or sUspension
Awards of attorney's fties or costs. The
detm,nining the amount of attorney's'
continuing beyond the date of tIJe
provisions of this paragraph relating to
fees or costs. cine wil:h.in 3C days m'
request for reconsideration. and when
·the award Of attorney'. fees or costs
receipt of the statement and affidavit. .
the decisiOn recommends retrGactive
shalhpplyto allegations of. '" '
The decision shall include a: notice of
reaforirtf~ the agen~shaII comply
right to.appeaJi tOi the: EEOC along with
with the deciSion onl'Y""'to tlie extent of
discrimination .~roh:ibited by Hde
and the ~ehabilita~ Act.ln a notice of EEOC Form 513. Notice of Appeal!
,the temporary or conditional resforation
fmal a~n or:~. deciawo. the: ~ or
PetititOD 811d shall iDclnde the specific .
the employee fa duty'status. in the
Commwnon. may awa.r:dthe aI;'PliCant or .; reasonsfOr' determining t1ieaniount f)f.
position recommended by the .'
emp~ee re~SODable au~ey 8 fees or . the award..
. ....•. .•..
: .:. . ....
Commission. pending theoutcome ofthe
· ~(mcl~ng expert WitnesS fees}
(B] The a.mount ofaUorftey·" fee9 shall . agericy reqtrest foriecoOsfderation.
mcurrediD:the ~.~~?f~;
.. be caIculatedin accordailc.ewith::·:; .'
(1) Sei-Vicemuieithe temporaryp( .
compllilDL,,>; : f"'" ".' f,; i' '.,>. :;'.' ' . ; . exisfulg case ,law using tlftdollowiDg'. . conditionalrestoration provisions of this
e9
(i) A ~gof~mmati<JD ral8 a .standards:Tbe sfirrting pCriirtsmtn,be
ar' a;x fblshallhe i::reditedfoWard
presumption ofenUt1ement.to an award ..'L.-' b" ··',..... '&.·~·····,··1:..J····iJJ';:.::··::
R,. ...!8'.P'"".... "f'aprouatiouaIyorLncu
.
'·· .. L~· ...···· ;',' . -.J~:
f · ... f ,." "'.',.:,.''';:.' ·'·i.,:· .
wc-num ertn IlUUlTre&80D8U1Y.·
.
wecomp eticm:o
o (iIJattoAnn.reya eerdL.r·'·t·t···:me·.v;~. Ii '8 .... '" . expended .multiplied.bya . , . . . . . . . .
. .,;.,;...;:....d,. ..r.;....~~.for:·a~'~~. e·.", .
teaaan.8:.&fe...
I
Y awa 0 a 0 .' J'. . "ee' n~
.
. "1'1:...:_ • .
. .
.
'"'6..........r
. ,:-&'......
c()stS shall be paid~Y,t.he ageIl(:y~
hourtyrate.'•
mnoun:t.D,ia~~~
inc::r:a~e,:or ~ecompletion the' '. .
'«iii} AftomeYs'Iees'are'iillowable only . red'pCed ormaeased ~~ti.on Of se~ ~~~cueer,-teJlure" if
· .. f .I.::.;Y·'· ' .... ...;Af· "......":..; ... '··r.1.;··B· ... - .. thefoHowingfactorrr.tdtfrough"~·,\",:,,, . the ComlDissionlipholdsits.:decisian
- orumservJcesom.emuerso we ar,
rdinarlly' , .. ·Of~tirCtOtii-···;·
.'. C··· .. ,-· "":"~,f": -'. :.c.":"",; ......... '
agency.
V!J.
or
,.;
.tailr
.
in
r--.-- ..
\.'"
or
,~~:~~!&t~~~i~rr~·.~,~;;~':,'~~bS~.~'~!:¥.~tttiqn;::.,:, .:B:W~1i~~~~fity~·i]';;;"
membersoft&e:Bar;e~~t that nO' .'
award isa:Ifowable for the services-of
any
of the- Federal
',·Government.',· ,:"
I
f?rlh !II thi!r p~ (elt:~}(iiJlJJ):11le.
reqtnS1te taperl'arm tI1~. lega:h~f\1l~,provid~isflWlporary PI: ~~iti01}al.
emPloyee
Co~~d~ ~~OJlee til.,
~e-and labol"req~_t'fle n.OV'~lty~d . ~~ at the same time it,reque.st& .
diffi~ty or the questiOJlS" the~ .•.. ' .reconsidera.lion,; tlia[ the,~ iL~i' .
1
I
fo!i=~~~er~~~=pt~~=~~fro=
.i~~~~~~Wd:~'~a;
a written ~plaint and after tile' . ,: .... the: case; thecust~arr fee... wheill:~rthe . request fiJr reconsider~jis ~
!!xed
!
j
'.,<
complainant has;:ootified tlJe:·~that f~.fs
~ contingenfc time
:.:
t.be 8geD.¢y.shaRpro~ ,~rellef.,. '.
he or she isrepresenledbya:n attorney. ~tatiODsImposed by:~e~t or'¢e: ..
ordered Ililfi tlJereis...1J.() ~ right to.
except thatfees allowable foti'.a
C:trCUlII8tances.',~ 8IDDnntmv~lved, and
. delaybnpTemeotatiOn of the Oldered .
reasonableperi"d~time prior to: the··
.the re~ obtame~ tlIj!expenence.. . .'
. rerrer. The: reJi.e£ shall be provided in full
notification of represen!ation for my'
reputa ~and. ability ()f the aHorney..
not IB.leithan 60 days: after- rec:eipto[ the
services performed.in. reaching. a
, the tmdeslmbility of the ~se. the natl:ll'e
. final decision uDless otherwiseixdered
dete.rmiDation to. represent the
,and ~~ ~f t!'-eprofe'tslonal .. ;.
. in the decision.
complainant. Written iubmissiona to the relati~.~ the.clie1lt" an~ the .
agency that are.~ by the
award8 ~ smnlarca!ies. Only inca.sea.
§ 1614.503· Ea'forceRleAtoUJnaI .
representative shall be deemed loofexceptional success lIl).oul~anYor
commFSsron,decl'aJonL·····
constitute n(Jtice. of representation. .. ,
. raJP~titlbrJiorlW.forCemeIiL A
these factors be used (OeM8Il.Ce;8.J). .
award computed by the.formuIa set
· (2] Amount of awards. (i) When the '.
. c .omplainanfmay petition the
agency or the Commission. awards
forth in.this paragraph (e](2J(il1(ll} ....
Commission foreDroiceffieni of a
attorney's fees OJ: costs, t h e .
(C} 'The coslS that may be awarded
decision issued Ullder the Commission's
complainant's attorney shall submit a
are those authorized by 2.8U.s.C~ 1920 to appellate jurisdiction.. The petition Shall
verified stateinent.ofcosts. and.
. . include: Fees of the reporter for all or
be submitted to the Office ofFEideral
atto~ey's fees· (hlcli.iding.expert witness any ofthesten~graphlctransCPipt
Operations. The petition shall '
fees}.asappropriat~ to the agency.
necessan1y. obWnedfotuse in the'case~ specifically seUortb thereaSOlIS that:
within 30 days of receipt of the.decisiol:l;· fees and disbursements.: folo printing;-and lead the complainant to believe that the
unless a request for reconsideration is.
wffneS8es~ and.rees: for. exempJificatio.n . agency is not complying with the .
filed. A statementofaUOrney's fees.
. alid copies. 1lecessacil.¥ Qfl.taiaed fo~ use d e c i s i o n . , .-. ,-. .
in the case. ; .. '. ,<,; ~:", .....•
(b) Compliance.
behalf of die
· shall be acc(imiparued~y' a.n~vit.
executed bY-(M·itUoi::rie.y'Of ~cord ..•.•.. ..
(iiiJWi.~ rees::~~e ~~~d~.t4 in . Comrnission;;theOffice of.Federal: ~ ..•.•
itemizing the8:ttoriiey~8Charges. fOrIegal accordaru:e,With~ PJ'oviStons, ~28, ..:" . Opera1ions;shaJttake'aJ.lnecessaiy:,. .
serVicesimd both llie;verifiei:l.8t~t, U.S.C~ 1.821~exCep;tlui~ u!awaE~sliall., . actiOI;ttoaue:rtain whetlter theagem:y: .
and the, accompaJ1ying.affidllovit shall be . be made fqrafederaIemp1O.yee.~b.oj~:". is iniplementmg·the decision of Ihe,: ":."
_made.a paItofthe. eotnplaillf file:Tbe ;". .iria duty Status. when;pta~e' ~~.a.s:; CominisBimL Hthe agency iSfotind
, amonntofattorney's fees or .COSts .fo. b.e '-'. awitnesa.,. '.
"":'.,::.) .<. .,,:.:,;;.;0:,;:; ',' ~o be-em camplialICe,wifhthe decisiOn,:: ,
':'
I
1
I
,
f.
on
..
not .
..•.
~
•.
�Federal.Register I·VoL 57, .No.70
f" .
1··F~ida:V. ·.·April: iOi.1992;'I.Rul~s,il~~:;R~g~la#~Il~",
efforts shall be ,Undertaken toobtam ,theco~plainant believ~s~tha~the .;.
voluritarily:pio~de:th~:fe'qu~~i~(f;<:'>
compliance; .' ';': . . ,., .' """ .
. agency has failed to comply Withthe :,.' information;the"agency shall adVise ,the
, ,(c) C!f1rification. On behalf oUhe ".
terms of a settlement agreement or final employe~ortlleinip,ort~~cieofth~data
Commission.. the Office ofFederal.
decision, the complainant shall notify·. '. . aridbf the ageilcts: obhgatiQri to report
Operatlonsmay,()n its own motion, or in the BEO Di.n1ctor, in Writirig; of the ,
it. If thecemployee stillr~ftises 'to:. '.. ..
response to a petition for enforcement or alleged noncompliance within 30 days 'of proVide the iruQImatiqri;-the: agency.'; "
in connection with a timely request for .. ' when the complainant knew or should· must make 'Visual identification 'and·'
·recorisideration. issue a.clarification ofa have known of the alleged , , "
inform the employee of thedata it will'
be repo'rting:'Ifan agency billieves that
· prior decision. A clarifi~60n canno~.·' noncompliance. The complainant may
request that the terms of settlement,
. informatioiJ:pr(jVidedby~employee is
change the result of Ii prio~decisionor
agreenient,bespecificalIyhnplemented,:· ina:cCri:rate.theagen~'8JlaUadVise:the .
enlarge or d,i.mitiisb the:reUef.ordered,.
but may further explaiQ. the meaning <;II: or, alternatively, that the complaint be ." employee aboutthe solelfstatistical' .
.'
reinstated for further processing from
purpose for'which the.data is being'"
intent of the prior decision:"
(d) Referral to the Commission.
the point processing ceased.'
collected, the need for accuracy, the"
agency's'recognitionof the sensitivity of.
Where the Director, Office of Federal
. (b) The agency shall resolve thEl
matter and respond to the complainant.
the information and the existence of... .
Operations, is unable t!)obtairi.', . .
procedures ~9.J;1reveiit its Unauthorized
satisfactory compliance with the fmal'
in writing. If the agency has n.ot ...'
responded to the complainant.. in .
disclosure. ff.thereafter, the employee
decision, the Directo'r shall'submit
appropriate fmdings and
...... .
. writin,g,' or if the complainant is not
declin,es to change the apparently· .
inaccu,rate self*identification; the agency'
reCommendations for enforcement to the satisfied with the agency's attempt to .'
Commission. or; as dire'6tedby the'.
resolve the matter, the complainant may must accept it. ' . ::. . ..';. .
Commission. refer the' matter tei another . appeal to the Commission for a
. . (c) The infonnationcollected under- .. '
determination as to whether. the agency paragraph.(b) of thiss~c;:tion shall be
appropriate agency.". '. ....,
(e)Commission nO,tiee to show Cause. has compUed :with the terms of the. . disclosed only-in the:fonD of .gross '; ;'.
The Commissionmsy issue a notice to.' . settlement agreement arfinal deCision.. statistlcs;'·Anjgency. shallnoLcollect,or
maintainany,inform~tionon:the ia'ee, '
the head of any federal agency. that has, .•... ThecoJ;llplainant may file such an
national.originar sexofinruVidUat;,'·:' ..... .
failed to complY: with a deCision to show ; appeal 35 days after he or she has . '.
cause.why the:reis noncomplhince; Such served the agency with the allegations
employees-t!xC(!phvhenan'automated _,
notice may.request theheiidofthe:'
' of nom::omplian.ce, but must file an
0
dataproc~!!sing systelll.is 'usedin~'.,.; :,"
agenq.or a representative toappeaI"appeal within 30 days of his or her .'
. accordance with standardslind,"i!>"
before the Comniissionor'to'resporidtO .',; l1.!ceiptofan agency's determination; " '. reqw:remeii~ presCi:ib~d·hy!the :';\;i:~ :.:::. ... .
tlie.noticejIlwri.~w.ith .a~equate:> ;'. ·..The complainanJ.mJlsl serve ac:opy of
Commissioilto:insure indiViduw privacy . . .. .
evidence of co.mpllance or; \\rith:~:;·:;·; ".- the a:ppe~d on the agen:cy and the agency arid the ~epafatiori:of'thati'iI1fdrmation\'.·:•..
compelling, reasons fornon-COinpliance. '.' may submit a response to the .. '
. 'frcmi personnel recora:l~";.;.i:';"';~~;~':':>: '.
(f) Certification to the Office ofCommission within. 30 days aheceiving
{d) EaCh system is subject to the,,' "
Special Counsel. Where appropriate and notice of the appeal..' .
. . followmg controls:' ~" , '. '.'"
'.
.
pursuaIiuotheteims ofamemorandum .'. (c) Prior to renqeringits'., , .....
. '(1) Only:those categoriesQfrace~nd '.
ofUllderstanding, the Com,missioQ may . :deterIIJ.inatioQ;llieColrunission may' ". nationalorigiriprescribed.by the,'
"
refer the matter, to the Office ()fSpecial. ' < request that paf{ies submit whilti:iver: '.' Corriniission may·hel.ised; '. . ,'( ;:::.. . .
Counsel for enforcement actio[L;.,~";'·
additional information or documentaUon.
(2) Only the spedfic.J)rOcedures for
(g) Notification to complainant,oF' .'it deems.necessary o~ may direct that.an .' tliecollection.andmaintenan¢e'ofdata' .
· completion'o/administrotive'ef/oiti;;"':' investigiltion od:iearing ori,the matter be . that'areptesCrlbedot:approvedbythe'
Where the Commission'bas'detemuiled' . conducted. If the Commission . ..... . ' Commissionriuiy he; used; , .':,;' : .
that an agency is not complying with a . determines that. the agency is not in
(3) The Commission shall review the
· prior decision. or where,an agency has
compliance and the noncompliance is
operatioriofthe agenc::y system to insure
failed or refused to. submit any:required' not attributable' to acts or conduct of the adherence.to Commission procedures
report of compliance, the COmiiiission. ". complainant, it may order such'
and requirements:. An agency may make
anexcep,tion·to·th~ 'pi:esc;ribed ......
shall notify the complainant of the right '. compliance or it may order that the
to file a civilactionforenforcementof . • complaint be. reinstated for fUrther, .
proced~es andr!,!Quii,-e'mentsonlywith .
the advance written approval of the .'
· the decision pursuant to. Title Vll,·the; : . processing from the point processing .
ADEA,.theEqual PayA<;t,or the,/ •. · '.' '., ceased. Allegations that subsequent acts C
..'
,",'
.
' Ion t
Reha bilita t' Acand t o.seek' di cial '
. JU . .
:of discriminationvioI 'settIement
ate a
. Omml!iSlOn.,. . . ". only
(e) Thilagencymayusetheda~a
review of the agency's refus,aito,
.. ' agreement shall be processed as .
in studies.and analyses which ..•...
implement the ordered relief pursuant to separate complaints under § 1614;106 or contribute 'affirmatively tciachieving the
the Administrative Procedure. Act. 5
§ 1614.204, as appropriate..rather than' objectives of ~he equal employment .
V.s.C.701 et seq.• and the mandamus'
under this section. '
opportunity program. Anageri9' shall
· statute•. 28 U.S.C.1361, or to coinmence
....,;;;,.
not estab.lish"a-qu6ta for the·'
de novo proceeding'spurs. ua.nt to the.: '
Subpart F-Matters of ,General'
.
,., .
. f
. . .
. .' . '
employmeri.t of pers.on.s.o.n. th.e basis 0
appropriat.e s.tatutes.·
.Ap p..lica.bllity,'
..
.
1
race, color, religion. sex, or nationa . ,
§ 1614.504Compllan~ wltl18etttement .,·J1614.601- EEO grriupstatlstlcs.. , .
origin ". . .' " ,., .. , ...' '.' ,
agreements. and final 'declslons.: c '»'•. , " . i',;; . (a) Each agenc)t"shall 'establish ,a ,.' .. .. ' (f) Data~n~ail«(j~ap$.: ~hall;Eli¥9.l>,e . , .
(a) Any settlement agreemimtc,:~::<· :c":':'system to collect and maintain accurate collectedbyvoluntar:y seIf- '.. .... .
· knowingly arid voluntarily agreed to by" employment information on' the :race, '.' '. identification. If an employeedciesriot ..
the parties, reac.bed at any stage of the 'national origiri, sex and handicap(s) of . V'ohmtarilyprovide,the~,equested:', ..... .
·"omplaint process, shall be bindirig on
ill! employees; .. ", ..... .' .'
•. '
infor1natiQri~the agency:shalJ'adVise the
both parties, A final decision that has
. (b) Data on race, national Qrigin and
employee ofthe illlP:()rtance'ofthe'aata'
not beimthesubject of an appealor Civil sex Shilll be collected byvoluntar:y self-· and,of the agency's obligation' to repOrt: : .
action shall, be binding on.the agency. If ·identification: If an employee does nof' it. If an emploi~ewho hasbeeri "
�Federal RegiSter
J Vol. 51;. No. 10,1 Priday.ApriL-tO. t9gz'IRwes aud RegUlationS
-
appointed pursuant to special
,
settlement reached shall beinwritiDg .
(c)Jn Cases where the representation
appointment authority for hiring
and signed by bollipart:iea:and,saalL"
of a complainant lir agency would
'individuals with haridicaps still refuses
identify ~ allegations.resolved..,
conflid with the: official or coItateral .,'
to provide, the requested informati'on.· ' .
d
.
the agency must identify the employee's § 1614.604 flUng ~ndeomputatron.QftJme.. . uties of tOO representative. the
handicapbas,ed upon the records
(alAn tUne periodSfu this part that ,Commission or the agency may; after
supporting the appointment. If any other are stated ,in terms o(days arecaIendar giving the representative an opportmiity
employee still refuses to provide the
days unlessotheJ.:WiSe stated. '
,to respond, disqualify the
requested information or provides '
(b} A docl,lIllent shall be deemed
representative.
infonnation which the agency believea
(dJ Unless the coIDptainant states
timelyjf ilis denvered ill persOn o£
.
pastmarked before theexpfratimi the otherwfse in. writing•.after· the agency .
to be inaccurate. the agency should
report the employee's handicap status
applicable ruing periOd.. or.. fn. the ,..;. .
has received written JIotice of the name; ,
as urikri:Ollm. , "
.'
absence ora fegi'ore posti:Iia.tk. if ilis.
address arid telephone number: ofa
[g) An agency shall report to the
received by mail within five days of the. representative for the complainant. aU
expira tion of the applicable filing period. official conespoooence shall be with the
Commission on employment by race.
national origin. sex and handicap in the
representative with copies to the
(c) Th.e tiin~ limits.1n this part are
'
subject to waiver,. estoppel an~ .
complainant. When the complainant
form and at such times as the
.
.'
Commission may require.
equitable tolling.. ' .' '. ':.
designates an attorney as . . . .
(d) The f,"trSf daycoUllted shan be .the.. representative, seivice of documents
§ 1614.602 Reports to the Commlsslon..
day after the eventfrom which the time
and decisions on. the ~li1praioant shall .
(a} Each agency shall report to the
period begins to run and the last day. or be made on the attorney and Dolon the
Commission information concerning pre- the period shan he included.. u:ril'ess it
complainant. and time frames far recclpt
falls on a Sattirday~Sunday or Federal
ofmaterials by the complainant shall be
complaint counseling and the status.
computed from the time oheceipt byihe
processing and disposition of complaints. holiday. in whlch case the period shall
under thlspart at such times and in such be extended {o include the next bUsiness attorney_ The complainant must serve·.
manner. as tire. CommissiOlJ'preswbes.
day.· . ,':,. '.",' : " .
..•,.....' , . . aUofficialcom!spondenceonthe ..... ;
. .
d'
'd'
'
(b}Eacb'ageneyshaH.8:d:Visethe ,".
CommiSsWn.wheneveritis: served with § 1614.605 Repre!seniatlon and' offtClat .
eSlgJlaterepresentativeof the agency.
a fecieraH:ourt eomplaintbased upon &' time.:
':..'c:'
<;.:
:;::>,,:,. : ,"
. (e} 11leCompLrinBnt sha-nat all times.
complaint that is pending on appe.alat
(a) Alany sfage in the processing of a be r~sponsfule for.proc::eed:ingwith the .
. , .. ' .'
complai:at,. inclUding the cOunseling _'"
complaint whether or DOt be or she bas.,
the Commission. (. :.,
. (c) Each.ageucy shailsubmit 8llI:IJiallystage "l614.l:os. ~cElmplamanhhaltr
designated a: represeutafive.:.·: " ;,
forlhe 1'f!vlewand approval ofthe . .
have-the rigbtto beaccomjranied.,·
(f) Wifnesse& woo Iue'rederid'
Commission, written national and. , .. ,
repres-ented"and 'advisedby-s-:""; ;,:' employees,iegard!eSsoftheittourof':"
regional equruemployme:ntoppOrtamty·", representativffofcomphiinant-sdWfee."· dut)pandreg~ofwbether11ieiare.plans of action. P1BD8 shall be, submitted
fb) H thectJmplairumt is' aD employee" •. employed bYlherespondent agency Or '.
in a format prescribed by the. .'
of the agency, be orsbe sbalBulve a: "
some otllerfederahgeric:r, snall be ina
Commission and Bhall include. but not
reasonable amourit ofofficial 'time. if
duty status when thew presence is- ,
be limited to: . , ' , otherwise andnty~ Co.
the' ,
authorized or required by Commission
(1) Provision, f~"theestabli~t of '.,. complaint and to; respoodtoageney and or agency officialS' in corm~ with a
training and education ~Ograms'" ' . EEOCreque.s.tsfOl'infonnatWn; Iffhe. "~', .' comJ)laint. ' .
....
.,., '
designed to..pruvide. m.ax:iI:ilwn., " •. " cOmplainant is an employee of the
, § 1614.6O&.,JoIntpracesslngand .
opportunity fo1' employees.to advance 80 agenq andhe'desigDates another .'. '.' . ,conaoIkIatioll°CcompIaIntL ,,:. " .
as to pecio':ID!1t ,theiI hlghest.potefitial; , employee of theageney:as: hi~ofIter
. (?lDescnption of the qualifiCations. in representative. the representative shall ' · Compaints of diSeiirim1atiori fiIed by ,
termsoftraiDingand experience Eelat.ing, have a reaSonable amount of afIJclal . ' , two· or more complaimint9cmrsisting of'.
to equal employment opportunity, of the time. if athetwise' on' duty; to'prep8Fethe substantially simiJa~ allegations of
principal andoperatillg offlcials
.
complaint. and respond to agency and . ,discrimination Or rel'ating to the same
matter,Ol" two or more complaints of'
concerned with administration of the
EEOCreques1s foJ:' informati<m. 'The
discrimination from the same
agency's equal employment opportunity _ agency is' DOt obligated to. ch8JIge work
program;. and
.' .
,.'
schednles. incur' overtime wage"",'orpay · complainant may be coilsolidated by
the agency or the Corrmiission fOt" joint '
(3) Description of the allocation of
travel expenses to facilitate theclroke'
personnel and resources proposed by .
of a specific representa live' or to allow . processing after appropriate notification
to the parties;. The date oftbe first filed
the agency to carry out its equal,·
the complainant and representa five t9
• compl:aint controls the apPlicable.' ,
employment opporbmity program.
comer. The. Complainant and
'
· time frames. nnder' subpart ,A of this part.
..
.
,representative. if employed by the
§ 1614.603 Voluntary setttement attempts. agency and otherwise in 8 pay status,
Each agency ahalf make reasonable,
sha!1 be on official time, rega~.dless of.
§ 1614.6Q7 DelegatIon of euftlorlty..
effor~s to voluntarily settie-complaints-'of' their tour of duty. when theirprea.enceis
An agency head may. defugate
.
discrimination as early as' possible in.
authori,zed or required by the agency: or . authority under this part, to one or more
and through®t, the,adniirustrative
'. !he Commis.~Q!;l duri.ng:the ~stigation. designees.
"
processing of c()mplaints. including the
infomial adlustment. or hearing. on the:
[FR Doc. 92.:.7811 Filed ~ 8.4i ~l
pre-complaint counseling stage. Any
complaint. " . . : . .
." . , . ,' BIWHG CODE e75Q...tHt .
or
prepare
....:
" :>"'
�'12663"
ii3lW(~"l~\si~~,~g~~~~m.·s:t~f~~1~i.~~:!i;~~1~:E:~t·····~=~,:;~:~~r:'~~~!Lnce
29 CFR,Part:161. ·m~de to the Office ,of EqlHil Emp~oyID.ent
;'F;~l~I{Sector~q~alE;nPIOyment
(toiIichide the performance o~ any
.' ~:fu~00m~(~)0~.95, FTS 98~. ~~=:~i~n~~~t~~~~:~~:),The
·Oppominlty:'·' .,.'
. SUPPLEMENTARY INFORMAnON:In a'
tillleliness of investigations, the
AG·E.NCy:·~qu~lEmploymimtOpportunity separate rule published elsewhere in
.. complelenessofinvestiBative files, ~he
,>
"
C;0T·~;j~si>9~;;::'··;~\:(:;?:'A· . n< . . >:" .... .. ~:S~~sf~~:if:~~~~rie.ofthe
Acno~NoticeofPr°po~ed: Rlllemakfug~ •. ~dopted fmal regWatioiuiestabUshing a
··:;~cl~tbyW~~:=?si~~c~~oan:p~:i'
.and the training pr.ovided to those
'.' sti"'~A~V:;~~·cOirimi~~i6n:~s~eks.public·n:w ~ot;npl~int process for complaints of individuals performing functions under
the process. ..
. .
. comment on requiring; as pail: of29CFR',.discnmmation filed by f?d,eral . '.
This proposal would give the
1614.108(a), published elsewhere in this' . ~mplo.yees. ~hat re~ation. re~Ul~es :: '.
'. agencle.s a?amst which a discnm!nallon Commission the authority to review the
separate part of today's issue bIthe .;
performance of agencies and take
·Federal Register! that investlgtdionsbe· . complamt. IS fue.d t~ cond.uc! a fair and
effective action against any agency that
coridiictedby a certifie.ddepartm:ent or . complet~mvestigation Wl~ 180 days.
.. agency; It hi the Cominission's intention •.... ofthe~l~ oIthe c~mplam~The .'..' .. '
demonstrat~ after an opportunity to
· to study whether certification or some
Commission is seeJ?ng pu~l~c comment
correct deficiencies that it does not·
otheroveraightprovision is necessarY. H ?n wh~th~r to reqUIre. ~ddltionall~, that process complaints expeditiously and
suc~ an oversight method is considered
mvestigations and a~ency ~rocessmg be: fairly. Standards for certificatioI). woUld·
be developed based on the timeliness
necessarY.the.Comniission will ..' . . . conduc:te? byagen~le9certified~y the.
. .'
".
and fairriess factors mentioned above
·promUlgateaflDalregulation on this
Co UllIllssl0n;.
issueililhe future.. , .
.
. One.of the major objections to the.a.l)d a process for certification would be
DA:re.s:W*!~ri'~fuineri¥il6~the
federalscctor process bas beeri the'. .
established tlu'Qugh Management- ....
",.'
."
''':1'' .
t b . .'. d'"
b t
cOnflict of interest in ba'ring agenCies'
. Directives.. In Iigh.t o.fth. e changes made.
propOSl:U,mus • e.reOOlve. on or elore ;.investigate,iliemselves Ilf'.db,e>./: ...
. . . January2;'l993~TI)e.CoririD.ission·, .... ..• responsible for making all decisions' .' .. to the' complaint process by part 1614,"
proposes to consider my comments
. throughout the fact.fin..lin" process.Th.e. the Commission seeks Comment on
~. whether Ildditionalmethods of oversight . '
received. and thereat:t~r D,l8Y a.dopt final
.
."
regulations;, ",; .:"". .:, '-:, .;.c°tllJD~nt~ c;ln.tJ:eNPRM:·8~es,ted.·the -.. are necessary;
.;
.
•
"
'
'-
*',
,;:
__
.~
'".. , ..,;:..us~:~f~dv:~rse
infe~nce ~nd.:~un,unlP'l' .~
"
-.,
.
.,. / \ .' ~:.~. ~AD~"a.;sES: Co~ents sp'o~d·b~· .• '.". ,~, ospositicin 8S methods to 'rediite the/.'·,:· .. Theeommi'ssi!)n hereby publishes this ' •
·.·. ·:• .·;.·.,:;·\t···~~~~~~;~~~~f&~?&~~i~~~ri7i~·~~r·.····>~~~::~~~~:1~~i~~~:~(Hj".;>··:····'·:'~:=~~tA:;:::~1~;=!~~a,u~~c .. ,
.• .
:.' .: .\: ()Ppoi:1.uriitY:C9nmiission.'J8O.l~ Street .' . Comlnents. At the sametitD.e the' •.•. ,
. oversight sUggested by tIcOffiment will
......•..::.. .', 'N"!f~;'.W~hingt~q. Dp 20507~ Go~~es ?f .... ,Comm,issioD.seeks public coriuneIit~n"" . be conslderedb)rthe Cominission..•
·'co~ents,8ubDUtted bYJ~e,:public WlU.. ·· other methods to reduce or elimiDatethe Comn'lenters are encouraged to explain
be~v8f1~?le.fo:l1lview a,tllie;;:{;,:' . "'reatand perceived. unfairness having any propbsed method iIi as much detail
CO,I.llJ:I11SS1Q~. s bb.r:~ry;.~~m 6!iO.2..1801L agenCjesresponsible for, !heentire faCt
'as possible~ '.. .... . ..' .'
Street;NW;; Washington.. DC between
fu:i.di ... .
. " . '. . . ,
.......,..
.
".
. .
····h c_~ f 930' . .
'd ..
ng process.
.
... LiSt ofSubjects in 29 CFR Part 1614
the~~o .• :,.Il.IIl' 8ll. 5p,~ :' .•..... ',' Th,e impetus for a certification, or any
". .
." .' F:~llfU~ER~N~F.'''''A.n~:~Act: '. oversig~t process1sthe delay that is ' . Equat:~mployriient opportunitY.
. . '. ~lc;bola~.M;lllze«·~sociateLegal".. '" coIilmoninprocessing charges Under . . GoveinmentemplOyees.
For the Commission:
· COUnsel;'Thomas J. Schlageter;; ..' \; . '. part 16l3.That delay by the agency, at
Assistant Legal Counselor Kathleen .
least in part. creates the appearance of
Oram, Senior Attomey, at (202) 663unfairness in the process.
Evan J. Kemp. Ir.. ·
. 4670. FTS,989-4670 or'IDD.(202) 663-:-... '. The Coriunissionseeks public.
Chairman.
·7026. This notice is also .available in the' comment on a proposal that.
.[FR Doc. 92-8075 Filed 4-9-92; 8:45 ami
· foUowing alternative formats: large
inves~igations be conduc~ed only by
·BIWHG .CODE675O-06-111
:><- -
of
,',:
I.. .
t
~
..
"
.
�EQUAL EMPLOYMEN}. OPPORTlJNITY complaintprot!essfot ~e\\Tl~~fued'2;::~.,:~i;~:~:im)i~rn:s for promoting equal ...' .....
COMMISSION ...' . :
' . Jederalsector JmOci.>rii.plairitifthat+,,:::~cc:"employment opportunity and the. ", ..
- ,:,::,,',:';
""-.:
.~ ~ould be I,oeated -a,t,29.,qFR p~~tt:~6~~_~>"
procedures ~or agency pr?ce88ing.O~ "
29 CFR Part .1614
("part 1614"). The exi~tiIig C6tnjJlil.in(~.
individual complaints of discriminatio~.
process, located at 29 CFR p~'i613'
.Subpart B provides additional.' .
RIN 3046-AA 11· .
("part 1613"), was creafedbY'.theCivil . 'provisions that are applicable to the"
. Sefvic~ Commission in 1972,:37:~ 2?717;: processing of particUJar types of . , .
Federai Sector EqU~IEniployment
(1972). and subseqtieritlyttaps!~q:~«l tO~:;::'i.compla\nts (i.e., MEA. ~ual Pay.Act.. .'
Opportunity
.
.
EEOC. It has been critiCizediin llie'{::'::'~;:<Rehabilitation Act, Class). Subpart C .'
AG~NCV:'Eq,uar~pioyfue~t Oppo~ity Supreme CoUrt's decision 4i·c;b:~n'f.J~r, v;'iLexplains the rel~tionship between th.e .
.
.
.
Roudebush, 425 U.S:840(1976)ias.well:;"t cEEO·process and the negotia~ed' . .
Commission.. '., . '
AcTioN:F~al rule.
.8s by U.S. General Acc_9untiDgQffic~ .'
grievance process and between theEEO
M'MAR" .·Thl's.rul.e r'ev'I'ses the way that'
"'r.'
audiheports, a report oftheASsis,tantprocessand appeals to the Merit.
su
Secretaries for Management.C:;roiipi I:\nd • Systems Protection Board. Subpart D
federal agencies and EEOC will process the House EmploymentahdH()usmg'<~describes appeals to EEOC andtheright .
administrative complaints and appeals' . SUQcoinmittee's RElPort)"0:V~~':haulmg';8;.:'·to filecivilactions Under each statute
of employment discrimination filed by.'· the Federal EEO:<::omplairlf~ci~~s.irig~;:.c:;'adirunisteredby EEOC. Sli.Ipart E,sets
federal employees arid applicants for'"
System: A New Look at Ii peiSish@,'·'··forth'EEOC's policy on remedies and . '
feder~r employuulnt. The new regulation Problem," H.R.Rep; N()~~SEc .. .' " ";relief when discrimiilation has occurred.
.Cong;; 1st Sess. (1987): !hifp, .·to>;;~'SubparlF <:ont~msmiscellaneous .
will enable quicker. more efficient
adopt part 1614 const,it;iited ~QC:~:: '. ..'.• ···.proVlsions of general applicability to
processing ofcomphi.mts and promote·
impartial, fair and early resolution of
.. response to these criUc!llcori$ehttUies,,'agency EEO programs, The ' .
....
;::omplaints.
. '. .
.
.' . EEOC received .56 cO '.~. '... 'C?~'\:.{(":;'1,::9verW-helining majority.of comments'
EFFE~VEDATE: ThIs, part Will b~Come. . proposed Pat:t 1614 during'jWm,:e#!;~~addressingthis issue supported the ; '....
o
~!:c.:,v~:;:;::~~~::~ONTACT:.f::e~~::i;~9~:~~~~~R(s~~~~~~~~~~~~~s.,ed,o~a;~~~..·i i
Nicl:J.olas M,·Inzeri; Associate LegaJ, ....'~. federal agenCies; eight were sublDltted .,4,,,,·re-comp am ".... cessmg ' .. '. .'
:::OunseL'Thomas'J~'$chIageter;·:·. ".. ."by private indiViduals; ,siX , .
. .il~· As Under Part.1613; a person ~ho.·>;'·
/\.ssistanfLegal CoUnselor Ka thlti en ·.submi~tedby civil rlght,s b . .' . .... >:ibeliev(ls he tirshe has been' retaliated,". ;.'
Jram~SemorAttOlney,:at(202j ~',.'; .'.: imdprofeisiorial assoaati~n!~,fiVe'wett!)i{~gainst or discriminate'd' aga~t on Ute •,".
W70,~989-46700rTIlD (202)66a". ;'/~;~il:?~tt~ by: !~~~r~l:~nipl~y~~~
. . asisof ra~e:color religion.~e<;:<'."':::·
'026.Tb.is.re~ation i.salso ~v.ai.labl~ ~·'Lan~~,~e~al!:~~~~mltt.e~b~~11 ~~F
, ational o~J.n;· ~e. or handicap. mu~t',' JJ.
h~foUoW1Il8aItemll.tlve formats: :iarge.,.-;,-C;ongress;',TheCPJ.lllllents ~,!¥laI
. ....... ';': fIrS~ seek counselmg under part 1614
.rint. braillE!. audio\tape·andelec.~ruc·< belo\\, in twosections; Firshtlie niajQr. 'from the alleged discriminating agency.
ileoncoJDPuter disk,.:Requests for,thi~:'.Jeature.s of the,,~eWP,art~cl.iscus,sed _, .and file a :\\'l'itteri complt:imtWith that'\. '.
egUlatl9n:man'alternative .format· '., ~~;..:al';l~ :with!h-;~j::~mmerit1llln . ~~~~~~e_I!o" a.gE!Qcy:~oposed part 1614 contained·':;' ...... .
hould'b~J,:!iade{tc{ .
t.
"'\1M it'!+: th(lco¥ents'l)qindividualllf:~ti9~,8.rj:ii;>thEl'iiame 3O-day time linlltfor contacting:'
!~f~~·Oi~.b;~~)n'ia~~~i~f;;r~imi[Z~~~~~$.~~!~t
Upt>LEMENTARY iNFORMATIoN: PursUant'>;: sIgn~dtheCi'i1I,tight1lA'?t of~;:}''::::~;{~Srion~agency,commei;1t,ers advocated :./ .:- .
) Reor8aniZationPlanNo;i'of1978j43~i),c~pli?J~,\!,~~~'~~z,,16f?(~9911~tt:J;1a.~J~\V:;.lerigth.eirlngthe time periodto.asinuc~; .
R 19807:(1978): EXecutiviit)'rder12144i;' c,·made a number bfstat1.ltory ch~Els;:- '/;:):isl80 days arguing that 30 days Wils, "
IFR 37193 (1979)andEXecUUve Order..·affecting the processing Of . ':l;\~~X-:~/~'insufficient to reflect secure advice or .
~106, 44 FR 1053 (:1,979), all'. ....;;..... B;dministrative.c~mplaints and not~cEl~ of ,realize the impactof.adiscriniinat~ry :,
lsponsibilityfor theadIirlnistratio~ arid' ,nghts ~?t agencI~s andthe~f)l~~~ll~S~OIl>, action. that. the refativelY'8h~rt ~erlOd .
If'orcementofequ<iropporturiil)i:m; :i/.:;~,a~r~9wre?,lly,these regulati?p~t9 8l:v~,x.!,as. sc~eerung out many mentonous .•.
,deral~mp~o)'Illenttpll~ .~as,p.r:eviously,,: !h~. ~()~p~am~ts. !he COlIlDll~sl~~~a~;"complamt1l and that there~ should~ea ..
!sted in the Civil SerVicieColIlDiission . mcludedm thiS finalrule those:;.;~., . '>:;;"~symmetrybetween the pnvate'sector .
. . . p~,,!-s!ons~f .the Act a~ecting:(' ':~', "-:~ume limit for filin8 a charge and t)Je > .....'.
Id the Secretary of tabor, was
ans(eI'redto the Equal-EIilployment _
a~IDlst:ative ~rocessmg anq:,·· .
. .•.••.. federal sector time limit for conta~ting a' .
pportUIlity Com.xpls!lion (EEOC). EEOC" notIfication of nghts. .
",!'- ," '<:,{, 'counselor. Most, .but not all. of the : .'. . ' .
agency co~~nters 8~estedretalI1ing .
authorized to issue'rules. regulations, M~jor Features.
the30-day hlDlt reasorung that the:
.
ders and instrUctions pursuant to title.
[l of the Civil Rights Act of1964. 42
A. Organization
. ".,
/ilXistingliberalextension provision .' .
S,C~ 2000e-16(b); the Age "
....•.
. Pan,1614 is organized differ~litly than' adequately p'rotects .the riglits of federal··
scrimination in Ernployment Act of
part 1613..Part 1613 contains separate . '., employe?sandapp~lcants~nd thata~y
67.29 U.S.C; 633a(b); the. .
.
subparts for each type of complaint; e.g.,-·:, !engtltenmg ofthe time penodwould.
. title VII complaints. mixed case<~
. mtrodu~e further delays; undermine. .' .'
:habilitation Act; oi1973. 29 U.S.C.
ta(a){l); the Fair Labor Standards Act . complaint!!, age complaints. class :;,~_. quick resoIlltiop and. result in fa;ded .. '
~7::!i ~l~~~)i~jCa~~~:if~e "'i:~fd;~:s~:s~!i::I!;:I;m8~;i~;;ri~t.·ilif~~G:~1~°!.i::~;rt.s~~?, :i}.·~ ,;~':::' ••. '..•...,".'
Iflil~ll:~~f!~~~~11!!111~j~i~1;~I~~~1~1ii~;lgi;f~;t'~~:
3J~:':fl;ct~,!~~;!~~ftil;;i,!~J~$t~~~~;f\~g~lijl';;~';; ;' •. .
�about doing so. Private employees may
agency bad issued its notice of fmal .
action; -It also required the agency. to
have totrav~l many miles or. use the
mail to file a charge .withEEOC wliile
complete.itsinvestigationand issue a:
federal employees only have to contact
notice.of fmaraction on 'acomplaint
within 180 days of its filing. Because
a counselor by telephone or often .':. .
. merely visit a counselor who is located
agendes'responsibilitiesin thel80-day
. period were limited to investigation. .
in the same work.place in order to
settlement attempts and issuance of a
comply with the time limit Moreover. a
comparison of private sector charge .
notice of fmal action, agencies were
expecteq to. complete investigations
filings and federal sector complaint
filingS in~cates that federal employees
within that time l~t. One majorreason
file complaints. a~ a rate:~etimes.
for proposing part 1614.was. to eliminate'
greater than private sector employees
the time delays'andbacklogs frequently
file charges, Further. the earliest
associated with part 1613 agency .
possible contact with a counselor aids
complaint processing by limiting agency
resolution of disputes because positions processing to 180 days and by reducing
on both sides. have not yet hardened.
. the number of decision making levels.
Therefore. we .believe a significant
Someagendes and non-agency
lengthening. of the pre-complairit period commenters doubted that agencies
is not justified. Nonetheless. some
could complete investigations within 180
potential complainantsmay.not be able. days and speculated that agencies may
to comply with. the SO-day limit for valid decide not toirivestigate. 'causing
reasons: Consequently. EEOC has' .
complainants to inundate EEOC with
appeals; 'Web.elieve.that agencies can
decided tomodify the tiJDellinitidor .
seeking coUnseling:..' .... -, .•... . complete' investigations wi.thin 180 days
and that agencies wlll have sufficien t····
Part 1614 proVide~. tha t a~employee
or applicant must generillly'eonbu:fa : . incentive to investigatecomplaints.-Tbe
cOlJ!lselor Within 45'!iaysi:l( th~::~:::: '. _. most recenHederalseclor;statistics' ' "
reporte'dby the agencies toEEQC '. .
discriminatoryeverit.l:!llt ~ls!,'requires
an agency to~ex.te~dttie.;u.me.liIni.'t for. ' . di' th t th"
. tim'" " 1 tak··
....o··uns·
.•
..
' H ...... ·.a··c· ." .e.lo··.r·..~·.·.:t:·e·n.·.· ,·w.·.·. ·-arr·.·.an··teod ' . m cate a ...e·average:. e. t. . es":C'
contac ';""'0
nil
an iridividualconiplainftoreach the;·.:
by the. ~I.nlrrlstance,s~ The ,~a8(jrisJQ(~~ proposeddisposJtion'stageunderpart..' :
extending the 45-day tiriie period are ....... 161~j.s.180 days orie.ss in:a'm~jority of:
~d~:~~;!!ra~?se~:,~e?~~f~rf:< :~!'. ~r:;:::aci:~;~~~:=J'~:::t~e
investigations will be conducted within'
the l8O-day limit.:the rebll1atio.n.relies on
the use of adverse inferences by the
Comri:J.i.ssion and its administrative
judges. and permits both parties to'
obtain findingsoffact and conclusions
of law without.a hearing. a. type of
summary disposition. for some or all .
issues in a complaint. The summary
disposition process will encourage
agencies to develop a complete .
investigation in order tci save resources.
As under part 1613. agencies will still
want to have the first opportunity to
resolve a complaint and investigation is
necessary to determine the likelihood ofsuccess and potential liability before a
settlement.offeris made. The use of
adverse itifel"etl.ce·and summary
disposition is. designed to enable the
Commission to achieve the goal that it
sought toachleve.in proposed part 1614
by providing f<>r relllands or .
supplementalinvestigationson appeal.
i.e., a method,'loassure that agencies .. '
will conduct ii complete and fair. ;.: .
investigatioD.of.comp[ilints within':the:
l8O-dayum.err8me~·As under. proposed
part 1614. the 'agenCy is required to.
I t th • ". "tig ti' "'thin"'1'80
comp e. e elD~l3s a. .pn. \\11... :. .
days Unles8 itllali'~l3curedthe~:.,,~.·:·· .
agre~uu!n\,orthe:coD.:tplllin.aIiUo 'extend
proce8siDgf~rtiplo anad.diti.onal90· '.
da~~:~~J!;l~:~~~:~;~\e~~i~:sa
iarge
Inadditioo;'prOposed part 1614 limited adjustment ~e being elimiitatedfrom'.
degree offlexibility in ~eb:ivestigation
the time spentincounselirigto 30 days
the agoency. proce~.agencies should be . of complaiiiiS.Tb.e ftgency may use a
. . " .
...
with the possibility ofan extension for
an additi.·.onal60 days ila.greed to by' • . able to complete the ,invelltigation under varitityof investigative and dispute
.
part 1614,inth.e·jiame amo:unt of time it
resolution methods to compiete"
both parties. Many agency eotriritenters' tak es. t 0 rea .' the,propose. diSpOSl on
complam'·t·p"'roc"'essmg" Wl.·.thin 180 days...
"ch
.., d
·ti
noted that counseling presented a very
importaritopportunity'toresoive.
stage under. part 1613.Thisindicates;,
The agency CaD use an' excb'arige of .
complaints'and.thatagencies with".:
that.thel8(kiay tlme fraJn'e can be met.
letters orp'osltionpapers.· ':'.'
..
formal-dispute.resolution procedures"
A nfunberof~ench~s.and some other.. interrogiitorie!l)investlgation, fact~·.: ...
needed more than 30 days to use them.
commenters. riUsed questions about or
fmding 'coriferenceoranyother method
In order to encourage andacriommodate. objected to EEqc c~~du.cting·
or catrlbiriation of metliodstl,tat wililea.d.
.reimbursablesuppJemeIltal
.. '.
to the development of a complete factual
such voluntary efforts. part 1614 now .
provides that the cOunseling period will . inve~tigations and heiuiiigs on appeal
record;::.'
,.
.
be 90 days where anageney has an' ., .... Some agencies indicat.ed thatthey
COmplainants dissatisfied with the ..
established dispute resolution procedure would not agree to sign a memorandum
agency'sdismissal of all or part of the :'.
available during counseling and the
ofunderstanding.permiiting EEOG 1«:>
complaint caniImilediately appeal from
the agency's disDiissal;andthe"
employee or applicant chooses to use it. recovel' reimbursements. and woUld
We believethatthe 8O-day extension' . oppose any effort by EEOC to collect
Commission Will establish an expedited
reimbursements. The questions and' . appeals process toirisure thatcomplaint
provision applicable in all other
processing is not unduly delayed by an
situations will accommodate voluntary . objections have ledEEOC to rev!sethe
settlement efforts whenever both parties regulation and retain the traditional'
improper dismissal. Where an appeal'
from a parti.al dismissal is filed. and the
agree to it without unduly delaying
distinction between the coinplaintand
further processing .
appellate process.t.e.;that factual
dismissalis reversed by EEOC's Office
of Federal Operatlons·(OFO). the matter'·
.
. .
development through-investigation a~d
.C. Agencyirocessing ofIndi:'idual
'. bearingwiU occur at the complaint level will be)ent back to·the agency f«;>r
Complairits .... .
'" ..' .
, .and review by EEOC will ocCur at the
completion of the .investigation. The'
time frame for completing the
As under part 1613. part 1614 requires appellate level. COmmenters uniforin1y
investigation of the accepted portion of
. anagenCYt~. admo~ledge ~ceiptof a.· sa'N the hearing process as an"
complaint and. i£iti!Jproperlyfiled.'",,;,i' appropriate method of developing a . ".
the comp'laintwill:be staye~ pendiilg a
invespg-ate it.'AS piopo~~d~:~rq614 . '. -. complete and fair record:. "
decision on the appeat;Agenciesmsy;"
eliminated the iiiforinal.adjustment and ~_" The 'final regUlation 'retains tlie-:; :'
.,but·arenotrequire(nb;'iriv~stigat~:· .
proposed (Usposition"sj;iges of ~ 1613. ' requireinent.that.investigatioI18 be .~.'., '. during this' tln1e periOd :, i, ',!:';l;';: '->c'
and postponed,the:he8ring-tO.thei.:,;. '.' :.3 completed.within'l80 day~ In'oroerlto' .' When an agency accepts's Complairit-
. andlater'determmes'thatthereare' ~... ~'
appellate stage. J:e.; unt.ill!fterthe . . .' .'. insure that completeahdfair .
,<
-
�F:ederal Regisler/VoL'57. No;7o<I,Friday' April.'1l!;:i992'I'Rulesand·· ~egulatioris·,
12636
reasons Jor dismissal of a complaint,...
decision if.theagency does'not issue its
e.g., f!dlure to cooperate or to accept full own decision within 6Odays;: ".,.'
relief. there is no time limit placed on
Under prop~sed part 1614, the
the agency (other than-the requirement, ' administrative judge iss.ued proposed.....
to complete the investigation within 180 . fmdingsoffacfimd'c()Dclusionln)flaw'
days) as .towhen the dismissal must.· . ' that were reviewed by tfleOffice Of
· occur. The complainant retains.the right Review and Appeals (ORA). the'. , .... ,..
predeCessor ofthe newJ)ffiee of Federal
to appeal such dismissals and. if the' '
complainant prevails on the appeatthe' Operations;whldieitheradoptea.' ".. "
complaint will be remanded to the' , .:.,' rejected (!rmodifj.edthos~ fu.u1ings and".
agel').cy Withinslructions tocomplete.the concluSion~, Manyof the 'CiVil rights:' ,'.
investigation within a prescribed period .organization~.employeeunion:s,'
,
of'time,By providing for,an appealfromindividualcommeriters and some oUhe
a dismissal or partial dismissal. the .
agencies objected to the non-binding· .
Commission seeks to design an .'
na~ure of the administrative judge'~ .... ,
. administr~tiye processtha,t oper,ates : ' .. findings andconcllls~onsand the.'.
" 'efficiently; When. onappeal,the: .'. , ,automatic reView of the administrative
dismissalofa portion o( a corriplaintis
judge'sfind,ings and conclusions by
upheld but the remajIlder of the.
. ORA as\itUiecessary and time.:
.
complaintis to be processed "."
, consuining, Some suggested that these
admirii~t:ratively. the Commission dOes .' fmdings and conclusions sho:uJd be.fmal
not irit~Iid to. force thecoinplainaritto .' .' .uruess appea.edf'lirther,;The reason. for·
proceed to Coul't,onthe ws.grlsseQ
.
havirig reccim,niend~d findings' .and, ,..
'portion at that tir:xi.e,lri8teaa:the'coriclu8ioiis~,ilie.proposedp:roVision.
ComIDissionbelieveSlliaftIle:';;
",
"ali' . d
' t .
.
.
. was to ensurequ tyanconslS ency
.' complilinQhtcanw~f~tilaJinal": >iU'nongthe~!Inilill8trativeiudges~.·:;'.,"
D. App(H/ate Processinib~ E.EOC ,:;' :
Ifth~~o~pi~ina~t~i~h~~ t~i;~ue :
. the matter beyond, the agency levelihe<
or she ll.layrdea civil action in federal
districteourt or mayapp~alto.theEEOC,
from the decision of an agency to. , .
dismiss an allegation in a. complaint or
from a final dec;ision of.theagency;'
In proposed part 1614.,EEOC 'would '
havereviewed.theagency,recoro'wnen
an appeal was filed to' de~etmirie if the
record wasadequate'fcirdedsion.lfit
was not, EEOC woUldhaye '.' .....
supplemented the agency investigation'
by various methods. It cohldbave' ". . .
remanded pai1:or~llofthe·mattertoth~.
agency for fUrther'it\\restigation and
drawn an adve,r8einfere~ce if,th¢ ,:, .'
. agency failed 'to'supplementthe record
within the time specified ,by EEOC or it
coUld have referred the matter to an
.
EEOC field office -for' investlga'tion.'t\nd
reqwred thl!ittlle ageneY~re~~iW¢,.'~
EEOC forthe'. 'investigati9n..">If'luf~enc.'y
f'_n"d't 'd' '.' 1"':' ·····d ",,,.,.1' ,', ," "'-l' ,
.thi:l.lle,eC·0~~mfsYs'~1'0?nl~"'co,f1J!~lad'·~aelqs,ll80"li,ea"vr,'e~~s~e~n"u.;t".':5,;.:...
."
w
..
i~~t~~~~;F~pIp·dlly.;.rtili:rl.Z·.~.: ?lp~ :'.l a.·Kn.~~.Tl ~,·.,m;t." !.'·.~ ;,a.~ :.o,ngrem;p,·~mun':l;a.'·~?inr:a.t,:·tl.w"g;,r~o d·~n:.·~a.VI,:'~e!.,~Phta~dt.·l~.,'·c:n~d.,Iita.'~,ty:~s;.
th
'
, ". ",' '. 'frofi!iri8.· .oe fil'mg;.,9f:).m.·0'·'f~lthiUne·'.:ct·0:'!Im· ·'·:pIthi l a:m~:.:f;1Both· '.·e:.·~ .lY.",·•.:ii,'.'.'.'.':
·.·,'
m·:·:th' : ·.'e
. .•ty:.b
.
.. .'
.: n.i-.rc
•.·o
•.
. •·,re.1, .•. •. .•
•.: .·.:,':
.•. . e.•..:.• •.
.:.!.'.•. :-·'. {,:.:.;
" .
w
.
to EEO(:{AqootdIDgly;part1614now,.' ..
·agell,cY ~ustC:;Olllpete ~tSiriyestigati!ln:.. pro~desthat: Pt,e~dminiStrativeJudge:·. Wlthinwhi~.~oreq~~st~qeatJll8.+, "'~
and proVjqe ,(copy orthe"~Complafuffi1e: WillissulH'indirigs:andconc'usionii, ~., ',M~Y,Cci~ent~f!iobje~ie~t~the.: ::,
tothecomplaiJuuit::rhe.:co:mpliin~t.:~".· whiCh Will become final Unless'the ~,,' ; delaYed.oppoi1:unjwto;requl!lIt.1! hEll!.ring .
will'be notified afthiif.tiiri'Etthat he or" . .•. . agencY,l'~jec~ or'mOdifies tliem: Alter' and thepo~ell,J~al1y;tinle~IlS!mlltlfV, ,.• ',:;,: .
initial reView ofthe. record byEEOC,;'
'she can request a'hearirig' by:kfi ~C~: .thefmaldecision ofthEi'agency is .' .
?dmini~trative'jud8~ ~r•..altema~vely~' an... jssuect·orthe,finqings~d c()~cluiiions
argUing.thatiiiriii>osed ll,eedless;:,:.; ;:',
unmedi?teo f1:1.al ,declsl~n by ,~e . J .' .; ',.': .become,fina1.thiiCompl~inailtma:y ' i
obstacles to ()I?t!'lirrlnga' heEUing~d •: ~
employmg agency. While the ~IDll.ation ':. appear,to the:COlniiiisslon'by.filingan ... ·· .. that thepreli.miIiaryrEM~:Ww:as.::.~c.L
requires that the complaint file ~d the, '. ;appealwith';thifOfficeofFederal";' ,
unnecessary i,fa hearing were held> .
Some agencies also objected to, the';", .
notice be given to.the.complilinEuit;,thfl,.. operations (OFOl' to obfamappellate
agenCY is' alSo 'imcourage~.,Diitn()r;', •. · review of the' agency'sfinaldeclsion,
"preliminary I'Elview of.th~ record by ': ..
reqriire(L . t9.·preptire.' :alltpnmilry,~.r.rep9rt. '
... k ' . 'd . ' .. b' EEOCandsorneobjectedtothe.:··'·
" . . ." d I ' d ' th
Eiiher,partycaDsee .reronsl . era~on y proposed reimbursement and reports to
of investigation an a so PrOVl e. .at.10'. the CoiDniissioh of aIiOFOdecision' or
Congressl'onal co~~;ttees when' ,..:' "
thecomp.lai,Dant.Ifth~coniplainant'
th
'11';" .... 'fil' .. ' ;~ ...1'"'' ti"'" •..;::,.,
. . ',' ft;;"';'I'd'" " ,. ,. the:~~ay>, . . ~ d appe ." 'As ... d " , 'art 1613' ". ,'.
.. n·.;1 . '
e I ant 'can ., ea'.(;IVl,l.a~, on."1.·
m'ad.eq'uate r'~c'or.l'- were··produ.·c.e.d by..
'
request8,a'LI;l.~w, . ecisloJ:t.!>,r...
W>
"'d '1'
. 'th
th' "di 'd · . d , .. ""', 'db""'th ...,:.;;
,
the agency', ".
.""."
."
.....
pe.no eapsesWlou t' '.' em Vl,.UaI · ' ; l e eracou.tt. .. un e.rp... ti' ,. •....
. reqll.estfugii;he~.t4e·age.)iq.;Wl.·
. . o~~
eClslons~.slgne y ei"""ecu yeo . .
In viewofthese,colllIiients. aiJ«
,
,.
.
.
'
",
, h ave 69. d ays to,18sue the d emsl0ll:";,),' Officel'onbena:lfoftheCominissionwill explam"ed a··bove.·•.
w·'e' ·hav'e"re·Vl·s'e"'d:the'
" ' ; ' 1 ' .'
,"
.
..•.
",", " "t Ii;'t ;"-"l'b'
preCedentiiU '.
proposed app'.ella·te ,proce'ss ·to'e·limm·.
;'
'''ate
·Where''''heanngUI reques ~,I.<WIl ,e have . , ' '... valu.e. , '". ." '. '.
a
conducted, m tbe same manner as in. '. . .
. . Mariycorimlenters sugg~sted' that the " ' any reimbursable investigations at that
proposed part 1614.Theadminis,traUye . Coriimission,sbouldplace time limits on stage and to move the heaiing baCk to .
the agency level. This approach will .
judge ~ issu~ findingsoUact ru.t&:.j ,.its processiIl8 of Complilints~.With:the
conClusiOns of la:w f91lowing thepearing change iIi th~ process so thaMhe hearing permit a:u factual develop'menno occur
and. :where a Jindingof (li8~a'iollis will~emainatthe agen¢yJevel.' rather ".' at the initial stages of a complaiIlt.and
made. an appropriate remedy will be. '. . than being part.of ~n:ulti-f!t,:pappelIa:te.' will eliminate any perceived ob~t~~~es
ordered Because the hearingwill.take; , process;the.Commlsslon believes that~, to a hearing. Asunder part.1613.'the
place at' the agency level; the ,agency . , . 180-daytinJelimil canbe:pl~ced()Ii,the r<r. CoIIl.lll,ission'willret~in theiiSl?(t{:', .",.,
will be,given the;s~me opportunity~at' administrati~e ju~e's pro.(;~8sing.of·a,:,r~, supplemen.ftherec()f(;i;qrapp~al~!fi~:'::~,,:
, itxidw,;lj~s~~i;ier,pl1rtl(313tois~~e, a ',: :':".:' com~laiIlt;S~c;:ti?n,;161~409~l:now\X:;:::){:~:mteIl~~~;,~::t}h;~ :p§Y!,~~i~:~'1i~jJ.~~~~·;
fmatdeclslon;:but.must:do 8O,Wlthin:60:. :::provldesth.at.;wtthirillJOday:s,ofrecelpt~,., on1y.J,Jl:rare,J~ls!iili<;eS to Av.01d .11.:;.;..::.,:" ., .. '
.r
,·5;.e.:
..
LUllU
'.
'.~j:~?:,~%~~Q~e~~~~;~~:~~~;;;;";"i; ~~ •.~~Ws~~tft~Th~~;~~fi~s;:~;~:~:,:·!.fe!~t~~~~l~~~~~t~~j!j!;~~~:~1';':;~.:.·.·.···
. adrilini!ltraUveiudg~~s find,mgsand ,,'',". •. findmgs;offact·~nrl'concluslons(lf Iaw,·-:mtended t(,)per.Pll~,~epa~b~s; tp, p.'l.~ ~ll"L' .
., conClusions ,will..
bec:ciine. .
'.
.
.
' thefmah",(. :~..:,.on .theme'rits .
.
. ' oUhe complaint··· ";'.:'.O:'c,:;;, relevant iIif6rmationin the fEliOi:d:The'-;:'::' '
.
~,-'
,
-,
,.-
,
. .";'::;
�· Iightto.a hearing also puts theb~en. asked the Interagency Committee on
nondiscriminatorY reasonable
on the partiestoensure·that the record . , Handicapped Employees to recommend .accommodations required by sectioli504
· s'complete: TIi'e. CoDlrilission does not
i
.a legislative change to section'501 ofthe and the·affirmative action required by
Rehahilitation Actto pl:ovide '< ,.:.
secti~n50ito effeehubstantial changes.
intend its reVised-authority to. ..... ...
supplement the record t08ubstitute for
competitive. employees oflegislative and adjustments and modifications iri' .
the parties' responsibilities to develop
judicial branch agencies with a remedy .' existing personnel practices. Section 501
· the
under the Rehabilitation Act.
requires each agency to submit an .
By shortening the agency proCessing
F. Reassignment Under The'.
. .afftrniative action program plan for the
time. providing the right to discovery at Rehabilitation A c t '
hiring. placement and advancement of
handicapped individuals including a
hearings.imd. wh~.n appropriate.;
independently reVieWing the agency's
. The EEOC has taken the position that. description of the extent to w,hich and
under certain circwii.stances. an agency methods whereby the special needs. of .
decision. EEOC has ~Uempted to
eliiDliJ.ateuriilecessary delays and to
is required by section SOl of the .
. ' •. handicapped individuals are being mel
correct any perceived cOnflict of int~rest Rehabilitation Act of 1973, 29 U.s.c. 791,' EEOC can require that agencies utilize
or unfairness in the current part 1613
and EEOC's implementing regulations to reassignment as a method of meeting the
practice of agency self-investigation.
reassign an employee as a reasonahle
special needs of handicapped
.
" 'h
h b '1
accommodation. Ignacio v.• United
employees. As a.special affll1lJati.'ve
Eo Coverage 0, T. e. Re. a h,'falion Act
Stat es rOS tal S ervlGe, Pe ti°ti on No..
n
.
.
. action requirement. the reassigruilent
. 03840005 (Sepl4, 1984),upheld. 30
obligation would not be Ii component of "
In a change rro~{§'i(Jl~~701(bi.
§ 1614.103 eliminates coverage of units'
MS.P.R. 471 (Spec. Panel 1986). The
the staM's reasonable accommodation
coUrts have not embraced this position. requiremenlBecause this is a new
. in. tJie legislative and judicial branches
andre'stricts the Coverage of part 1614,
Congress intended the federal .'
provision implementirig the affU'lI1ative
·for purposes of the Rehabilitation Act. to government to be a model employer of
action requirements of section 501 only,
rilllitary departments as definep in 5.
'the handicapped ap,dEEOCbeHeves
the case law interpreting reasonable
..U.S.C.l02. eXecUtive agenciesas
.' that reassignnient of employees lVith .
accommodation would be inapplicable.
defined'in'S US.c.: 105,' the U;S; Postal
disabilities who .cannoloIigerperform
ThUS,c8.~S involving reassignment;
SerY1Ce/thePostalruite Comiinssion"
in their positions' becaUse ofa d,lsability wouldcrelyon this new provision and .
· and the Teimes8ee Valley Authority.
is.aneoossary Componen~:oftliat·.•·.·.,'"
not thereasonable-e,ccommodation ~
This de'6.n1tioii'ofEEOCifcliili8e'
. respon8ibili~; EEOC.:~e~f()~,; '.,.' :...
regulation or case law in determining'
~.processing jm,isdictiori is.ba8ed:o~ the
proposed anew § 1614.203(g) imposing a
'I al
dards It
ch
, . . . . .' . , " " ' . . '
. the proper eg stan
'lOr 8U. .
lain In.....;ag·eii'f'seCtiOn SOt.ilf th.e ,..
P
~~u.
.•.
dutyto~re.~~lIign,.~m.r.p!(}Y~f!8~th,.:., . . . . rellsSl'an,m en'~..under.. sec;ti·on'SOt.,;.. . .:. . :,.,.
Rehabilitation Act;whicliliinitS;~: ,f
h di ' i n ' . . 't'" " ,_.,,'.
0-;-'
lD
.
•
coverage.to dePa$ten~ agencies and
~:r!ces~~~;:~!;~~~It~l~ , . , .11ie majori~.~f ~eilidiVidu~I,;.. .
'instruInentaUtie8'hHheexecUtive' . affirmative action obligation \1rider; . commenters,ClVl!rights org~a~ons .
bi:anC;hl:imd brlDg8:tht!:regwation:irito
section 501;,~'' :,i.i·:'.':'·' , , " ,
~d employ~ UDl.on~ a~ Wlth1h~
·coruorinity with a reCetifdecision of a·' "It shoUld he noted thaft1i~~e~entlyprop'osaL The D?-a)onty of agency
, UnitedStabis CourtofA;ppeals. InJudd' enacted Americans With Disabilities Act' comme~ters o~Jected t.o the prop~sal on
· v; BilliJigton, 863 F.2d 103 (D;c. Cir.
of 1990, which prohibitS privat.e
.
theba~ls.thatat ex~ed EE9C:s ..
1988);'the court held tbarsection791 of ,employersfroin discrlminating c;mthe .
authonty, was inconslsten~ Wlth the
the Re~8bilitation Act~i1pplies only to . basis of dissbili.ty when mlild.ng ',~.. .
case law and was impractical and ~at
· employees hl tbeexecutivebranch; See employment decisions, inchi(les8' . , . the I!nguag.e of the proposEid ~la~on
. 29U.S.C.791(b).~!863 F.2d at 105. A
provision identifyirig'reassigIinient as a: '.' was,mcoDSlstent ~~ the languag~~;
couple of.commenters urged. Us not to '.
reasonable accolnmodationwhen an
the preamble descnblng Its operatton.
.' abide by this (}ecision;TheCommission. employee is no' loDger able ~Oipert~rm a . ..As ~~ted above,.EEOC believes tha,t.
job.' EEOC sees this asaclear'.' .• '., '.' reass~ent ~Elri~ fro~~!l agency s
however, already:acknoWledgedand
adopted the Judd:decisiori in -Faucette v. . expression of the inten\of Congress on
aff~ative a~tion obhgation IS' ....
.
KennickelI. Request No. 05880886
the issue of rf;lassignmg workerS ,with
. cons!stentWlth the statute, the .'
· (March 1, 19a9).Because the": .
disabilities and believes the federal;
apphcable case law and EEOC's.
authori!y to issue impleme~ting·
Commission already.decided.tbis issue,' government. in its role as model' '., .
we are not reversing tbatdecision by
. employer, should do no less.• ~..,' .
. regula.tio~s. The case l:,-w CIted by the
regulation;.. .
..
.. The Supreme Court has recognized a
agencies mvolvedthe Issue of
.
, . The former Civil Service Commission 'distinction in the Rehabilitation Act's'
reasonable accommodation. often under
had authority to issue regulations
civil rights provisions between.'·· .
section 504 of the Rehabilitation Act.
covering competitive positions in
nondiscrimination and affU'lI1ative
.. and'in many cases was premised on a
l~gislative and· judicial branch agencies, action. InSoutheaslern Coinmunity
reading of EEOC'si:egtiIations that the
5 U.S.C.7153; however, that authority
pollege v. Davis. 442 U.s. 397, 410 (1979), courts found did not specifically require
passed. not to EEOC; but to the Office of the court contrasted the "evenhanded
reassignmenl The cited case law was
Personnel Management in 5 U.Soc. 7203. treatment of qualified handicapped
not on point and does not. in our
EEOC has requested that the Office of
persons" required by. section 504 with
opinion,provide persuasive ~upport for'
Personnel Management issue a
the ~'affirmative"'efforts to overcome the the objections raised.
regulation under section 7203 extending disabilities-caused by handicaps.. ··
. . Any difference in language between
regulatory coverage'oftlte
required by section 501:and noted the
the preamble and the proposed
RehabilitaQon Act toc:;ompetitive
requirements of the latter section for'
regulation is explained by the purposes
positioDs.in the legislative and judicial 'affirmative action program' plans that
of these parts of theNPRM; The '.'
branches.. ne, OffIce of Personnel ' : . describe hOW the special'needs of '., ,
requirementis thai agencies reassign "
. Managementhas responded by stating ". . handicapped employ~esarebeingmet.:.. .employees with handieaps in the : '.
that it do~sno.tpelie:v~jt has 'authority . The CourtreiteI'ated in'AleXander· V;!····.:" circunistimcesiridiCated~'The8genc:Y ....
. ' under the·RehabilitationAcUo issue ,. Choate.469U.S;267,'300ri.20,(1985).the '.. should consider rea'ssigiuneriiwhenever
.. sucha'~guIa4o~fuaddition,EEOC has. distinction between:the.;y;·:;.;,·,;·.;,.···· . "anemployeewith handicaps can'·na.·!·
record!
. " ...•.......
:'>" ,
�.
..
limita tiomf periodm a statute does not
mean tbatthere:iB natiIill~ limitati.on for
fiUng suits under thahtatu~. "
actions are generallybro~. under .
subsectio.n. (b}(21 ofrl.lle.23...Ho~v. .
Co.;; 706.F.2dl1~..1152
. The annm.ents were unanimously in .
favor oC this revision.' . . . . .
"~}(2r.class i~tba~the.~f~t.;
.~. tind~r 29CFR 1613.219. employees of' Brotherhoodof TeamsterS. 462 U.S.1Sl.
Coritinenta{ean
H.·N,eg".o.tl.;dre.:. · i:rCrl~~~..~. .. '.;.
ure.
(l1th~.r~1Jj~l)\.preiiqUisi~oh.:;:··
..
....
."
R.·.·
DelCostellovl lITtemotional'
... .
· "actedorl'efu~dtoJlt:ton8rounds'
. agencies co~by 5.U$.C.71.2l(d}
'158 (1983). Wheri a statuteis silent~
generally applica~le to :tl1e:class..: :'
mustelect initially to pUl:'Stle 8 matter
courts borrow a liniitations period frOm
therebymaldng appropriate final .'.
that is hQili grievable and allegedly
a closely analogous statute. JohnSon v•
. . inJun.ctiv~reiie.for
discriminatory eiiliertbrougb the
Railway Expre~s Agency, Inc.. 421.U.s.
declliratory.rellefwiAlrespecltothe .~o~t:S;;;~~edmeorbut 454. 466(1915}.. " ' . ' . ' ' ..
classas.awhoIe......·F~~ Civ.P~!(;.:
oug . e.
....Ulf"'. procesa..When
iridividual has. not filed a
· 23[bl(2): The rlgh1toop.fo~~fa~ ~.
not both. Thi.s regulatOry-proviSion alSo
notice of futent loaue buthas. pursued
class would .be iIiOOiWste.m.:With.tl1e ..
states that allegations of discrimination the compIafufthrough the administrative
prerequisiieof a (b)(z)claSa:duitreHeris by employees of agencies DOt subject to process. the cOurts. have splil on the
appropriate for·the. claSs #·a.;whole.
5 U$.C 1121{d) will not be subject to an
issue of the COl'l'ect statute of limitations
Some courts h!love pemiit1ed class.
election and should be prOcessed as
applicable toADEA lawsuits by federal
complaints underpart 1613. Part 1614
. employees.. One court found that two..:
members' to opt out of 1l'{b}(2.} plass but
only at the. settlelJlentorreli~&tage... . continues this processing distin¢ion
and three~year limitations period for
Coxv~ American CastIronPlpe (:0....784 .between agencies that are and are not
private BeG!ar ADEA cases was the most
co;:~byJ~;~~~
alnd
.
analogous1imitations period forfederal
F.2d 1546. 15M [lith.Cir.:i986}.In.Cox.
the court held thaUt would be an.abuse
......."6
sector ADEA cases. Weirsema v~ .
of discretion fm:·a distrlet court permit prOcessing responsibilities that can arise Tennessee Valiey;Au.thority, 41 Fair
a right to opt' out at the, certification .
in agencies that are not covered by 5
Empl. Prlilc. .Ca~ (ENA) 1588.(ED. Tenn.
stage. Le.• before: the .class ia identified'- usc. 712.1(d1 however. EEOC.pro~ 1986). But see Lehman v. Naksbian. 453
of the clasaclaim . to t,oU the new ~Y procesSl.D8lmut
U.S. 156 (1981) [tbeCQurtheld thatthe .
·or before the
cOrreSPonding. .
..
an
to
menta
·
ar;~~~~.g~~~:. ·~!4u:l:~ested.·o:rethaoqgt~~·beOf~e·. ::e~=:~:~~~vn·
a
wOUldmakeihedaUaCtiOn~: .sthection~~. . ....".mar.;.. ,.
..
. ,< . ' . . . . .
. ..'
e parties ..mteft!stlltop.:ocess um' m
.rather than
.. .. ··.·lli.e.·:pnv8·.til.sector.·. ,..- • .,...OIlS
~"'.'
__lftl_t· . .l.......l.:.
'. ha
oHheADEAforgnidaneebiinterpreting
~pea.'·~d·.·li·tVoo.ti~
__ ..1.
CO.u..oy- even 1UV"'l9-' a gn~aIICe.. S
.i· "ADn' A.' . ·federal· ....,:;..,.;....."'Mui·
.J .
the .... -; ....., •.. ~ of.. ..........;,;... GUU,
.'
,r."ucu&
been filed. One employee 1DU0tI' ·mer..n:$ .'. . . 8-.-.a''''_' .alans •
pra~~~.!l:~.~tthe·· objected .that the employee b;18gencie.8 ': Othercou:ris'Jiave'bOiToWed the title VD
class actionp~~ide8lgn~'~.o ·.notcovered by 5 UAC 7121{d}hasa ;....... limitations:perl04 as.the.most ;.~' '.. ::
pre.venL~.184:~~ ~!;t5S-l.:t.hte.of:anc right to dual proces~EBOCbe1ievesana1o~LD.VerYv~ M~' 918 Fold·
oPtoutp~~a~~~. that dual proceSsing is.'m:mosteaseso·········· 102Z(lst·~..199O);Motlbews.v.U.s.:·
ora clas8.~:':'force(8)t.;I8.8$".:,~· ,.c" : .. wasteful and confusing and that'. .
.Pos1alSem~49F8ir: EmpLPrac.Cas~
members.~~a8taud8gaiDaHh~. ..tetnpOJ!8rily holding tbec:omplailtt in
(BNA13tt (NDN.Y.l989J; Carn:nvayv.
employEl.rS. In order to alay cin a.?f' : ')', abeyance is an appropriate respOnse to' Postmaster Gerieral Of the United. .
controversial:la~AUiL""Cox.:f84 F2.dat '. such a situation. If the employee is not
States,.618 F. ~ 125 (D. Md.l988);
15~ 1~~d.ilJcc;rurages Settlement. satisfied with the resulfOftbe: grievance Strazdos v~Bcikei689 f. Supp.:nO
by ~it~sibletoi,"~yeall .
Process. the compHant can be Pm'sued . . (S.D.N.Y.l988):DiCamillov. u.S.Postol
clauns at once and: would sUbject the,. after the grievance procedure has '.'
Service, NO. 81-602S (D. CoIHiApri122.
d~fendant to therlsk th~~,cl~~ber8.terminate,<L We also reCognizediat there 1988); Ramaehondraini. U.S. pastor
will settle .oruyth~ques~~ r.,laima •." mllY be iome individualcircumstance.s.
SelVice,.NCLCV~1Q9O WOK (C:D;
and optforsepara~tre,atment of the.
where.holdingthecompJamriri. ;" ...'
Cal. April is:. 1987}. d/rd.NO.87.::ooZS ..
stronger claiJ;ns. J:1ncode<v·.eeneroJ
abeyance would not be appropriate.
(9th Cir. May 26. 1988J; Healy v.u.s, .
If Rubber Co~ 635 F.2d SIp. 507 {5th. Cir.. Therefore. we have revised the section
. PostoISeFviciJ,6TJ F. StIpp: '~2M . .
· 1981}.~.opto.ut~is thus. .
t.o permitrailierthanrequireagencies
(E.D.N.Y.1987J; White v. Department 01
· inCOllll1St~t~th theTl~ey~ go~ of .
not subject to 5 U.s.C.71%:l(d) to hold
the AirForCe; No: CA4-87-145Z-R .
complaints in abeyance. Whenever an .. (N.D. Tex. Oct. 14.19ff1}; See a/so Rivera
· encouragmg settlement of claims..
Even though the opt-out prOvisioni8
agency does 8'0. it must notify the . '
v. u.s. Postal Service. 83D.F.2d 1037, .
eliminated£rc;un.the regulation,; all class' complamant. H the agency-chooses not
1039 (9th Cir.1987}' (di~missing ADEA
claims {or failure to fde within 30. days}.
members will still rec:eiYe noticetbat~ to bold the complaint m abeyaIiCe. the
class ~laint has been filed. and '.' .
normal time limits are nat tolled and the cert. deilied.l08S: Ct.i737. (1988). 'Three
notice of any settlement or decision on
agency must issue anoUce within 180
courts have refuSed tci'.boriowthe 30
days.
.
.
.
day limitations period of title VII for
the claJ8 CO\Dplaint. H they do not wish
to participate in the class complaint. If
.. . .
ADEA actions without stating what
they do not wish to participate in the
L ADEA Statute ofLimItations.
limitations period should be borrowed...
class or to me a claim for:individnal -.
. The Commission proposed in .
. Cvleman v: Nolan. 693F, Supp.1544
§ 1614:410 to ~ddre881he absence of an
(S.D.N.y. 1988}; Wetzel v.U.S. Postal
relief. they do not have to do so. Those
who wish to participate will havefue'
explicit statute ofllinitations period in'. . Service, No. 87.:.+cIV-5 CA-D.N.C. Aug.
section 15 of the Age Di~rimination in
14;1987); Tkac v.Vl;1tero.ns '. ..'
opportunity to objecllo any proposed
settlement and to file claims for : .
Employnient Act. 29 U.s.c.633a, which
AdniinistrapoI], f31()F. Sl1Pp. 1075 (W.D.
individual rellef if disc:rlmination is .
creates a right of action against federal' Mich. 1985J.:r'\vo co:urts. applied the siX
found. ~~evesth~~ classi.< •••
'agencies forViolatiollS of the ADEA>
year statl.d.eoflirrutatloriacOritalned iri.
· membersrigb.lB. ~ s¢ficien.t1Y:: y':'.":.
...
"
·:.Thepro,pos.. edreguta tionaddre..s.··•.sed.tIi.e· . . 28 U.S,C:i4ril.(aJto·a.fedeiaI.sectpr,,, .. ,·.
..
protected: by'thenotice pro:visioils and . situlitions.'wben the cOmpIamanffited an ADEA sw[;LdlJIljewslii.J:\.ce.mnan;,Mi
that the 9Pt~tprovisionisboth,!~::administratiVeCompla:rnt~ndanoti¢eof F~2d216[9tlttir.lga9i;·MarkSk:;' .....•..
·.. incon9istenta~1lDJleCe8sary~"'71."';" ....... '.. intent tostie.:TheabsetIce oftlrlexp.ress-· Turnage: 46 Fair· EIDpL PilI'c; Gas: (BNA(' .
leaaef[ective.ltwould~pos8ible .
T.ll'e
�,,'
,'.
longer perfoI'mlUs'or·her job but must ~ lowest-graded:vacant:positiori:.liitd,;~:,:r:
coiisi~ierii:Witlf;thi~~~cti6n.:~e'agre~' .
reassigns.uch
empl<;lye:e:.whenever,· Lunderinine:theiCguiI:ement~In':oraer to' !that:itsh.oUld be'reqUiied;,cAi#.i~in~IY,
thecircumstallces desclibe.dirithe:·· .... meetthisconcern. therevisedsectiriri·
we'have revised thesection·torequire
:egulationa~.met Althol.llW the ::.'..' . •requireli reassigninen(t(dhehlgtiest~;:··
reassignrilentiifthEfPosfal 's~rViCe'" i':'
Jrelunble c.haracterizedthisas>: ~.:' .. . ..,availablevacancy'-belowthe'employee's 'ili:iless'prohibitedbfapplicablc'''''' <
·cQ[ulideration.·~ it expla~ed the. process •..ctiITentgrade•.:when no, v~cancY.e)(j8ts
collective bargairiingagreemenls;This
Jf reassignmerits'and required that they .at the current grade: Reassignnlent to' a . exception recogniZes the rightS of ~ostal
Je made whenever the agellcydiscovers higher-gracied·p()sition .isnot re,quired
. SerVice eDlployeeS,~dei' their c<,lllec.tive
lutingitl!. :~co~sideration'r~a ti the " ,under this se'ctioii.':.~,;'" ~ :,:f ':. ,;.' .' .•
' bargaiiliDg agreementS. but the :";:. ,,}
:ircunistances described in the
.' Agericies objected'lli~tth~y!c~tiId'
exception isliniited to the POstal "., .
'egtLla~on,applY'7'" : ;::, "..,S:.•. ·.. '.
"oruyplace'8i{'employee"ih"t(lowei . . .
. Service. Labor relations aUhe Postal'.
. Some agencies With multiple.: .. ·'gra.dedj)osititinpW:su8ijtto"aaVetSe :' . Service fueg(jverned byth~Nationjd
:omponents within the same commuting action procedures 'anditlltirefore;;could Lab'or'Relations Act.'wllilemostother
!reaand .th,e Office of Personnel' .. '
. not comply With)hlsreqUrremeIlt.A few'·· :federalagencies are governed by the" ,
.1anagemeJItargued that it w.ould.be
agende8alsoobjected~l!t~e/
.. · federal service labor relations . '" .
.mpractical and extremely difficult to
.reasslgnIlleiit reQU1rementin this section proVisions of the Civil seivice'Reform'
ea~'signel1lployees Jrom one agrmcy .woUlqp~ven(eliID~~~'~Inp19Y~~~P:6m . Act Uwike Postal service employees'<
omponent to another where such . ,
. retiriIigon di's8.bility: Th'e pUri>o~e'of this .who have legitimate expebt'ttions based
olllPoneIltshave seplirate P!lrSOnnel
reassignmenfrequirement IS to aid those on, seniority. othedederal,l':!mployees do
uthority~ As a result of these .:
.
employees with hang1eaps'who want to 'nothavesucheXp~dationsbecause,'
omments.we have revised the section
con.tinue employment with their,' "
imderth.e CivilSerVice Re~cinn Act•. ,.... '
J onlyrequire'reassigruDEmt Within the
agencies. rile ~uiremenno ,ea,ssign', ., fedilrl:1.1 ageiidesietaiIitb.e,tigh,t to ,hir~
art,(slofth!l. agency located .in the same. only:arises whell~·an.'~#lployee)s .ii;n~ble '.' arid. assigneDiploy~e.s ,~ accol'd~~ ;:" ...
om¢u.tirtg,~a thatllhare,the .same.·. . to p~~~.~~,~8r.!i¢~,~~,~#on~l>¢~Use;~f witll 'applJca~leJ,a~.a,;~Y.p"c; ,~~._~n!i
ers~IIl1':!I.apPoiI!tin8·Il~t)iorjty.:We .·ahandicEiP;:l;e4iti tngse: .~lien are. s.ubJecUogov~rnm~nk'Y1ae.,",:i •. ;;.
av~:al~c)..~ll1ifieclJII~t oPli funded ...8iiag~~CYiitp.,r.Ppqs""" '6f;~', ...' . re&tllB:!i0,DtJ,~¥~~~·;Ui~~_~!~J.1,:S•.C;,71.:~?. •
acancies.rieedbe ccinsidere<t I.e;;
·;doWri8i'aae'8ii.e~·
ty 10' ..... We,wowdIike'.to emphEiI:l~ 'some' of
an
"'c', c.
iu:~r~:~~~,t'~';~i~;;c:~·~t%~~~~~~. -~:b~~:~h~f
s,.
...' ¥'~:8~s
!:~~~:~~~::~~f:~nii::~~~~~~.
e!~~~~~s~:;~::~8:~ti~n"'i-:!~~:::~~CYjptf:~~~m~~W~·.· .
r:~~Z;~~o:i~:~~~~:~~;;~~.
istinguI. sh.ms;k.etw.:~.,e~ v.ac
~
...imcie.s.::tha.t.·
.
fulfillElditspb1i8ati,~nUlitl~~r~8if~ti9n: " employ.~~JsIlQlo,ngefableJ9;pf(lrfo~;:)·
av~ ·.b,e~J,l :po~t~:~~ttho8,e.that:have~. . the.ageacy,s.llcjWd'n'6t':@p,~C@nQt:9i~:· .' beca\1~~ ()f:tlte.ha~dicap;illii:~nip.oYee;r.
ot,TheCODlmission bEilieyes!thatsuch . . this sectiori i18' autlfori.tY fOf a.:non~;.;-;:
Wjthhandicaps C8Il be discharged or";;.
distiI1G~~~1~#ece8s8jy~to'de~With·
c.o~eJ,ls.u.~f!'l.a.~~~e~t"y'v~':~~:~~(,· .. ·.~scipline~withoutr:eassignmeIitif the
le~xpecta~qns ()( o.t}u~r:indi~duals :.',' . ;beije:ve.,tpat.W~ 'tl~cti()~'~9.~fbc~ ,~tlt c .' <llscliarge IS based upon conductor
:ho hav~app'liedo~~planffing to'. c,., ;the1ighfl?:9~~ij:ipl~y~~,:o~;th~ .' ;,','> .perfonn8nCf,'ltltati!J~not,due to the:',:'. '; .
pply for vacaiicieidhat havebeen;:, .'.
obligaticirispfji8~Ci~:~a~ri
..:¢~ble.. h~diCap, jObe 'c(md~ctor perfom!ance
,sted itliris;'whena hotlce9r,,:;' ;,::,
disal)ilitY:reureJJie,~tsYI3)~D;i~'; ~:e ,Qf£i.ce .is so:egregiousto warrant diScharge' ~ ,i·
:ifiounce~eiii ~eeldngapplicatiori~
ofPe~oniierM~geI!ientd.i.~lc~plraise,· . even despite .the presence 'of a'handicap,
spe~c_va~~y,hlls,~en ppsted ,prior ~>;. sll~~~~.,e*~oi(,~W~~~~().~ents OR .or if.the'e~p'loyee€l?~s·*:o.tadhe& to·, . . . .•
jth~tim~"tl;1.e;agepcyJl~sqe1ern;ii:ned, ..' this section.,On.tlie. contrlll"Y"EEOC.;,.
the terms ofa rehabilitation agreement.'
·.atthe,nonpr:ob~a~olullYE!mplQyee is '. patie~~d this:Sectio,n:Qn;jb~ 'stitiiliClry ,: .TIle employee'also'mlistbe able to ;. ;
mble.to.perform the essential·.··.·' .' ;. . 8rid'regU1ato&..~qliiremeri~a:ppli~ble
perform another position with or'·<',·
..ndiona,of hiilor~er:p()sitioneven "
to the disabilitf'retlremenfprovisions,
without accomniodation.Theduty to :;.
ith reasonableaccommodation.-the
.Uii?e~th:~CiviJ.>Sew~:¥~w.:e.ment.; "" ; provi?£l an acc?:nm~da tion., iii, the, .• ",.
lencyis pofcibligated byfhis:se.ction to' System and.,theFederal Employeell . ··••. ..
reasslgDed pOSItion IS. of course. subJect,
:assigntlle ~dividl.lal tethat jlOsition.
Retiitmlent Sy~t~i:JL>;..;\ ,.' ;<,,:, '. :
to.the undue hardship liniitation.' ..., '; .
It musfconsider the individual on an
.'.. The proposed liectipn exempte<l the· . Therefore. if the individual'carinot . .
tual basis' with
.who have:' . ' pj)stal ~rviceftomtheI'equiremenf" ··perfoi'm any available. position without
ready appli~d f()r :th~po8ition:.Under . insofar as ,it ,might,othen.Yisebe'required an accommodation and any necessary .. "
is cii:cumstance"however.the·, '.: .
to reassign an eDlploYeeto aposition,in accommodation would impose an undue
lligationto r~'fl8signuIiderthis secticln .. a different craftor·to m8.keanyother
hardship on the agency, the agency has:
m.applies to IinY.funded vacancies..
. reassignmentthatwouldbe inconsistent no further obligation under. this section~
at havenQt been poated,.Thus.when
witht1ie terms,oh collective' bargaining . The Commission believes that the undue.
'nsidera~()Ilfor .fl. p!l~ted.yacancy does agreement covering anemployee;'This" ',. hardship concept should apply to the
·t result in .selection 'of the indi.viduaI.
exemption for ;the· PostaIService.wa~: '.reassignment provision as it does to the'
~agenty is o!?Ii8ated undertJiis
included in order to. be consistentwith:
reasonable accommodation provision.'
ofthe '0 :t" G. O'Ptin.'o:Oui ofCIa;; Complaints' .':.
·..etirO.ariptpOr.coopnn·~ai. td.eevra·thceanincdil'e·sVI,·dualfor
.~
fthde.era' sa 1 're lrementl}ts'hemes'a . .' ,
e r.ealsdis~b'il~.nty.treqt.iiir:enie. ·:sc
.0'
..'
....
.
• ,,'
.
fo; .'
,
nIose
.'
Some commenters also raised. .
.5U.s;C;8337 andi51ts,e~ 8451: Some,;."
The Commission propdsed·to del~te:' .
jecUonst9the re.quirement for. ,.' .commentersquesticineaiwhy,a,cross~f·; . the opting outprovision~:containedin'
assigiiID.en(toa lowergraded position . "craftreassignmenrshQuld:not:l:!e:,-,/,:::,!:' : § 1613;005(b);ThedasscoiriplairiC,Y';;:,' ....•
n.e~p.o ,vaclincyat the .emploYee's,.
required if such:a,rea~signmerifwas;;}.~;:' '. regulatioDffwere 'ba'sed'on:ruie23'oC-'th'e; ...
ade'leveleXlsts;Some 'uxtions., civil '. ;"consistentWith,appljcal>le~collective~,,!,/ . Fede'ralRwes'OfCiViI PrOcedu:re;:See41' .,
;ht.s,:~r8~ri~~~9~~a99j:ndivid~al.; .•.•. - bargaimngagreementS:.Hsuchia;.<i:.;,j:" .. FRBoaf(1976);42:F'Rii807'.(1977): Rule'" .
m:menter.!lllrgtled:th.<;l~·\!ithout. any·
reassignment ispe.rmitted·by:tne ::".'. '.. ~ 23 governs class action Ia~suits;:::'i;.;
lit~ti0I:l~!ag~HI:.te~ could offer. the.
applicable agreements and. otherwise :.Y. Emplbymentdiscriinination'elass ,> .- .
i'.
•
I •.
.
�12~Q .'
.~',:
-:.
~
.;,
,..(l~er'ill;~~bJr:"·kXoh· 57;~,No~-::7o)chFl1~ay; '.!APriJ.': 'lQ~~;1~2'.lj)R;itle~i':~~4,,~~w.l!!.i,9.nS>: ;~~.;;;.;.:i:.,. ' ,
,_:"~.:~'.. ;_;..;;.:...-.,,.;J:~
- __
i:-<~~',~
". ,",...
:82 (N.D. IlL 1988): Another court, \Vhile defining the limitations.period for, title
the' Co.i:nmission und~i' tlie'ADEA. These
,ot reaching the .issue, discussed the .'.
VII suits 'is not incorporated by EEOC's' legislativell·m'~ndineli~'Di8.ke thos~ suit
jsue and indicatoo its bEllief thattlie
ADEA re81Jla,tions. ~t:ld.~ ~!lt..~~~~~e·~"
period!(.consisteri(~th, lI-!it~daYiiiit·
ix-year limitlltionsperiodshoul4.apply. that suchan inference necessanlyflows period .~aets~tioii7Q6 o,(title'Vff:a~d
lornholdt v~Brody, 889 F.2d 57 (2d eir.
from these: regulati 6ns.' Mos't:'.!:·': ".'-; ;.;
incotporatediritothe'A,itieri.~ans \Vit~·.'
989); ..... . ;' . . .•. .
'"
'~.
importantly, the'courts did n()tconsider: Dlsabilities';Act TheCOmnussion c ,.
. the effeCt of the CSRAor theanomaloiis believes'iffs milstapproprl8:te to borrow
We find thereasonm8 of the cases'
pplymg the twO:~ ilr three,.~ear·:·
resultS of their opinions, i.e:, that' one·
this OO-day periQd iriord.~r for there to ':.
nutations'periodof thepriyatesector
be a unifotIn liinita.tions perl9dforall '.
lawsuit·resultingirom one incident or
DEA provisions or'the siX-year .
event alleging Violations of titIe'VU and claims of employment dlsCriti:Unation:
mi~ti«;l~S period of 28 U.S.C. 2401(a} to . the ADEA would be governed by,.
. Furthe'r.,support for bp'iTOWiWsthe title
~ unpersuasive and believe.that the use different limitations perlods>moUr
. Vlllinntiitiims'periodis' found in the. ' .
[those limit~tion8periOdswould~e
opinion, these tWo'coUrtS reached
CivilseMce Reform Act (CSM) arid Us.
erroneous conclusioilsand ,the';;
'con8fstent~with the:a~stra:tive'
legislative·ruslory.ThEi CSRAprovides a
'Ocess thtttCOngreS8 intended tobe"
subsequent decision in Lavery v. Maish. 3o-day lirilitations period for federal .
ilized fodederalsector.ADEA ., .
918 F~Zd 1022 (1st Cir; 1990), I.:' . : ' '. empJoYeetofile.suit when a claim ofage
. discrimination isbased··on·an action
.mplaints.'The mostcioselyanalogous' convincingly rebuts and rejects. the'
atute' to thfidederal sector'provisions
reasoning of Lubniewski and Bornholdt.: thatis.apperuable to the MSPB. i.e., a ..
theADEA·fs sectioif717;of titleVll. .
'In Lavery, the court found title··Vll to ' mixed case htvolviitga Clil(m.,:of age ....
~OC believes that th~ Uinitations:
be a natural source for borrowing a· i ····
discrimiriation·.5 U.S.C: 770:J{h)(2).This
·riod applieabletociViI actioDsUnder . statute of limitations' as "the ADEA and may iridicate that Con8"ress.lntended or
Ie VII should be borrowed for federal Title VII share a common purpose, the .. ' Underatoodthat the3O-day limita'tions
ctor ADEA.1awsui.ts.· . . .
elimination ofdiscriinination iri the,
period from' title VII applied 'as wen to
Although the~ are differences .,
workplace * * ·.;~.tiscar.MayefITCo. v. ADEA.I"··.. 'ts' See". ep. N0.. ''':''
S'R'
969'
. .
.
. awsm.
tween,the federal sector. proVisions of . Evans, '"1 U.R750; 756 (1979): Although : 95thCOrig:~ 2d ~ss; 63;reprin~ed in 1.978
:le,VlI aridthe'ADEA.;coumfhave ." ' . there aremmordHferencesbetWeenthe' . U.s~ CdC'ong.'S:· ':.:I':"',:": N' 2'7'v.)·
.' 'A'UlllUl.· ews '~,:,
.
.
,......
0 e.
verthelesslOoked .to ;ritle VD;for'
federal sector pro'VisioJ;lSofeaclrstatute,: 2785p~Underthe:'ariti::d,iscnmin~itioii".':
ahigous proCedures to-us-e:in, federal ..,. th~ court?wasperauaded·that.t1lefare: i laws:ati;employeehas30' .' -, ~fMlnthe
,ployees' ADEA:I~w8uits."E;g;;(:. . ~ 'essentially Bimilar:and th.atthe;many
fuialagency aCti9iito:;iiii ,' .. "de!novi)'"
hl11an..v.'Ni:tkshai.m:~Q3iU.s.'156 (l981)j courtB:thafhavebo~wed 'thEr301aay:,'~ court'procee'ding~).'The 'CSRA:'also:' : ;J_
i
I in titleVll;8cti9n.plafutiff.iSnot', ': . limit frOm'titleVIl'were·correcllnie:· '.,/:
cOnStitute8anothe~'anatOgoui{8famtiior;
titled ,to;tnillby' fUi:Y ):: Ellis :v~:(Jnited-: . . coUrt:wa~;tin~'~oaSci:iDei:;Ii;~iJ ;;:~\ d: Bnutatioos,tha:HsiavaUabltf for xj?~,t r. u:;
Ttes Postal,Service.i784: F;2c;l835;l838< deliberat~ness'to COtigress' 'oinission of.. .' bonfoWin8~Dut tl:ieCOn~.ri:lission"::'~oe.sn"t:
nGJp 19~Na8in·TitJ~;:ViI.:actioll;'the>· .the 3O-day-limiUjti~ns period m~.ec~()!l ':'; bi!lieve'thaUtB 3O:daY1>~Vl~lon'woilld':~:
y ptYperd~fendanpi:rthe!tillEA':swt; ~3a and c.onclude~ t4ilt,the le81s1Q.~!e " , beconsistenf'viththlf9O::aay1iiiUtatidhs'
..
he·he:a~rl:lf:tli¢fedetal.ag~riCy):Sniitli·~ his to?, reli~d on:the'B~m.ho!d~ .and, "",' periodapplicable"to·.titl~Wc.ompla.mti[
)ffice, of I'eiyso(lel M(11lagement778· Lubmew~ki courts:W8.ll amblgu~us arld . ~. addition; the period forpl'j,vatesector
d 258;,~2J5thCir.\1.985H1ike title. VII. shed Dolight~ncongre.ssion~m!ent .' ADEA,chargeB'waschangecfby'theC!vil
@F;t\do~8not:allQ\V. recovery.of c.>::' ~ecourt·al~o noted that borro~ ~e Rights Act to thesanieOO"da'jiperiod:As
'lpensatoryd.amages)i.The.use o{ .• sIX~year P?nod of2~U;S.~. 2401(a) ',_. a result.we.believe 9Odaystobethe" .:
erentstatutes·ollimitatioIlS·for:·. . . would be.mappropnate smce there are·.·.
. t . limit '1' . :n" 'di'~;'
.
eral sector title Vn andADEA tases . . . ot1;ter relevant statUtory. provisions' more '. appropna e .: a Ions t'e50 'j'~ ..
[d leadtoa:~tenip4!to.split
specifically. geared 10 the claim a tissue~: 'The agency !lDdnon-agency. .. .
'.
lpillints a~leging thQt,a single·action·. c TbeeourtJound.that the 3O-daY',(,',r'" ." c.omment~r~ ~e?~",:t}:)On.o~lng the".
at~sbo.t11.~tatutes Qr to premature :' ..',' limitations 'period in the. CSRAProvided t~tleVH !lmltation.s peI1gd wa~,~e.~est
art~(romthe !ldniinistrative. ;':. _. furthere.vidence thatCof18r'es/!didnot.. bme"IJ~nod~forslllts b~se90n". .'
~ess in. or~erto timely file 'a lawsuit· intend to adoptthe six-year provision,'
admln1stratlvecomplamtsalthl?ugh .. '.
he ADEA issue. .~. " (':;.; ' . .
Finally, the court Doted that a statute of some d0l!btedthat EEOC: h?d,a ll thorlty..
wo·of tlieCh~c<uit.Courfdli!c.isions,
limitation is a limited waiver of:"
. to·estabhsh astatuteoflun~talo!;ls.a~d,
1hold(~rid Lubniewski. reach the.
sovereign immunity and, without a dear rec?mmended~ that;we awal! legtslatlve
;lusioii'that thesix-year,limitations
manifestation from Congress that it.·
act~on. EEOC IS not a!te~p~lng ~o· ..
ad should apply.·These .courts gave .intended such a radically longer:.. ;..
legislate ~ statute ~f lumla!u;ms.At the
rationales ·for their conclusions.'
l(mitations period (6 years]. it refused to' pre,sent,ti.me there I~ no gU1dance~for ..
:, they concluded. that C()ngress .
·impute.suchan intent . . ; . ; . . ' ADEA htt~antsandthe case law IS far. ,
:enono make the limitations period
In ,.s ection 114 ofthe Civil Rights.i\tt
fr~m,unam~ous"As, the.a~encrcharged
\oEA siiits.~e saine as that for title of 1991, Public Law No; 102-166 (1991).
With en~o~mg ~nd arumlllst?nng the
;uits because thecongressiorial.
Congress amended section 717 of title
.ADEA; ItlS entirely appropriate for
mihee. considering the extension of VII to increase the period of time for an .EEOC to ~nf~nn federal empl,?yees
\DEA to .federal employees deleted individual to me suit in court from 30
about their nghtsand to proVide the
day limitationsperbd from the bill days to 90 days after recelpt of a final _best available infonnation. Based upon
:JUt explimation. We do not believe agency or Commission decision. That
.. establish~d casel~w and the',ADEA;,
an unexplained omissiori should be 9O-day period will also apply to suits
. EEOC ~ehevesthat:courtsu,smgthe btle
trued .as.aspecific rejection..
brought under sections 501 and505(a) of VU pen?d have maiie the:more'"
..
o:;ondly. thes(lcourts interpreted
the RehaoilitationAct..Section 115 of '.. persuaslvecaseanc\apphedthestlltute
:;'s ADEA regulations IlS being "
.the Act'amendedsection 7 of,the;ADEA·;y of limitations thatbestservesJ1:l~~·':":< . '. '.
~stentwftp: th(sl;qri#14idon,becarise to proVi.(je·;a·~ipillar 9Q-day:stiit-peIiod.':-;· purpoS(ls()f.the.ADE.ft::,By p~pOS,~ngthi8~.~.
i
.
~g"ulati~c?~~o riotsJ~
lhons ,~... ..
and oecausEfth
.":.~ ••"! .;;;·;·"\:~~;"-(~·,1'-~
t:' ::: ~gula~~on'ail~ co~rdm.a'ing:.i~ ~.~i~.tq~,~
th;~ ~f .~ for.~I!tp~~Y~~!I:().rsta.t~;and l()c~d· :;;[10"
!..
. ' .., ,,1.Ii,30;,' go:vernments.~4pn:v~~esector,:::~:;~tn' '''l1l,Exe(:uhve.Branch;.tlie .C;omm~sslon~as :.
gtilijti6nt ; ~ ~ ~ ' ' .: employees 'Whohav.e filed 8'charge~with,:: also achiEivedtheadvanta:ge:tliaf:the·';; .,,',;
•...
'::'>,"-:
- ..
:"',~:.:!."
;.,~:~
t ... _
'., -,.' ,,~' . • • . • ,
• -.
- ..•.
,
.•
.
'.~
.
-
..
.
�· public will know theco~i8tent position EEOC has not issu~d a decision;. or (4)
motive cases, i.e~ those cases where
both motives or reasons were actually
oj the Executive BranclL-.We believe. . ,after· EEOC issues a decision on an .
that stating oUr opinion arid analysis of appeal. This exhaustion reqUirement is
knoWn and actually affected the .' ...
. this issue in the regwations is consistent the same as the title VII exhaustion
decision. If an agency proves.hy.clear
· with oUr'responsibility' arid Will prove ..' . requirement and will permit those
and convincing evidence that it ha.d
helpful to litigants and to those courts
complainantsalleging.age : •
some legitimate reason far taking the
discrimination as well as title VII
who have not consideredoi who have
action In question arnot selecting the
di8criminationto hring the entire
occasionto.reconsideitheissue.
complairiant but only disCovered that
In proposed part 1614. EEOC proposed' complairit to court at the same time. All. reasOn after the actUal decision was
that the limitations period applicable to comments received on this issue agreed· made, it would not escape liability. It .
may succeed. however. In limiting the
sults bro.ughtunder title.Wand the.. . . With the proposal.
CSRA be borrowed arid applied to suits .. K. Crear and Convincing Evidence.
.
amount of reUef.
· broUght under section 15'of the ADEA .' StanJard.··
.
.
byiridividuals who have med . .
.
u.
L. Interest
.
Cummtly, 29 CPR 1613.:271 states that
In the process of developing proposed
administrative comj:Jlairits. Where,
·however, an individual files a notice of . full relief should be provided to an
part 1614, EEOC considered proposals to
individual when discrimination is found require payment ofinteresl on back pay ,
intent lo.sue, EEOC proposed that the
'in discrimination cases and to proVide .
· two-or three-year: limitations period .
unless the record contains clear and
convincing evidence that the individuai· for awQl:ds of attorney's fees in Age
applicable to private sector ADEA .• "
lawsuits be used. because the notice of would notbave been 8electedin the
Discrimination in Employment Act
cases. The Assistant Attorney GeneraL
absence of discrimination. During the
iritent to sue procedure clearly comes
Office of Legal Counsel, at the .
· from the'private seCtor ADEA-prOcess.·' public comment .and interagency
and adopting that limitations period for . coordination of the 1981 amendments to Department of Justice advised us.
however. of hisopinion..that1,he Back
this purpose is consistent with the case .. parU613" published.at 52 FR 41919 .
.·law on borrowing statutes of limitation. .' (1:9(r1.), commenters suggested that the. Pay Acto£l966;. 6U.s:.C.5596. dOes not
Somecon:unenters obJectedto;our .. '
burden of proof be changed from "clear serve~sa 'w8.iv~·o.rsO"ei1Iign ilru,DWlity
proposal·ofthe.",o- Orthree.::yeat· -':~ ; andconvincingevidencetOto-:'a
for thosepurPose~~r.~~w~·: .'
pro~~~ pro~.I.l61:4,501that ..
statute oflimJtatioQ8 for thOse persons' preponderance. Of the evidence" .
wbocbOO8~.to me notice' of intent to 8ue·· standard. Subsequently. the Supreme
iriterest on.·ba,*.. .. YJJlay.notbe. .... .
... pa
rather than: me an administrative
. Court iaaued.Jts d~onin Price .
,-_.I
. ~.
.
complairil They argued thatNaksbian . . Waterhousev. H6pki,nti.l098.o.. 1775 . ::~~:~:~~r:::::nj~ation
prechides use.of.this limitations period"
(l989).Jnwbicbithetd thatan employer .. . p y - ' .' P,re '"
. .. .
.
, . that It" too ",hort and'that.~ should . .' ~ avpidliability.and·henceany relief. . cl~~l,!tn;~(e}.remaiDed
'.. awaiHesialativeaction:.in Hghi:of these .:. in a: tnixed motive ca8e upon showing by . unc;hanged frouiJts, ~terpait in part
·,commen~We.h8ve decided 10 eliminate a preponderance of the evidence that • . 1613; that is.the,8~torney·deea awards .
any discuSsion in the·nigulatiOn of the
'. the same determination would have.'
=::l~:==li~ti~~~O:t:_
appropriate limitations period for .'
been made even absent Qiscrimination.
by title W and the Reh8bilitation AcL '.
bringi:n8 sUIt after 8Mn8 notice of iritent .' ProP98ed I 1614.501.contained the same
' .
,·.tofile andmerelycautionpote~tialclear and convincing evidentiary..
Some commenterssuggestedtbat the
plaintiffa .tofilea8 soOn 8.Spos8Iole after 8t~ aa.11613.271.but EEOC invited Department of· Justice~a opinion Is .
incorrect and that EEOC.should award',
the expiration of the required waiting ". comment on.whether the Supreme. '..
, period.
.
.
Court'. decis.an required any change to' tnteieat on back pay and attOmey'. fees·
.' ...... "; . .
." .', ; ; . . .
thatstandard..
.', . ... ' .
on ADEA complaints. ·EEOC asked .the .
J. Eicha~st!ono!&:medie.s U;nder the
··:some·ligti;Dci~eiitersargue~ ~t AttOriley General to ~ider;the' .'
ADEA
. Hopkins required a change to . . . . , ... Assistant Attomey General's opinion.
.TheAttomey GeJ]eraJ forwarded the
.'In § 16t4~(b). EEOC prOposed to· .•. preponderance of the evidence. Other.
CommissiOn'. request to the Assistant
address the exhaustion of remediesagencycommenters and most nQQ
'. agency commenters believe that no
Attorney General ~ho notified the
problem raised by the decisions in .'
. . PurtiJl v.HaITis. 658 F.2dl34. 131 (3d . . change was necessary because Hopkins EEOC that be was adhering to the
Cir. 1981).cerL denied. 462 U.S. U31concemed proofatthe,liability stage
. conclusion of his earlier. memorandum.
. while the regulation.concernsproof at
We note that the Court Of ApjJeals for
1983; Bunch v. United. States. 548 F.2d
336.340 (9th Cir. 1977), and other cases.. therelief.~ and because the Hopkins .the District ofColumbi8~t1Yn:ded
decisillllitself.cited anddistinguisbed
"against the Justice Dep8rtlrierit's"
These cases bold that once Ii federal
complairiant under the Age .
our regulation on tbisbasis.We agree
position. findirig thatthe BaCk Pay Act
that-the Hopkins decision does not
waived soverign immUnity for the award
Discrimination iri EInployment Act
'. of iriterest on backpay iri emploYment
iriitiates administrative procedures, be
require a change in the regulation.
or.she mustexhaust these procedures
Hopkins relates solely to liability iri
. discrimiriationcases. Brown v. U.S.
mixed motive cases; its does not affect
Department of the Army, 918 F.2(i..Z14
before filing' a civil action. As •the
agency responsible for interpretation
the standards of l!...roof applicable to
(1990). A few commenters alSo noted·
and enforcement of the ADEA in the .
. liability or relie(in siQgle motive cases.
that the proposal went .toofar when it
We recognize that the re8uJatiOrl will be stated that iriterest'maytJ,ever be paid
Federal sector, EEOC believes that a'
.complainantexhaust8administfative.
applied most often to determining. .
on back pay~waid8Underpa.rt1614;
remedies either (1) 180 days after filing a
whether class members. are. entitled to
since sovereignimmuItity. bas been' '. '.
· complairit (the time per.iod during which
iridiVidual relief after a classfindirigof waived for soine' agencies; e:g.:;the '.
the agency.isre~<ltocon4uct a· •.• ' discrimination..but it is also applicable
Postal SerVic'e.:PUrtbet.seCtlonlt4bf .
· complete investigation} ll;theagencyhas to iridividual cases where.therehas· .'. the Civil'RightsACt 'oh99:i.·PUblicl.aw···
,not is,sued a d~ci~ioD;,(2) after a,final '. '.been·afindlDg.·ofdiserim.inatiolL:'" . . . No. 102-:166 (l~};'a~enl:l8.~~bCtion;rii> ..
decision by the agency.(3) 180 days
. We.also:.believe thatHopkinsonly
.i of title vn.toprovidefor;the payment of..
.after.filing.an appeal.with the EEOC..if,., ,applies to contemporaneownriiXed .
interestonbackpaY:Coriseqiiendy.ilH~···
�regulation provides for payment of
in,teJ:"ejit where sovereign immunity has
been waived.::','
'., .'. ' , "
,
".
'
.
.
Section by Section An.a.l.ysis. , '" " ,
.
, " .". ' "
..
be read to include acomplaintoL~'
retaliation;.,
'
Sectib~;lo:ifblr4)<'
I' :II'
An agency', .re'qu.ested'". that· we 'de'fine
.. perscinan'd the touns~lor. Severa( " ',', .
commenterSrequested that the section
. be' Chang'eo to'allow for extensions with
' the approval of the BED Director;'·
'"
'
another commenter as ked if th
agency
.e
. must agree if~e complainant requests
ari extension. We are clarifying the '
. section by,replacing "counselo,::' ,With
"a8ericy~", 1.'he section now requ~sthat
both tllecomplairiant and the ag~ncy
(thrOugli the EEO Office. not the"
',',
' counselor) inustagree to an extension.
,In~d~:liti~n:'t~th~:~iructuralc~iiges
"unit of the JegislaUve and,juditlal."· "
and'significarit issues ,noted abi>ve, we
branches" for purposes of coverage
considered comments seeking'D\lInerous under this part. and recommended that
changes ,to the proposed regulations and only competitive service positions in .
ha ve adop.t~d manyof,theIa TJie PllbJic ,these units be covered; .we have ':, ',::,
commentS'contained hundreds of ' . '.'
concluded that the question isbest left,
commentS of an editorial nature or:of!, for case by case analysis and ,decision,
minimal general interest. 'we-cOmiidered 'and, therefore. dedirie to include:a
allcomments and made many changes
definitioriin the regulation.
"","
to the regulations based on those
s·"
~ '" "'d"far; .
"ts,.'
ectloh l03 l c:l an (':I
commen We h'av·e·.· not deta'l'led every
change or decision, not fo make a ,change
The Commission has reViewed'its
".
propo's'ed .~.lati.on, iD I.ig'ht ofEqua.1 '
.
in this analysi$~ We list below. oli.a
•"IS""
section,by sectiim.hasis.those "
Employment Opportunity Commission v.
comments and changes that require
Arabian American Oil Co., lllS.Ct.·
1227 (1991). The Commission believes,>
explanati()D or,areof general public'
interest
..
. ' ..'
as did the Civil Service Commission. .
that the statutes prohibIting'; ..:, .
.Section 102{b){3).
discrimination in federal employment..·
Section 105m'
An,agimcy in.quired wh,ethe,r the
provision for an ,extension applied only,
'
d '.
,".,
d ' '
'
to a, ep¥tment~ or agency-M. e .
'alternativedisput~solution(ADR)
. process, or.included local ADR
.
.procepuies:The regUlation is wiitten·.··
'broadly]o .cover anyADR procedure,
" .
,
.d '
whe~~dn\~ local ()ragency-wi ,e.. .'
Section 107'· ,
.. ;
w;:;~s~cir~~e~~:::J~~~~~f;~' ,:~IU~~~~:~p.~t~:!:~l~~~~I:;:Z~ . '\fv.~cii~Yk.;cli~ed.thi~tle'cifthi~'· ..
Emphasis PrOgram'¥anagers'to ~,ostC '; .' overseas;,The legislativehistorf'of the:'. section from,~·R.Elje~ti()1l8 or,' '," ... ,;
liste" iIlthe'reguIa~o~'Tlie:Offlce' of ,. ~ . statutescl.early;erivisio~s:CoVeI'a8e'of.\:Cancellation~ of.~omplalrits·' to. c,'· .
Personnel Managthiientc,ommElJliiid' oil ·: overseaseIIlployees; and there is no' . . . ':, .·:qil!inis~~sAf Complaints,~' .'l1!-l:!ch.-ange
the provi~ion~rid·iiuggesteqth.at iibe .. ; possibility of confli<;tWith foreigh laws) shpplifi~~~~~eclj(),~. " , . .1'.:' , "
changedt,d provi4edesi8itatioilf?f'1l\l~' '. ThiscoIii::liulion is 'bolstered by ';\",', . . . :~ ~I,:,t,(~~,.1f't,(W;;;;-:::x/r
',,~~L>
program ti1im:~el'f!:?s.m,Il¥'~~fl:!.quire'~i" ~ng'ress' 8pe:C~b covetageofciyerseas!
. . . '
b:r:OPM onhepa.ro.c~~,~~Xf~';~~ '; .' .. employmentm,sElctibn:l09oftJuq9!p.:;' . ·.11U:s,sec,tionp(()vides for,di~missal of
.
'. .'
.. .
chang~d th,e"p~~~l~.X; ~O}~:uc~;cl,-~~~)haJ Civi};Right~ Act'!;;;.f{~'.',iJQ;n;;";;I,Jm .J' " . ~a,~:~!:.~~U: ~~:~~~},~t;:~:
In response to a COmnientreceived~:.
during the public 'commentpeiiod; the' ' has!>een:decide,dby fheagency or: . ' c
may be necessary. ~;additfontotholle'
ComInission included an' explicit;
. EEOC~ Inresponseto'a comment;,,·.
, exemption from 'this Pat'ffor uniformed: regarding,classqoIIlplaintsand. this.·
· listed as'examples iri the reguliltion::..Othetcomine4ters obj~cted to the. , members ofthe inilitarydepartmElDts' ..' sectiol}.',we:,note;thatU ail agency., ' '
.
provisioll ,in the .reguIatioll ,that the EEO 'listed in 5 U:S~C.':102/I1ie ~xclusion is:" < . 8,CCt;lptsanadininistrative judge'8 ;,
· Dii-ector be under theimni~diate .. ,.. ·:':· consistent with/ohnson v.HoffrilGiI;' 424 rec~npnendationto accept a class
supervision of the head of the agency. .
F.S,,!PP. 490 (KD. Mo: 1977).a/fd sub .• '/ complaint. individual complaints .
ThatprovisiQn has been in the federal;' nom., /ohnsonv. Alexciride;;572:F~2d:":" concerning the class allegations flIed
sector regulations since' 1972,Moreover," 1219(Sth .Cir.); cert: deniedi439U:S: 986' '. befpreor arteracceptailceof the, class,
section 1614.607 pertnits that individual· (l97S).
.'
. '.. ', .
complaint by class members are .'
to delegate that authority.. Intimate:
. '
... ,
subsumed intoth~ class complaint. and
responsibility. would remain. though.
Section 105{b), .'
should not be dismissed. The'
with the higher official.,
A commenter suggested :that we ....
COmmissiOll believes such a: provision is
rights
f
Provide thatthe Writte,n no, h.'ce of ng'hts " necessary:tci preserve ,indiVidual'. d
Section 103I'a)' "
.
and responsibiIitiesrequ'iredbythis c
wh en th e c'1 ass comp1'"
amtls d'Ismlsse
In editm8theh~~lr,u.le.Westatein"
section niay be sent to:the:aggrieved;"
withouta determination binding the'
thiss.ebtionthatco~plaintsalleging'·
person immediately folloWibg theiriitiill individuaL, . ,.'
;;
retaliation prohibited by title VUothe'.. . counseling session if the' coUnseling ,:'
Section'107{bl.···' ..
ADEA. the Rehaliilitation Act and the " session took' pli:1CeOVer the telephone.;
"
Equid PayACtim~coiisidered to be.,
The section requirescoUilselors to' .
In response to a comment. we have
complaints ,of discrlmlnatioQ. for
advise individuals in writing of their
added the da'use "and is not like or .'
purposes of this part {Asiridibated in
rights and responsibilities at the initial
related to the matter(s) brought to the
§ 1614.101(b). a complaint of retaliation. counseling sessioi:L We' agree.w-Hh the"
attention of a Counselor" to clarify .
can be predicat~don opposing practices. comment and intend the section; as"
dismissal!>f complaintsorissuesthat ,
· madeunl~:wfulby these statutes a~well Written, to cover proViding the notice , havenotbeen'raisedwith a COunselor.
as participating inadministrlltive or .'
immediately fol1owingth~ cOUnselin8"
The Comlnission agreeswiihthe lhieof
judicial proceedings wider Ulose' .,' ".. session in thosecircumsbuicies. , ' ,
cases fom:iwingthe holdIDg m
SaIichez
statutes.} The change is purely e d i t o r i a L , , ' ' ' . ; , ,; •. " " v o Standard Brcin(fs,431' F.2d455 (5th:' .
.' in na ture, 8nd';do~$p.otliffectthe,.: : . . . Section 105{e) ,c . , , ' . hi;~(';;'~",
.' Cir: 1970); ~t bas,e~ cif<Usciim!#Il~~~n , '
coverag~ 0f.~e,t~l~~,~gIlas :8: ·prohibited,
'. We received Ii ntimberof'coniIrients{;' ~". (e,.g~. riu:e;"sexijlge,nandicapJcanJ>,e" '. .
,practice under. the statutes and the,:" . ' .. onthe.prOyjsi6n for'~xtendirigthe;;.'! "i·:J,'ihahgedf.or'aa~e:d.,clUiing:tlle·co~"£pla;int'> •.
reiriilations: wheneveraniregllIatio~ ini .. counseling sessiorifor':iinadditiori'al : •."<. process}W ~ Jiaye added 'aprcivision, fqr, .'
.' thi8,p~rfBpeaks';O'fa'c()iriplamt Q{'-.;" ( 'period of no more, thari60aay8~: upon')" 'rerriiulding like.:or relatedissuesii#',:':/ "
'dls,crlmi~aHonJhe~eference should also agreement between the aggrieved , ;.
'. counseling and otherappropnate action"
agencies are,pernutt.edbtappomt"""'··
Special~phasis Program Managers 'as'
�12643
regulation provides is necessary or
when such an issue is raised at a later
Section l08(e)
" ,,",'
time. The agency retains the authority to advisa~le; ',", " , . '
One of the intelligence agencies', .
disiniss any Such issue for the reasonS' .
We also want to clarify how the .
requested a provision for a Unilateral
' dismissal forJailure to accept full relief , extension of the 180 day agency
delineated ,in this.section.
,
Seclion 107(e)
operates. If anageney makes a certified processing time of 45 days to allow for
. sanitization of the files. We have added
We have rewritten this section
offer of fullreliefand the complainant
a sentence in the section providing that
providing for dismissals of complaints
rejects it the agency shall dismiss the
intelligence agencies may unilaterally
that allege discrimination as,to proposed complaint. The individual can appeal
extend for up to 30 days to sanitize a .
personnel actions to include dismissals
this dismissal to EEOC. If EEOC fmds
of allegations of proposals to take' "
that the reliefoffered by the agency was , file. provided they notify the·
complainant of the extenSion.
personnel actions or any preliminarY
not full relief. EEOC willJssue an '
.
. Section l08(e}i:md
steps to a personnel action. We intend ' appellate decision reverSing the , .
the section to require dismissal of
dismissal; The decision will remand the
complaints that allege discriinination in complaint to the agency to be processed
A number of agencies asked for
further in accordance with the normal
clarification regarding processing of
any preliminary steps that do not.
without further action. affect the person; procedures unless a reVised offer of full
complaints where some. but not all. '
for example. progress reviews or
relief complying with EEOC's'
issues are accepted for investigation. In
improvement periods that are not a part determination is made within a stated
part 1613. com~aints are split between
rejected issuerand issues accepted for
of any official file on the employee. If .
period of time. If EEOC finds that the .
the individual alleges. however. that'the relief offered by the agency was full
investigation. Complainants may appeal
relief. it will affirm the agencY's' .
t4~. rejected issues independently of the
preliminary step was t~1::en for the
rest of the complaint. Part 1614 Will
purpose of harassing the individual for a dismissal of the complaint aildthe
proh~bited reason. the complaint cannot complainant can 'file a' ciVil'action for a
operate similarly. but will not provide .
for splitting of complaints. Under part
be dismissed under this section becanse determination of his or ~er .rl8htS. If , '
it has already affected theeinployee~'
EEOC affirms the &gencY.'s disini,ssaI.. 1614 agencies will notify complainants .
One agency suggested that mootness
the lig'encYbas.the authoiityto ~ffer .. of the issues that are accepted and those
that are dismissed. If the complainmt .
be explicitly added to the regulation. We the relief but it ~ not,~qu4"edtQ do so..
wishes to, pursue any of the' diSmissed
· haveadopte<l ~tsiDggestionand ,.:i' ' W e have lengthened the time,.. ' ""', '
included the exp\icltprovision in.this .
issues. the complainant woUld have to".
8ubsectioo;,Whilemootness. could also: . provided in the section for complaii1imts appeal the dismissal within 30 days of.
be classifledunde~ failure to state a ."'.. to consider. certified offers of full' relief"
receipt of the dismissatWheit an appeal '.
claim. it.isad,ded, to, this 8ubsectionto::.;, from 15 days to 30 days to 'enable:,: >. . is filed. the. time limit for p,rocessing the "
perm.i.t,it;to.beraised,throughoutthe.", ..... complaiiiantStOseeklegai adVice on the' remainder of the: complaint~illbe· J,.
, complaint process.:siJiee mootness can
sufficiencY ofthe offer offulli;elief; As ..•. suspended untUafinal COmmission ,r, ' : ' .
occur thi'ough'out theprocess~ :'c' ,
. discUssed in the EEOC Management"
decision is i s s u e d . '
".
Directive•.with each offer of fUll relief
Section ,107(g)"'" . , . .
th
..
. '.. . h , .. ' . f tli
. Section 109
tn
\V~ h~~e ci~~dtheintent~f'this ,~;r:a'!;h¥::~:s~b~°S;:~~m:dies
take~
. The hearing proviSions are
section!:It provided that a,n.agency could, that may: be availilbletothe,fudiyidual. . '. substantially from §1614~406 of the
dismiss for fai,lure to. coope'ratewhen".. .' Further mrormationapp~ars'~'the ..' .
proposed regulation..
Secti0 109{e) ..
the c~mplainant failed to '~satisfy~~ a.
. EEOC Management Directive.' '.' ,
1l
written request to provide informati(:m .
.
"
Many: cOlnmimters eXpr~ssed c~n~em
This provision~as formerly in
or to p~cee4W.eund.~~d that some generally'With theprciViSioDs in Subpart
, complaints ha~e be1'!~ ~ed. ',- ",
A that referencedmanagementc:liiective. proposed section 1614.406(c). One .', .
instructions. We have retained those
becaus~ agenc!es;behevedth!lta..
'commenter suggested that the provision
complama~t did not fully sa~ a gIVen provisions. We woUld like it) clarify'that for statements setting fo:rthmatEirial '.
requesL ~IS result was never mt~ded. the management directive
not
.
facts believed not to be i!l genuine .
The ,prOVision has now ,been modified to contam' tru ti
'" ft...:ll ..... • t a1
dispute in this section should. include a
state that a dismis' a1;' nI
. t
ms c ons reg... ~ m em
re.quirement that they be filed at1east.15 '.
·
thi b . '. h ,sth 180 Ylapprop~~t: structUre of agency EEO programs and
on s aSlSW. en e comp amant 11:LLllj, er
LW d
tbeli
't .', .... ,. days before the hearing. The
e 0 no . evel.lB . . administrative judge can seftimelimits
to respond to such a written request or P sOOll~
te to in~ud«: the manageI?ent. for submission of statements, as. :well as
his or b,erresponse does notaddre'ss the appropna.
agency's request.
'
. ~ctive ~tnJCtiot;'S m.thetegutation ,for discov,ery. as
..
ofhis"or her,.: ."
Itself. Consistent Wlth statute'and
.
Section '107(h)
Executive order. the Commission issues .. ontrol over the hearing process. We ' .
c
. One,agency request~d that delegation regulations; and instructions in
?ecthlme.egulther~fore. to provide time limits ,
mer
a on.
'
man agement directl'v'es'. It'w'ould not
of authority under this section for
•
serve the purpose of these regula tions to' Section JiJ9{fl
certification of offers of full relief be
expanded~ The section Only allows
. include the interpretations and
Gne agency and several ouier .' '.
certification t.o,designees reporting..
instructions of management 'directives in commenters suggested that the heating
directly to the EEO Director or the Chief the regulations. Management directives
section in proposed § 1614.406{d}
".
wiU.contain instructions and guidance
Legal Officer. We purposely do not
contain a.provision ~equiring transcripts
provideforfurtheidelegation of ....... that is nonregulat?ry in riatUre:~"
. :. of hearings. We have added this section.
authorityJoreertificationofofferS of full' SectioIJ100 ,'., . . ' > , . . ' . '
to provide. as in part 1613. for,,;· .: ,,,
· relief because weiniticipate that· y.,> ,
. '. .
';.
. 'transcripts of hearings. to I:>e,aminged., .....
· agencies will use the pioCedute <~>.
The ,investigative provisions combine: ;. for ancipaicl for by the agencies.·.: . (:; ::~, ".
'. '. ..inIr~quently arid:w~.d():· riOt beUevethaf '.' some of the proVisions or.§ § 1614.106· " ,:;Agencie'li,cur1:'ently:budget(orjuiil:.<
"dele8atio~:~Jow tIle'level for.Whicll'the·· and 1614:405 of~theprOP0gep; niIe~'
.. : receive. appropriations for:tr!Ul~cripts.~ .' . ,.
will
part'
::, .'.
�,.' . ';"'/-' ;~"'l.,"m'''j,!'
','126«'.
.·.;FederahRe8ist~rh;VoL\57.{No:>70/:;FridaYi'~Apritl0~-:i992:(Rules~!ftid;R~gU1~ttoh~
... ?
while EEOC does not. The requirement
handicaps. We included the phrase '~or
occms upon tiling of.a written.. .' . ".
. that li\gencies ccmtinue to do. so under
other examining authority" in section
complaint Election does ilotoccUT.v.rhen
an aggrieved perilOncontacts.a ."
.
. part ~614 is consistent with.current
'203(d)(1)(ii) for those agencies that are
practice. :-:
. ..'
'.
not under OPM authority. Corisistent
counselor because counseling proyides .
the person with information that allows
with this change. we added·aprovision
· Section 201(c) .
in the saine subparagraph to make clear him or her to decide. which process to
. .
.
. We moved this section'covering.·
. that OPMmustshow thaino alternative elect.
exhaustion of Administrative remedies
tests are available for those tests it
Section 301(b)
develops and thl!t other agencies must
under the Age Discrimination in
Employment Act from proposed . . '
make that showing for tests:they have.
lnresponse to a request Jor'
....
· §161U10 to201(c). The proposed .rule . authoritY to develop; One cOinmenter
.clarification. this sectionapplies both to.
contained two separate sections on ciVil . asked whether.a liniited appointment is complainants who are covered by .
collective bargaining agreements that do
action rights. one forth.e ADEA .. .... a test. This section applies to tests or
not permit allegations of discrimination
(§1614.410) andonefgr title VII and the other selection criteria and limited·
to be raised in the negotiated grievance
Rehabilitation Act (§ 1614.409). We have apjlOIDtments are not selection criteria.
· consolidated the two sections .to
. As a result, limited appointments are
procedure and complainants who are
·simplify .the regulationand make it clear not povered by¢.is provision... '
not covered by collective bargaining
that the civil action rights under the
agreements. In ,91her words. the election
three statues are the same. .
Section.204 .
prO'v;sion of sect'ion 301(a) applies when
Corisequently. we moved theADEA.
As we noted ~der section 107(a), if
S. U.S.C. 7121(d} applies and when the ..
exhaustion of administrative remedies
an agency accepts an administrative
complainant is covered by a collective
section to§ 1614.2Ot.We did not make. judge's recommendation·to accept a
bargaining agreement that permits
class complaint, individual complaints .' allegations of discrirriination tobe
any changes to the 8ubsta~ce of the .
, section .."
.
.
concernIng the class allegations filed by raised in the negotiated grievance.
. "02
. class members before or after ..:. '., .... procedure... ....
..
.. . .
'. '. :.
. S ectJOn~, ..' . ......
.
;~cceP.·tim.·.ce'o.-fthe. cla.SS.C.om.'plaIDt are .
. ~Severalagencies cOmlnentedQnc,ur: ···.·subsmnec:fWitiiiliiliedass cQmplaint;
. Section302(1i), .
,'.' .
...'
· inchisiollof·EqtiaIPay·Acfromplafuts in_sncI: sht)ul~;I1ot~~<;tismisse(L!·: .
'.
'This sectio~provides for eleCtion. .
·~:~k~~~:;t:t!;~~tn;~~~~:~<u~:·;. se~ti9:~;~~f(#i·::f·;L:'(:.,~~::, . '. . ' .' .EEO process: Acommenter requested '..
~;::~~~:::::~:~~t:i~~~!~~
processe<i:bYEEP.::rustrict OffiC~.131~".,.·. Ane,:", •.sup!lection{hU18sbeen added'
8ceordanceyVitha managemerit .~'.' ': .. ,-. t9 incorp(J!~}e~e.~~Ildm~~tsJothe:. . th!itagencies be reg~ired to)ruqrm. .•.• ; ..
. directive', EqualPay ACtc0inplaints; ".~ '·,'Rehabilit¥tioI.lA~~II1:ac:le.;bys!3Ction 512
employees ofthe rigtinoelect.a~?~ '.'
". against'alHederal ageriCies.'inclildiri:g:~ ·····ofthe·A.!nencans'WithDisa.bilitiesAcl:...',. three processes; an MSPBaPIleal; the .
. ;..the Pt>stal'Semoo; the'T!'inness~e Valley-: Tha:t provi~~on:e)C~lude.8:CUrr~Ilt;users of.. section 7121(d)grievluice prOcedure or.
AuthotitYandthePostal Rate"- ... '.' illegal'd,11igsfrom the defiDjticm.ofthe.
an EEO complaint. Counselors must· .
Cominissiori. Will nowbeprbcessed in
temi fudividiialWithhaQ.dicap(l!);~The .' inform employees of the tJu:~e options .
CoIl1.l11issioll·mtendsthIsSU1Jsection'tq.. and theelection~quirem~l1tlh.We .. ' '.'
ilccordancewith part 1614 in the .same
mannerasallotherfEideral sector..'. '
be mterpretedinamanlii:lrc;onsistent ' .. '. addedcliirification at the end: of the •
c::omplaint~ covered· by this'part;We :.with-§,1€)30.3taHc)~fUi~:qQi#rliision·s'· section for those instances' uiwhich a .
. believe inclusion ofEqual Pay Act .. ' regwations'implemeiit.i.rig title;~.of the ' .. person filesa InixedcasElappealwith
complaints in this part is warranted
Americaris, Wit4DisB.lJili.ties)\c( ~9 ~ MSPB and MSPB dismisses th,e appeal.
beqause any Equal Pay Act complaint is 1630:3(aHc), wi t9' ~ti~9rresporidiIig.
as nonjunsdidionaI.Uthe'individual· .. '
· alsoaUtle VII sex discriIIrlriation ..... c. .
. secti.onsofth'emterprEltiYe Gu,id
8l1ce '... filed the riiixed.case appeal instead of a
complaint' . . ,:'·':'i'· c : •.. ' .... "'accompanY!h8those'regulations, arid..
mixed caseeomplaint; agencies are
Secii~n 2d3(~){6J ' . , .
with this section. .. ... . .'
requited to inform the indiv:idual that he'
. One commeriter requested that the
. S~iti~~ 204(d)(3j . ' " .' .......
or she may contact a coUnselor within .
defmition of qualified indiVidual with
. When ldlegation con~ainedin a
45 days and that the filing of the mixed
handicaps'include a requirement for •
dass complaint. was not raised. -in . . . '.' case appealwill be deemed ~o b~the
.
'"
',..
date the individiial initially'cQntacted
meetiIlg policy-basedcriteria~s.well as' counseling, 'but tlie' failure to raise iris
tJ:ie counselor: If tbeindividual fi\(~d the
experience arid ediication:criten~;We .. satisfactorily. explain~d under this <. ,.'
.. appeal 'with MSPBfromanagei:tcy's'
did norchangethe"regwationbecaiise . section. the allegation ;will.bereferred to
fmal decision on the mixed case .
we believe that the ~quii!lmenttlia~ im . a counselor.andthenwill be.+:
.
'ap''plicaototemployeebe<ableto , - : '. C.on~o.li.d.at.edwith.theong··inal class .'
. complaint without a hearing;. the agency
.' shall issue the notice reqUired by
perform the essential functions of the
. complaint.. .
.'..
.'
.
§ i614.1oa(f) and give the individual the
position in question inchides meeting'
S t·· ;;04'k·)(.3,i··
. chol'c'e'betw'een a h.earing and an .
1
eo If!fl.",. I'. . J,.'.,
,...
. egi.timate policy-based c.riteria ...Th.e
.
.
phrase "essential functions" includes
The 45-'d''.. "time Iiinit' in !hi' . ' , immediate .dedsion.
ay .
.ssechon
, ....'
agency-established norms of per~onal . . . d~fining th~,peri()d f<:lr~hich. class-wid.e Section 305(a)', "
demeanor and coriductin additioll.tojob . discri~atioJ;lCB:nbeJotJ.lld \s.l}ot
.'
" . ' " ..." ' .
'.
performa'nce standards. '. " .
intended to l~I11itJp.e~ t~()~year time ."
A.'ii. agency. noted ili.at. tp~lp:day filing
••..... ' i
..' " ' , :
.
. ... -~. .
" , periodfoi'lvhichbackpay;.caJ:i.be.
deadline'fQroppositions,topetitign!lto .......•....
· Sectiop203{dj .
'.' ':.
~ .. ' reco,-:,eredby ~ clas~ member. . '.
EEOC Jroni:MSPBdedsions
mixed '.' .
an
i
" ,
on·
.'1Il!d~~6:~~::::S°tm~i~~~;?~~X;~. .-.:,.:,,~cij~~~~r.·•. ,.":( ,', . . ;.·~;;·<i'~i':~',' ',i.:t'I·;·" '~d~l:·. ·ili;d:r:;r~~;j~~fW~~t~;{~~li:,;.
.
. prohibitingthe'liseofemploymentte~ts :'~'; Thl~~~«b~J:l.p~~?4~1I
.g~o'?;:;f: . mostothersuch:deadhn!,!s;~JroW~,r.',,; <.
orother selection 'critenathat fend'fo ":"beh~'e~nthenegotilltE!c:I '.. _se i.",,}: .' redeiplVlleilavelerffueidat~Qr!leryice,;!
:screen
qti~lifierl;indiviiiiials'witli":"process a:ridtheEED :cornplairif process '. pro~is)oii ulu::hanged be~ausethe statutp .
'out
�.
,~
,
Section 501{b} .
requires that the Commission determine Section ,W5{b) .
.. :. ~:
-:",
. . , within·30 days whethertoroDsiderthe
. OFO employs the ~'de nov9~' ~tandard . we'ael~teci' the second referim~ to
· MSPB decisjon~S U.§,~17oi(b)(2l..<.
·the deaiarid ·convindngstaD.dard.irithe
of review when issuing decisions on ..
middle of the~ection l>ecaus~ it is', "
Section 402 " . . '
appeals. A credibility determination of
an administrative judge that is based on redUndant. The firSt referimce tO,the
The timfdimits for niLngappe8Js has
struidard blth~ :s~ctioii applies' alSo to
the demeanor or tone of voice of the .
been clarified by addiItg a new . .
the back payprovision. We wo ' .'
witness. however.
be accepted by
su.bsection·indicating when the tiine .
changed the word "made" to "declined"
limits begin to run. Consistent with the OFO unless OFO finds that the '
in the last paragraph ofsection 501(b}(1)
determination was cle~IY erroneoUs•.'
recent decision in iiWin v~Vetertms
e.g.• where documents or. other objC(;uve in order to m8ke thes.ection internally
· AdmillistrPtion, 111 S.(;t. 453 (1990).
evidence contradicts the jYitrieSs' story' consistenCAseorrectly stated ';.; •.....
·where acomplaiIiant is'tepresented by
'elSewhere~iD 8ection'sOi~
'agency's '.
an attorney of reCord, the' tline' for .
or the story itself is so internally.' .
. back pay liabilityiscut-ofi when an
appealbeginB to run JrilIIithe day when inconsistent or implausible that a
unconditional offer of reinstatement is
the attorney receiveS the rmal decision. reasonable factfmder would not credit
declined. not when it is made. Ford '
Where the complainant is n~t
it See Anderson v. Bessem.er City. 470
Motor Co. v. EEOC. 458 U.s. 219, 2J6:-39
rep~sented by an att~rney, .the time
U.8.;564, 575 (1985).
(1982):
, ,
.
periodJorappealbegms to. run from the
Section 406
day that the complainant reCeives the
Section 5iii(C){lj
final decision. Section 1614.605 has been
We have placed this section in
. An' agency requested that in this
revised to be coruiistenfWith this'
reserve and titled it "Time Limits."
section. which'coverS reliefinvolvmg an
provision.
Many cOIJUJlenters noted that the .
employee. the Comniission address the
Commission had not placed time limits, situation where ail employee voluntarily
Section 403{aj .' '",
on itself in,the appeal se~tion and
leaves the agency bcl'or:ea . ' '. ;
Commenteraexp~Sed.cOnceI'Jl.
expressed concern thatthe.absence of. discrlinin.iition ffudiDg18made:. We have
regarding the provision~;thi88ection
such limits was inequitable wid could .. cons'idered .thequestion 'and concluded'
for filing asuppolting st8.telIU!nt or brief
result in delays at the EEOC. Because, '. . that it CaDDot: be addfeSSed In:ilie' , ;: ...'
·with the'noticeohppeal!;Wehave;' .:,_
we have'chariged the appellate process
regulation. There
'some iniiiaiice8'~
revised the tegul~ti~tO provide in .
from the proposed part i614, w,e do not
which 8D.~~p!oY~'Il:!oluniw.iJY)eaving
sectlon 403(d) that'llDysupporting;,- <
statement or briefmusfbEi filed within , propose an appellate timelimitafthis>.. the ageIlC:.Y ~Qul~ .~t, off ~e ;:';f;~:;':; .
'.30 days orth~ dat¢<thE{appeaJ W'as"filecL time. The section will reniain.i'eservoo.,. . nondis.cri "?.iD,'!tory,PlaCfllDeIl1. oJ>ligation
tho~ mcaseitis necessary to hnpose and fill1:her;~ack lm.y,:lia.bilitY.,b1il:tluit.:
This s~~ri does ilotjeqwre thah
supporliiig st8tementor:brlef be filed. it atimelimiti~thefuture.<:: ..,·.·:·, i~:"'" :.~ would nofhOld tnie. for, all cases.We .. '
.have'rep1il~
tfum:;;'~~ctiv.e·,,· . '....
·merely .provides .miojiportnnity for such Section 407
promotiOn'~ :with':u.ondiscrimjnatory <
a fiq H no' suppai1ingstatement or .
In editing' the final rule, w~ hav~
placement~. to more faiQUully' adhere t() "
·brief is filed. theJi OFOwill declde the
the Commissi<~n's remedies policy and .
removed.the term reopen from this .
case based on the
recorda.
section and renamed the section .'
to §1614~(a~ ;', ;::,
.'
"Reconsideration.'; The chimge is:purely .Sec'tionSOiidl'; ' > . ; " ,', "';. ' .'
editorial in nature; we determined that
Seyeralagezi.CieS_ra~edobjections to "
that complainants .8erveth~.agency with reconsideration riaturiilly includes'
reopening wid that use. of both terms is: thereqwrement thalagencies caI1'Y- the,
the appealandsupP0rUn8atatement or
briefwhen.they'file Wwith th,e EEoc.·
unnecessary. The ConimissioI(hasnot
burden 'orprilVing failure to mitiga,te. '.
We note thaHailurelo serve the agency changed the proCedure in the section.
CaSe lawpIaceii the fBiIure to mitigate
burden upon employers. E.g..SeUersv.
will not result in automatic disinissal of but has simplified its appellation. •....
DelgadO CoiiununityColIege: 839 F.2d
the appeal. •.. ; : ' '. , .' .
1132.1139 (sth Cir.1988);Edwardsv."
Subpart E. .:. .
section 403{d}
We have similarly editoriaIized
.School Bd.• CitiofNorton. Va.. 659 P;2d·
The agency's req~in:eri( Bubriut
9~1;959.(~th'Cir;1981);U.s.v ..i.ee.Way
subpart Eo changing the. titles the:
. . . .. ' . '
MotorFreight. Inc.. 20 Fair EmpL Prac.
·
the c~mplaint file and anY statement'of
sub pa~f and of its sections~ We. reCeived Cas. (BNA) 1345, 1358 (10thCir.1979);
position itchoosesto subrilit
been
.
modified to provide that the submiSSIOn some comments requesting clarification Sn.ruois.·v • Unite.d Aii Lines. Inc.• 517
of the terms remedial action and'
~ 0-
'
will occur after receipt ofa reqllest for
.
.
th t h '
F.zd 387. 392 (7thCir~j975);.Moreover,
COITec tive action. among 0 eriIlgs.
evidence of failure toinitigate is easily
the file by the Office of FederaL, .
The changes are not substantive. but
obtained during the agency investigation
Operations. With the modificatio~ the
merely editorial in nature and are
,ordurlng discqvery associated with the
agency will be able to refer to the
o
hearing.
.
.,,'
intended td .simthpli~band clarify the
appeal number assigned to the appeal.
terms use m e Btl part. Subpart E is
Section 404
."
renamed Remedies and Enforcement. Its Section 502{b)
Ii. commenter suggested thatif' a
. sections are renamed Remedies and" 'T~o c~iiimenterli stated that the
Relief. Compliance with Final·····
reqUirement of temporary or conditional'
record is found to 'be inadequa te in a
grievarice. it should be remanded to the Commission Decisions~ Enforcement of
restoration iIi. the eveniof a request(or
agency: While EEOC believes that the " Final CoInmission Decisioris and ,"
reconsideration unprecedenteC( would·
supplemeri ta tion or remand ,provision < . Compliance \vithS~ttleIIlI:m(:::r ,"" ,b~: extremely diSriiptiveimdexceeds·. .
will be used infrequently, either maybe" -Agreements and Fin81PecisiollS, : i ;" .. ' EEOC;s' authority. The,~quiiement is ':,
used when a,discrimiiultioli' issue in a' .Section 1614.504 inthe,proposedparl
currently found iIi.§ i613.~7 and the '
negotiated grievance ilJ:a~pealed to·;::,· 1614 has been included',inifseritiretyin
EEOChail.decided,to'retitiDitfor..,;.,
PJ:UC.
.,'.:.
. .•.. "
. ~ 1614.503.··,
'.' ...... ;. " •• '.' .,., .
. reaso'nsof'eqcltY. .
"
.'.;
,
"'".
will
an
',i
.'.
are
'0
:
:the
«oo.sting
se~~n=f~'~ht~:E'0~~q~e~ent.
to'
or
has
is
�.i12641···
instructionsc()ntainedinthe . .' ..•...'
. '(14) Participate at the cOInmuni~leyel
(1) Advisingllie head of the agency
with other elIlployers. with schools and. . With respect to thEipreparation of .
· Commission·s}da~agementDir.ectives;
'.. '" (3)Conduct continuing campaign to . universitiesandwithother~piIblica:nd,
national'and regional equal employment
'. eradica~(lev:ery f().l'JI.l of prejudice or
. private groups in coOperatlveaction to
opportunity plans. procedures. •. '.. ' . .
· discrimination from the agency's
improve employment opportunities and
regulations. reports and other matters
community conditions that&ffect ;,",
pertaining to the policy in § 1614.101 and
.personnel policies•.pra:cti~es and. .
working conditions;" •.
employability. .
.
the !lgency program;
'.
.
.
.' (4) Gommunicate .the agency!s equal
(b) In order to implement its program.
(2) Evaluating frOm time to time the
employmentopportqnitypolicy and,eacbagency shall:
.
sufficiency of the toial agency program
program and ita employment needs .toall
(1) Develop the plans. procedures and , for equal employment opportunity and
sOurCelJof job c8ndidatE!s. without regard regulations necessary' to carryont its
reporting to the head of the agency with
to race. color. religio~sex. national...
program;
. recommendations as to any .... .
(2) Appraise its personnel operations . improvement or. correction needed.
· origin; ag~ or handicap..;and. 80llcitUteir
recruitmenlassistan~ on fl continuirig
. at regular intervals to assure their '.
including remedial or disciplinary action
...,.' .,' :
conformity with its program, this part·
with respect to managerial. supervisory
basis; .;.. ..•..
(5) Revie:w.evaluate and control
1614 and the instructions contained in
or other employees who. have falled in
managerial and supervisory ._ '..
.
the Commission's management
their responsibilities;
directives;
.
(3) When authorized by the head of
perf0l:mancein such a manner as to ."
insure a continuing affirinative: .. · , .'
(3) Designate a Director of Equal
theagenC:;Y. ma.lW1g changes in programs
application.andvigorous enforcement of Employnient Oppoi-tunity{EEO
and procedures designed to eliri:tinate
discriminatory practices and to improve
the policy of equal opport\Ulity. and· .. ; Director). EEO Officer(s), and such
provide ·oiientatiOri..~ and advice Special Emphasis Program. Managers'
the agenCy's program for equal
.
to managersan!i supervisors to assure
[e.g.• People With Disabilities Program.' employment opportunity; '.' ."
theirun~erst8nding and unpleIIleritation Federal Women's Program 8:nd fiispanic
(4}Providing for counseling of..
· of ~eequal emplo~entPIlPo,~ty L'.. Emploxment Program). clerical and ."
aggrieved. individuals and for the receipt
administra'tlve 8upportasmaybe '.
. and processing of.in,dividual, and class .
· policy ,and .pro~lI1:.c;: ,'. ;~: ,,3 ,,~; ,_'
· (61Take '~p~priate~scip~ ',H ,. :,' necessary to carrY out thtifunctl.ons ." . complaints of discrimination; and
acti~n,a8W,.qst;~pl.gY~~I1\Y!o:~~~~ngage~... descnoed in this part iii all ::'.< ., ...... d" .......... (5) AsslllingthiitfndiVidual i~
,.
discriminatoryl>racticeS;';;>i ,..i . ·
orgaruzationalunits of the agency inial complaiJltSarefairly aJldthoroughly ..•
. (11Make rea80nableaccomniodation' aUagency installtltioris~theEEO . , ; ' investigated and that final decisions ~
to the'religioUs needs of applicants.and;.. Director shall be imder the immediate
issued in.a'Wnely manner in accordance
with this part ;,.i::;.,,;., :;,i.,:. .
· employees ¥lllenl~~seli~n:unodations supervision of th!,! agener Iie,a.~f:·'·;'
can be Dlad~WithQu.tunclue hardship on '(4) Mak'ewritteilmat~riiwra:vailable '.' .'
(d) DirectiV s.'itiSti"1ictl ris;-.formsand .
...th.e(8b),~~~.·'.·.;e'.S8rea'.'. 0U.~
e
'.;na:.Ei.,agb'l·"e~.··.a·.~.cco' . ~:mod:;'.:::a;ti·:.:o··~-n':., . to all employ~es aridapplicailtl( .;:
~!:.~:.mm~
. other COImmssion'materiBls. referenced
1VUiA
.....
. iilform.mRthem ofthe variety'9,f equaI
in this partniaybe obtamed m.'
.
· to the kIio#·physi~~!~~.,:;;,;,,:'.·· emploYDlElntopportuIiity programs and. accordance with the provisions of29
limitlitionso! qualified applicants and. administrativectnd judiciahemedial .
CFR 161D.1-of t1i1s chapter; .;, ....
eniplo~eesWith'h;iindlcaps .iirile8~th~ .•.• proCedures available to them and :..
.
.'
. .
accommodation would unposean undue. promiilentlypostsuch written materials . § 1614.103'~I1l~lalntsOfclscrtmlnatlon
hardship on the op'erationofthe' .... . .in all persOnnel and EEO offices aDd ..' " COYerec:lbyt,hlapart. :
.
agericy'sprograni;: . "'. 'throughout the workplace; ," '" . ' . . (a) Individual and classcoD'!-plaintsof
. (9) Reassign.m .accordance with .
(5) Ensure thatfull cooperation is. ". emjlloyment discrimination and .... .
§ 1614.203[g).nonprobationilry
. provideq by all agency ,employees to .
. retalia tion .prohibited by title vn. .
employees whO develop physical or'." '.' BEO CoUnselors and agency EEO'
. (discrimination on the basis of race;';· ..... .
personnel in the processing and. . '. color. religion. sex and national origin),
mentallimitatiorui.thatpreveJlt them'
from performing the essential functions
resolution of pre-complaint matters and .the ADEA (discrimination on the basis
of their positions even with.reasonable . complaints within an agency and that
of age when the aggrieved ~diVidualis
accommodation:.:: .... .... .
'... full.cooperation is provided to the
.
at least 40 years of age); the
(10) Providerecogilltion to en"ployees, Commission in'the course of appeals.
Rehabilitation Act (discrimination on
supervisors. managers ,and units .. '. . including granting the Commission .
'the basis of.handicap) or the Equal Pay
demonstratiilg superior accomplishment routine access to personnel records of
Act (sex-based wage discrimination) .
. the agency when reqUired in connection shall be processed inaccordarice with
in equal employment opportUnity;
· (11) Establish a systemfor .
.
with an investigation; ahd .'.
....
this part. ComplaintS alleging retaliation
(6) PUblicize to all employees and post prohibited by these statutes are
periodically evaluating the effectiveness
, of the agency's overall equal.
at all times the names, business'.
considered to be complaints of
employment opportuni ty effort;
.telephone nwriJlers and business
discrimination for purposes of this part.
(12) Provide the :maXimum feasible·
addresses of the. EEO Counselors
(b) This part applies to: '
.
opportunity to employees to enhance
(unless the counseling function is
their skills through on-tha-job training. . centralized. in which caseiln1y the
(1) Military dep.artIDentsas (fefined in ....
work-study programs and othertrainiIlg telephone number and address need be
5 U.S.C. 102;
measures so thattpey may perjopn at
publicized arid posted). a notice of the
(2) Executive agencies as dermed in 5
their highest potential and advance.in
time limits and necessity of contacting a' U.S.C. 105;
..
accordance with their abilities; .
Counselor'befo~e filingacompla~taIid
(3) The United States Posta! Service,
>(13) InfOrxD itsemployeesand.~< .
the telephone numbers and addresses of Postal Rate Commission and Tennessee
·recogriized lab()r organizations ofthe
the EEO Director,·J;:EO Officetf!l) and J
Valley Authority; and ..•.... '.' .' . :>
· affirmative equal emploYI;l1ent..,;<,:. ,;.
Special ~p.hasisp}:ogram Managers.
(4) All'!illtsofthe legislative and' •....•.
· opportUnity'poliCYitndprograin.lind(c) Und~~.eachagencyprogram.the
Judicial branches ofthe Federal· ,,:, :
EEO D~ctor shall be responsible Jor: .. GovementhaViiig"positiOIlS ill tlie .'
· enlist theircoop'eration; and:;:' .. .
a
e
o
J
�12646·
se~::e:;e~-~:~=~~r·'~;iL~e~ts cO~i~~a~:fS~~~~ii~·':~:t~i·/·.>· _.'~S~1~;E·~.'~.·.i.1L.;~~t,;es.f.:.~a·'.n;d~.·c.aJ'·Eni~faorce:!.' F'·.!;men~.·;.· l·.( !i':t·i.' ;.' .: .· ~ .'"
ul.
~·~
~eframes
Exec:bi:(b~r
•..
.
.• .
.•
asking how the
ofsubpartAag€ m desPUrsuanlto'
No:. .
........ ....,..,...........
•
'. lzOO7and havebe~ri:reviewed by the';,
. ' . .... "., . .
will w.ork w.hEm.co.mplidnts are '. : ,
Offi' fM . ,. "t' ""d'B'dg , "
1614.501 Reinediesandreliet~'····
.
.
consolidated under this section. U1e", .
. Ice o· anag.emen'an . u. . . ".
et
.
..
.
..
1614.502 ~ Compliance with·fmal Commission' .
have added a 8ente~~El'sfatin8'that th'e!pursuantttfExec': Order No;:l2291;TIie'
. deci8ions~
.. :. . ' ' ' : ; . ,. .'
date of the first filed complaint controls CQmmission'hereby publishes its fmal . 1614.503 EnforCemeltt ;offiruiiQ)~is~i~n' .
. :rule~:;,',(':::':':; !< . :',>, .:';:".:""!.'.
. .,:
. decisiona;::':····>·: ,.: .. ~:~;C:i~.:.,:.··:•.: ..
the applicable t4neffiune .. · '.....
'.' .", .. ,;. ..
SfICtign607..;o· ., :;':. ,- .' ,..:.'
We have rimicivedpro:Josed .; .. ."
§ 1614.607 governing severance ofissues
because part 1614 does not provide for
't S ti
614 607 .
I. ec on f·th now covers.
.
·
.
e
dbIegation 0 au ority.. Many agencies. .
.
o jected to the proposed delegation ......"
section and requested a broad~r' '.
delegation ofauthority. We have
changed the delegation of authority·.·... ·
section to mirror the current practice
under part 1613, providing delegation
from the 'agency head to one or more '.
.. " '. . . ' . ' .
..
desigitees;
. EEOC'b'e1'ev'e's·:.L:a't·'thi's"·n·'e"w·'.
:.
II
Ul
cOJ;llplaint process Win provide
efficient resob.itionor'feaeralfieCtor;: . ,!)
emploYmen~discrimination ccimplaiilis' .
whil . tth· '.. " ' < " . " " " : : . " :
l'
more
adm~i~tr~::e~im~':::'~~·~~'c:/;:,.
.' .... ,:,~;",;: ,.......
+
Us~.of Su~j~in~C~ Part 161.\l..
, Equ~le~~ioYm~nf~pport;utity,;·'
Gove~entemployees!'
1614.504·COm'pU~nt~\viih··8ettlefuent·
.
." 'fa: . (J ful rd··;'··· ' n · ' .
.
'.
.
~~~~e,~,;c.~::· ,~.!a,.:·,~~e~~:~'::;··;,· .
~P'lrt~M,~~e~~~9,!~ffll,~!,pllcabJllty
For the Conimi$sion.
1614Jl01 . El!;9grt;lupatatistics. '," .. '
..' . '.. .
1614.602 Reports to the Commission, .' '.. .
Evan J. Kemp. Jr..
. .
1614.603 . Voluntary settlement attempts..:'
Chainnan.·:··
.' . . .....
161'4.604 .' Fm.;'..." .. d" '...
'f' .
~.an. computati(li1.o.time..
1614:605. Represe~~.§!i.on~ndotn.c)flltiin'e. .
For the reasons set. forth in the '
preamble. title 29, chapter XIV ofthe· . . 1614.606 Joinfprotasing:arid consolidation
Code ofFederal Regulations ~s amended'
of complaints; :."
... ', ;. '. .'
by adding part 1614 to read as follows:
1614.607 Deleglitio'n'ofauthrlrity:··.. .... ','.
' ' . ' ':.':>.,
.....
'.. Authoriti29U~S.C:'200(dJ.63S~~·79iarid
.' PART 1614~fEDERAL SECTOR . . 794a; 42 U.S.C.: 200Qe...16; £.0:10577. SCFR.
EQUAL EMPL0YM.~NY, ,O~fJ()RTU~ITl' 1954-1958 Comp~ p.zi8; &0. 11222.' :iCFR:. .
S' b'part' A"'''' A , ..·Pro········ .,.. : ....
1964-1965 Comp.. p.306; E.O. 11478,:3.CFR, .
te
'
"
geney
. . ........
EUuaI E -10- t'O .. gramToj)((irno.. ' 1969.COmp:.p.133; E.O.l2100; 3 CFR;1976
'ms' Ity" .,'
mp , ... _n ppo n '''.:'':
'Comp.• p:263:Reo~:p\aii No/i;of19ia;s ....
q
.i:~:~!: "l~::cyn4'pP~ligrl~~~,,:~ :',:
.~.. .Com~.~c~;3.21..... ,.~. ;..:,;~,,"~.~i.}.:i;?;.'{::: :.'
Co' . I ' f di .....
"6
.. .
.. .
1614.103 .. mpa~tso,scnllunation
SubpartA~AgenCy:PrCl9ramTo'" (.;.
,':1~14i~e~~~~::::;I!~;:':}:';:
Promote EquaJ Employment,:i;[;i.,.";:;··
l978.
',:'
.
~6~::rJabe~~:l:~rCJ!Pffr7;::\ . }:!!.:~:,:~J:~a~~~::.;s:.~:.:,. ~,;,. ··:.r.z~,~~l·~.~-...,."~ i~.~'.'.~\ ~ .;...:t~'l...\.El,' ~ .:~.~\.:.~.,\.: ' . .
:.: ~.~,~
l:)i~!xii8~*~~!po~plllin:~:':~,;:',;, ,,;' . . '
proct!dUl'es .o,fthispart:·~x.~p~·tl1~'tfqr::~·
purj>0:iesof computirigitime;Niferences"
in the' regulations to performi.JJg' certain';'
actions'fromthedate offilin8,the' "c.
complaint shall be fulerpretedtomeaIFi
from the effectivedate'ofthese";;':"
,<.'
.1614;107.::1
'.
1614.106·1nv!l~tI8au.0n.~f ~o)llpl~~ts:: .', .
. 1614.109 ~eanng8: i;",
';:,
•. "
1614.110 FIll81deCisions,
" '.
. Subpart Hrovlslons Applicable to .
'. ParticularComplalnts:::::" ,.. ; :,'"
.'
(a) itis·the'pqlicY ofthe ..Govi'!mment .
of theUnitedSti:ltes: toproVide·:equal
opportunityJnemploymenifor;aIl.;··:,
persons. to' prohiiJ ifdis(:riminatii:min.
employmentbecause'ohace~color;!'
.~~~:r~~!.:~~:~i::~O~~~~~;~~J, . 1614~::.~e·~~:~;~o~:0:~:pl~yni~ni h:~~f!::~nfoti;:o%~~;~~~or ." . ,'.
prior toOclober 1, i992~lo.co.m.plete. ...... 1614.202.' EqualP.a.y. A.ct::'·;,.:"
realization ofequalemploym~nt
processing on all pendingc:o.mp,l~intst
. 1614.203.~Reh.abllifiltio~ Act:"
opportunitythrough;a;contiIiuiit~f
espeCially including thosecomplamts' ..•.. 1614.~<:gla.s~ c:omplaipts·
i:,.
; .,. affirmative program in eaqhagency,· .
flied prior to January 1,: 1992; In addition. Subpart~elatedProCeSse.· . . . . . . { b ) No pEll'son shaUbe 8ubjectto '.'
.!he provision in §1614.1Q8 requiritig that 1614.sOt.Relationship't6 negotiilted
retaliation for opposing any practiCe
lOvestigatipns be completed within 180 .
grievance procedure:' . . . . .
made unlawfulby title VII Qf the Civil
days fi-omthe fIliog 6f the complaint.··· '1614.302 . ~~dcase Complaints; . . .
Rights Act (title VII)(42 U.s;C~ :ZOOOe et
shall require agencies to complete .... ,.
1614.303. P~tihons to the EEOC from MSRB
seq.); the Age Discrimination in'·.
. .
inve,~tigatiorisof complaii:tfsfIled Under
decisio~ on mixed case appeals and' . Employment Act (ADEA) (29l);S.C. 621
part 1613 within one year of the'effective . 1614c304ompleoamtst'. •:":"f . ·ti;ti'.'
' .. " .
etseq.).theEquC1IPayA~t (29:l,lS.C.
. .
.
n en", 0 .pe on.
..,.
206(d))' th' 'R h b'I't t" "'A"t (29 .'
dateof .these rea t'I.ons.. If" _.,. .
gul
,many.
1614.S05 :Consirlerationprocedures.
.
or e e. a 11 a.lon'. c
....
compla~t fIled underpar;. 1613, ili,~
.
1614.306: Referral of Case to Special Panel.
U.S.C: 791etseq. forfor:p£irticipating iIi..
c~mplamant h~s re~uested a de~lslon '.. ' 1614.307. Orga':lizaUonof Special Panel.
any stage ohdministrativeor judicial .
proceedings under tlIos~statutes.
WI.thOUt a heanng.or has not notified the 1614.308 Practices and procedures ofthe
. ' ..'
.
-'
' . '..
agency whether a hearing is requested
Special Panel. '.,' . '.
withintheapplicahle time liniit. the. .•. 1614.S09; .Enf0rceme.n,t ~q)pecial. Panel·
§ 1614.102 ;Agency program..\ .
decI~lon, . . .'. '.' ~,". .
agency Will treat thoseactions·as·.
(a) Each agencyshalr~~iritairia
requests for an immediate decision £rom 1614.S10·. Right to file.a civil attion...
continuing affirn'tativeprogramto
the agency and, in accordancewith· . .' Subpaft~AppealsandClvll Actions .
promote equal opportunity arid to
identify and elimiriate discriminatory.
. § 1614.110, the agenCy shall issue dinal' 1614.4D1;Appe~l~ toth~conunission...
practices and policie~. In support of this
decision within 120 days ~f tl:te.~ffept~ve . 1614.4~2<,l'iIn4'l for ,appeals to the'
date of these regulillions~The ,lirrie'
CommissioR.,·, '"."
. p·rogram.th~agency shll::, .. ,.:~:., '. : .."
period·for investigatillg and issuing fmal.. 1614.403, How to appear.. . :. ,....
. .•. (1) Pi-OvYdesufficientreso\Jces·:iojt~··
. qeeisions 9 ,·.co IIlPI, aiIltsJiltlq\i~f,ier P~rt~.: 1614.404 . Appellate procedure:':.
.e.qu.a,.l.·.•.emp.loYm'e.·.n.:t.·..oP.p·.o.,r.-f.tm·i.tY piQ;;".ajn.".. .
. ..
..'
..
ri
1613 is longeitha:ri'for thosefiled'Uiide{- ': 1614.405 Decisiorui oililp'peals:"';:':; ". .
.
-,
0'_
. '
......... "> .•....... " ' , " ,
" j 1614.406
Timelimitii.'[Reserve'd)":J;':";·/;· to en~ureerfiCI~!lt!ln~s,i:lC:;!?~~~f~h;"\' .
part1614topenrut agenCies tcfelimiiii'lte': 1614.407. RecOnsideration;i :'Jif'. ",);,;:..;.,.,." '/.. opera.ti~,n:>;,{: ':;)·:;;.}i2i;'~'~~·'i;1 b;;);;::~':! :·;.i".,
. anyitrl(~rito~orsuc~co:mp'~a}.nt~ tliaLi:~ 1614.408 Civil action: Title Vlt Age'
. ,.e '. (2)PrOvide.for,the,promptifairand(:',c
may e~lst while at the same hme··,.:,:,~.:;.>
.·Discrimination EniploYlllent·Act and· impartial proces,sing of complaints -in' ••. , .
.... accordance with thispart and the ..' ::;" :.,
implementing these~ew,,~¥~!~~,~.~~\~·:,~.',· 'Reliabil~tation'Act. .. .
1'.\.; ..
c '
In
",<,.'
.,
I
t
�·.. ;.FederiU~Registei~l!NoL57;:i:NorL70;~/~'FridaY,!~A~rilf:1()i::i99i:li'IiilM~·i,aIl~:R1@1¥'~O,R~~.~,':L~f5£J49"·.····
. (h) If;prior to the Tsslianceof th~ .
. [ii) Con~idert}je matteriio ~hidi'the·
notice required bY: §161U08(fJ/the',> . requestediriforma~loI( &tesliIi;\'jti~. ··• .
complainant refuses .within 30~da:ys of . pertain!! tobe:~Ma1:Jl!sll,~d'(n (a\;ol- 'of the
opposing party;' ...• ' . " , ! .. , .
receiptofanoffer'6hettlemE!Iitto"
.
accept an agency offeroffullrelie~':·
, (iii) EXclude citherevid~pce'6.ff~red by
containing a. certificat!orifrom the'· . ·the party failingto prOducetlle.: ".•.'
agency'sEEO Director•. Chief Legal· ...• requested iiUormatiOD: or Witness:':;
Officer or adesigneereporling directly
(iv) Issue s"decisionfully or partially
to'the EEODirector or il?-e Chief Legal. . in favor of the opposing ·pahy;or:.· " ..
§ 1614;107DlsnilsSaJa of complaints.
·The agOen'cy·.sha··U·.di"....;s·s.'·a co·'m""p"'la''l;n't Officer·that·the'offer conStitUtes' full
(v) Take'such'otlieiactioris~ii'n;',
. .
.,........relief. provided that the offeig'ave ,.'.
d
.. t · · . . .....
o.r a portion ora e:omplaint:.: ...... '.. '
eems app~pna e. -.' " ",,, , ,
nO.tice that fa. ilui'e to acc.ep' t would result
(dJ Any mve sfiga U·on, WI''11 b e ..
.
. • (a) Thatfai18 to sta.te a.claini und.er .
t db' .. ' ti t'
'th
§i614.103or§16.1U06(a)orstatesthe· in dismissal of theeomplaint.' AD offer of cond uce. ymvesaa.orsWI;.;,.;
h
full reliefunder.this subsection iilthe . appropriate secUrity clearances. The '.
. ding b r '
same c Iaim th at is pen .
elore or as appropriate'reliefin §'1614:501/
Commission will, upon request; supply .
been decided by. the agency or
, .,...'.
. '.- '.. . '.
..
Commission: . .' ..' . ;. .
~'.' .
§ 1614.108 Investigationof C:omp'~lnts.
the agency with the name o( an:. / .
.ynthapproPfiaiesepnity
. .
investigator .... '.' .. ......
. (b) .That .fal·ls to comply with. thoe.'
.
(a) Th einvestigationof'complaints'
I
..
ap'plicable..tiln.·.e'.limits.·.cOn.tain
.
..ed.in.
hUb
d
db th
.
c earance~;..e: '. '. .'. '.:"" .;' ."
s a e con ucte ye.agencY~· i ' ( e ) Theagericy.shall complete its
§§ 1614.105,1614.106 and 1614.;204(c).
against which the complaint has been
., . 'thin
d
f tho d
unless the agency extends the tilne
filed.:
·."·r;:,
' " investigation.Wl180 ays9
e ate
limits in accordance ,with § 161~.@4(c).
of filing of aI) illdividual.complaint or:.
or that raises a matter that has not been
• (b) In accordance with instructions .' within the tiJne per:iod Contain~d in an
order from the Office' of Federal"
broughtto the attention pfil Counselor .....
contilinedin Commission Management
and is not like.or.relatEidtoa matter thal . Directives. the agency:-s}jaU develop a ..
OperatiorisoQ. an appeanroma:. ". ;'"
has been broughttotbe::.,attentionofa
complete and impartiaUactualrecdrd. disIDiliflit~Pur.S,u8jit.tQ.,,~'~~i'4'i~i~!h:_;:,~·
COUnselor:~:
27:·:" :.•~~'~ .-:': -~ ,"!-' ': $.~ ~':''', ": ~ ,
,upon:which ,to~~a~~ firidirigs 10n :the~~' :: "
1:.": wri.~~~if~~$~nt)~rj~~!!t~!~i~l.~~~. ~~. ': '. ' '
(clThat'is the.basisof ~pendin8'clViI' .~~!.~de~a=:yd~.b!e~~~:ngn~o:r~.~~!:!;; .. peri()~;.:thce:~~~~~lp.~~;~ef-i51':t~;~;' ..
actioiiin'a:Uriited States Dis,iJicl'Cotirl' 4"6
respondentagenc.y,m.ay. !~l~~~ly'::!,;,. ". .
.
.. '
.
' . . ot memoranda; 'interrogatories;
d th'····
. d~'
t ' • th··
in which the:complain.8nt is 'a party: ...' investigationS~:f.act-firi.ding.coIiferellCe.s. exten .•.~,~e~et.t~,." Qr.~<,1,;I,ll5J~.: .. ~n;.
provided' that at least 180"dsys hav~'j·····'·an.ad~tion.al.,~AaYlJt.,r.9~,~a,g~!1.~~w..aY:::i·
· passed since the filin8 ofthe~"J,;;:;:,;'S . '..or anYs"other ract:findfug 'methods: that:: '.. unilB;t,~~1iIVy,.e~~.eI?A~~<~~~fP~!19.~:g"';::i: .
.administrative Complaint;· or'that~as": efficiently;and~thoroJighlY'a~dress: the~" anY period ofextensioll,for normore' ~ . , .
·(1) the complainant has the right to .
appe~lthe final decisio,n or dismissal of
aU or a portion of a complaint; and .,' ( ".
(2) The agency is requ~ed tOcOnducF
a complete an<;iJair investigation of the
· 'complainiwithin ~80 days of the,filing of
the complaint unless the parties agree in
writing to extend the period.,: .
r
' j .•, ,-;.: '.: ' .. '",
·~~~,::~~:~~',~r:~~~~.~~:.ttt~~ •dispute resolution techniques into their '~:p:4~~~7~iJW~~~it~~~~f:i;c . . .
~~!:SJ!~s::~=~~~~!:~e~!~~~:~;'L
complainant:wasapaity;.;
inIormiitionclassified pursuantto EXec..
,":,e:': ;."
.
. (d) Where the complainant ha~ rBi.sed· . investigative efforts in:Qrdeito promote Order No.l2356;;O~~,suec;~·~~p.r:~l;d~r8 •.as;.·
the matter..in a negotiated grievance
.. secret in the interest of nationaldefense •
.early .resoltitiOn:of cOniplaints,' , :.
(c) The procedures in paragraphs (c). or foreign policy. pro:videdthe'~.·,:.:; '. '.
proCedure thatperinits;~Uegati9ns.of .
(1.)througb (3)0! this section apply to···
irives~~ting8.gericyno.tiJi~!(th~j~(lJ1~es
diliCrinUnatlon or iQ,ailappeai to ~e'" •.
· '.'
Pr"
the mvestigatiollohomplafuts:. \ , . ,
f·th· "t' ........ " c'"':!:;"';',':';..: :: .. ,
M ent Sys~emsotectiop. Board·an d :
"
0
eex enslon., . ". '. ..... ,
(1) Thecompl~inant,· the agency,oand(fJ.Withinl80 daysfromtlie:filing,o~
§ 1614,301 or § 1614.302.indicates that.
the,compla:i.nant has elected to,putsl,le
any employeeoh federal agency shall
cthoen·ta~m;rfJePdlam.in~W1.·o<·'rtbirid·e'r' <.~~m-~mth·'~e).'O···~ffiri.°lce' .:..
'
4':'0:f'
the riori~EEO procesa;:::,'. ;.,:.:.:,
producesuclJ'docUinentluyi:md ' .
a.u
uv.
(e) Thalls'inoijt'or -alleges that:
testimonial eviderice,asthe investigator Fedch'sl Operatiomion
Ii
deems necessary.' ....... . . ......
· propOSt:irto take: a peoonDert:ii;ticin.:.or
dismissal. or withirianY.ijeriod,o(:;; ,
(2) Investigati)l1lare authorized to '.
other preliminary step to'!akiri~f a:'~ - .'
extension provided for in paragraph (e)
administeroath8~ Statements of
personnel action, iSdisctiirunatorr:..
of this section. theagencY,.shallilOtify
(fJ WherethecomplaiiuUlt cannot be.. . witnesses shall he made under oath or
the complalnllrit that the investigiltion .
locate<i;'providedthatreasonable efforts affirmation or, altematively.bYwritteI'!
has beencompleteLL sli~ll:l)roVi.detl-ie.
complamarifWith'a'copy.of.th~,.,
have been made t6.locate the ."
statement under~perialtyofperjury; . .
complainant Imilth~ complaiIiant h8.8
. (3) When the c6mplainant,qr the.'
investigative file.· arid shall notify the ..
not responded within lS'days ·a'notice. agency against which.a 'complaint is
complainant tha(with1n aOdays of':
of ptoposeddismissal seritto his'or her" filed. or its einployeesfailwithout good' receipt of the lllvestigative.flle,th'e'·. '.
last known. address'
. ':"
. cause'shownto respond fully' artdin '.' complairia:nt Qas the riglittorequesi a
hearing before an adminis.trative judge
19) Where the ag~ncy has provided .the timely fashiorit6 requests for .... .
cvmplainimt with a written requesfto
documents, records. comparative data. . or may receiveim iminediateflnaL .• ' .
sta tistics. affida vits; or the a tteridimce .
decision pursuant. to § 1614.:110from the
provide relevant infonnation or .....
of witn'ess(es). the iriV;estigator may note agency with which Ole coQiplaintwas .
· otherwise proceed Wilh the complaint.,
and the complainant has fciiledto
in the investigative record that the .
filed. In theabse'riceotthe~required' ..
notice. the complaiIlan.fm.~y;,re9.uesta
respond to the request within 15 days of' decisionmaker should; or the .
its receipt or the complain'ant'sresp.onse ' CommissiorionappeaLmay; in
hearing at .a:i1ftime'aft'er,:1,80 daY~ihal!, ..
does not address theagericy',s requesL.. . appropriate circmrista:n:ce~:>G., .....
elapsed frOrnthe filing.of th(coITlRlaint
a-.':
al{appeaffto.m,
to
~~tiJt:1~:~~;~:~~eili~:~~:l~~c.~-
. :';': reg4!!{:d"~o~:~f!:i~:e~:~:~~~~~e'
§
1614.~09·'.'~~~~~;~i!'r~:;~;~:r·DF~;"iIR~·':;
Instead of dis~issing ~Ol' failuret():,~:. :-:::~ 'of the 1:eq~'est.~~d.~~~_s,s~: ~,!~l?h~ve.· '.j. ~,' .' .'. [a ).,~!l~~:~. 9.~mW~J!r~·~~g~;~;·:';·:.
cooperate;th~:complamt::m~ybe 'Wi . ,.f reflect~d~favoraolY:'on~the~ party:,' "",:. 'hearmg;. tli~ :lige~t:¥
t,hat, .'. ,' ....
adjudicatecUf sufficient w!>nnatiorifcir- zi refusirigto'proVi(;ie~the.r~quest~d'c: .';.•... : '. the eommissi9,Ii'a:p~.,~,. ,. .;:,.~ ;:tr;:~;::;~ i:. . .
thatpurposeJs;available;:or.:,,: ';,):D~."'::':;"·· information;:q' i:r,~ ,····:!':,;r;cii.' ":1." r.''':·: L'. administrativejuage fcoridtitt a·.~: .:.~ .... .
.
.,:
,
~
,;
.
�126.48,
c~mpl'!U~~E!.service,.eXcePt fo~.';.:'
. par~gra:ph (a)(1}0£thissectiollwhenthe'
complaints Wlde.r the Rehabilitation Act. individual shows that he ouhe was not
'. (cl Willlin thecovered~eparlments, .' notified ofthe·tirile limits' and was not
agenCies and units, this'part applies. to .' otherwise aW8re of them. that he or she.
aU e~ployeesand applicant1!for", ..... did notIaiow wid reasonably should not
employment. !lnd to.all employment '.'
have been known that the···.'· .
policies or practices affecting employees .discriminato~ matter or personnel. .
or appli~tilf()r:employmentin,cludiDg
action occuiTeclthat despite due
employees 8Il<l.applicants who,arepllid diligence he or she was prevented by
frOm honappropnated funds, unless
cirCumstances beyond his or her control
from ~ontacting thecoWlselor within the
othe'rWise excltlded.··.· .. ' ' .. ' .'
time limits, or for otheneasons. ..
(d) This'partdcies'riotapplyto: ....
(1) Unifo11l1ed members of thelnilita~ consider~ s~cient by the agency or
depar:tmentsrefe"ed to j.~ paragraph... the C0IlUIl,1SSI0n. "
"". : . '
.. (h) Althe initialcoWlseling session,'
(Ii)(l)ofthis,section:' '. ,:, . : ' . ,
· (2) Efnployee'softlie General -.' '.
.' . . COWls.elors mtlstadvis.e. individuals in. .
Accouritiiig dmc~;.·
writing of their rights and ....
.' .
' re;;ponsibilities, including the rfght .to.
· .(3) Employees of t4e~bx:ary.of
Congress;" :: <:. .... .'
". ",
request a heaiing after an investigation
'; (4) Ali~hsemployedf~positioris;'or;
by the agency, el~ction rights pursuant'
who appl); for p'6siUons~ l,oqltedoutside to § § 1614.301 and 1614.302;t1:te rightJo '.
. file a notiCe olintent to sue pursuant to ..'
theliinits·oftheUiiited States'; or'"
'. (5) Equa:1paY~ct.c~mp.1airit~A(:.§ 1614.2()1(a)and aJawslrlturlderdie,,'-,
employe~s Whose'8efvices'8rit"';~ ~.
AOEAwte,aapfanadm.iIdstfative': ":."
. " . · ·1.,....
··'
co'niphu.'nt. .. age. ·s.ciiniin.a.'tlO.D Wl
f
....der.· ......'
Perf.orm.ed.·,:m.·.tlilii a.'~o·re. ':all·co·.···uo.'''try···'or·..
.,
certam l.'riited'Stalej lemtones as'",:?;, this part; thE(dti~. t~jqi~aJe' datP:age's.:;.
"':', :";
D.
..•..P.ro16vi1.4'd.•
§
· '.. ,."
1eO.~4"~,.•~. .· ,..',72~;~~;.?¥"F.[~[i~i;~::. .
.
~_
:,jr~:
di.
!n~:t\iu.'~yV,fuS:!ift,.t,~u1r{:m)·,r:,i!.~~.St,.,.'
writing by the"Couhselor,'Qtitlater than'
the thirtieth·day after contacting the:
CoWlselor, .of therjght t(,filea ' .
discrimination complaint The ~otic.e '.
.shaU inform thecomplairiant of therlght
to file a discrimination complaint within
15 days of receipt of the notice, of the:
appropriate officialWith whoin to file .a
complaintand ofthe complaiiiant's duty
to a'ssure thatthe agency is Wormed
immediately if the complainant retains
cOWlsel ora representative,.'
(e) Prior 10 the end of the 3O-day
period, the aggrieved person may agree
in writing with th~, agency to postpone
the final inteiVielitand :extend the
coWlseling period for an ad~tional .
period of no more thQij. 6O.days.lf.the .'
matter has Dot been resolvoo before the
conclusion of the agreede:ictension;the
noUce described biparagraph (d) of this
section shall be issued"
.
(f)Whereilie'agencyl1Ils ali'
established.disp'u.te resolution p··roeedure.·
and the;&ggrlevediridiVidualagrees'tp' .
participate .inthe prt;)~dUre: 1hept'e-':'
!_;,.":,;,,,\,,:.· •. ·.,•.
. ;,.:....: ..,.
complairifprocessmgpeno(lllhallbe90
#'\
.'
•
.
,
- .
days:.H1he:matlerbii!stio(;lHiei:iresolved
.. ' ."g~-" ....,. ,: ......:' ...•.. ,precomplamt coWlselfug (or Issues likebefore.t)Ie,9Othday,~thEilloticedescribed"
;{al~f,P.\!l8eIJ.qy·Bubject.toJ:hi9:P~:, i;: ,.or related .to issues raiSed iii pre: - ,iL, in paragraphJdlofthiss~cti~n shaUbe
~~ .1:l.c;loptp~~dureS)f(jr.pp:;tess~" ;;:-cOmp~Ii@;~~~~I1Dj},may:b~__~pegedJ,n~: issued;.;;.. :,;b!t; 1'>';o.~:~;:::.
~;:: 0:. "
~(li~!iu5ll~cI.;classcomplain" of j~:'.!:;;;;; a subsequent complamt med With the,
. (glTheCOun8elorsli~llnbtattenipt ifi
dis~ation,thatin~ude .the (~;c:'ij
agellcy·C9uJ:JSelorSlllust adYis~," ; ."
any way to: restram the' Bggneved.. ,'.' .
Pr.oVJ81?1:l8contaiq.f3d~U .161,4:105' .
indiViduaISo~tl.i,eir d",ty tp,ke.ep, th~ , .•
' , . . ..
tliro,ugh:l.~~~.lW ~t;tinl.1()l~;2();4;.'and. .ager,icy.··
...and ,Co.'riiiriission Wormed '0..f :>.. ( person from filmg'a'complliintThe .....
.
th t
• t'
·th U th
t h " ., 'd""
.",
. . . Counselor~8hallnotcreveatthe identitY
.', a are con~!s~:llt~a (). er:, '. '. '.
e~Ciuren.ra:. d#ssandJoser,Vecopies of anaggrleved~perSoii~:who consUItt~d
appli8lb!e,.p~!is~~~;P~'this.pB:rt.~I}d. .:. of a'ppeal,papers Qn.the.~~ncf; The,.':.;,.. the co.unse~or;'ex'Cept wbenauthoiiied .
th.etiistructionsJo.l'..c.om.plaintilroCE!,-!sing noticereqQir~d byjlaragraphs (d)or;(e)·~~.• to do so b.y the.Aam-ieved pers.'ot4o.r Wltil
contained in the Commission's' .
of this section shall include a' noticeo(,
-00'...
Management'OirOOtives.':;:'1,
the ~tto file. iiclclss:complainl, If the ,~ the ageneybasreceivedil : ' . . . . . . .
'.8
(h) The Commission ·shaUperlodiCallY·: aggrievedpersoh. mt.orm. ,theCi::iUnseror,~~: discriminaticin:Cbmplaint' Wider this part.
.
d .
.
.
.
. '. . , "
from thllt
re\llE!\V"agency ~sourcescanproced ures that he or s h e. wishes,tofiles class" "'," '. matter. person lrivolvirigthatsame'
_ , . ' ..
to ensure that an agency makes.,,: ..•.. comp~aint,th~CoUnfielorshaliexplain'
" ":
· reasonable efforts to ,resolve complaints· . the classcomplamt pfoceduresarid the· § 1614.106 . Individual complaints. .. ',
infonqally, to process:complaints ina
responsibiUtiesofa'cl!issagent. .. '
.
....:.
tim~ly."~8@er,"Jq:.d~velop:adeq~~te:~.
"(el C~~e.I"o~ shalJ c'oriduct· .'.' , '.'
. (a] A-complaint ,must be·filed:\vith the
factual records, to ~ssue decisions.that
cOWlseling actiVities biaceordanceWith. agency that allegedly discriminated
arecoRsistentwi.th ,acceptable legal.
instructions conJained in Conlmission '.
aga~st the complainarit.' ,t ....
standards,.to explain the reasons for its . Management Directives: When advised
(b) A complaint must be filed withip '.
decision" and togive.complaulants '
. that a complaint has been filed by an. . . 15 days of receipt of. the notice required
adequa~eand timely notice of their
aggrieved pers!il'l, the Counselor shall
• by § 1614.105 (d);(e}or(f);~'
.
rights.,...·····.• '
submit written report withm 15 days to.
(c) A complairit must contain a signed
.
the agency office t)Iathas been ."
, statement froI;l1 the person claiming to
§ 1614.1(15 .' Pre,.coin'Plalnt proCes8l~g...
designated to accept complaints and the be aggrieved or that person's attorney.
aggrieved person concerning the issues' . This statement must be sufficiently
· (a)Aggrievedpersonswbo b~lieve.·
they have beeri.discriIninat'ed againstQn discussed and actions taken. during' . . precise tOideritifythe aggrieved'
counseling.
.
. ....... ....
. individual and the' agency and to
· the basis·of race. color. religion•.sex.
national origin. age or handicap must
[d) Unless the aggrieved person agrees describegenera:lly.the action[s) or .
to alonger cOWlselingperiod Urider
"pracUce(s)thlilform the ,basis of the
consul.t aCoWlselor prioi: to filing a .
paragraph (el of this section; or the .
compla:intTh,ecoinplaintmust also .' '
complaint in order to try to informally'
'.
agency hasan'established,dispute"
containatelephcirietlli~beiand address'
resolve the matter. .
(1) Afl'aggrleve'd perso'Ii must initiate
resoltiti()D procedure under paragraph if) wheJ:e the. c.o~p1~inallt~o~' th~
contact with a Counselor V.'ithin·45 days' ofthissecUori;theCounselor'shall"""·" representative',?a,nbe:cqntacted. "'-, .',
(d) The agencyiihall'ackliowleage' '. '"
of the,date of the'matter alleged·to:be~'·: conductth~:fii1aJ:mteMHewWiili.·llie·':"i)'<
discriminatoIj:or. in,the,case'oC,,,:c( ii'.;" ..'C: aggrlevedper!.on'withui'30raays:oftiie" '.' receipt of a·compl8.inHri'writing·1!nd.
:perso~el action,' within" ~~~Clais,:of: ~£i~,::,':~ "date' the':'aggneyed'~riers(?,rf:brcipgh~!tlle:~ !,~:':< inform:'the~'~'c;mplal~anfor:t~i~~d~,te~o~ :';':"
effectiv.e.date.'ofth~ action;. ,.•,:.:;,:,;: '.
mattertothe.Cotihseli:i~~8 attEirition)If"'L' •which .thecompliiiiit:waSJHea~udi'.::· '.';;
". ;(2) The ag~:n.cyoithe Ccimmission, i:. ;.;., the matteI'has:not·beenre~olveMth~·; ,! "ackriowledgenient"sniill alsOadvi'se thir:;, ....
shall ext~nd. th¢,'15~day)ime;liinitin;;,\·':. ;.} aggrievedPersori'shall'b~.ihformedhl';: ": '; complainilnt iliat:' :,: ".":"";"'<:c;.'~ ,. (, (;; .:'::, ',"
'->,
a
,C
"',:
,"
�if the agency has notissued a final
but is freat~dby an employer'as
. decision::';'" .,' ,·:C,::
constituting iU,lch a liIilUtltitni;' has a
".'., no'tif1~t1Qn,~~l\\t':~ c()}riplilinaIlt,has.;.·
" (2) After the issuance ora final .... ..
physical or merital impaitnierit that '
requested an im:.inedia:te decision from
decision on wi individual or class "
substantially limits major life acti\-ities
th~:a8~n~Y~:~iUiii;..:60<<IaY8·~ftheendQf complaint if the individual has not filed only as ii result oftheattitudEi of ail ','
the~day. pe,ri<ill for..the,cQmplam~tto8nappeal; or:.::
.
'employertoward such impairriient;'or
he·ariiig.or:aniinffiediaie filial. ,; . ' (3) After the issuance of a fmaL .
has none of the impairIrients defmed in
decision
theoomplaiIianih~sncit ' deCision by the Commission on an
paragraph (a)(2) of this section but is
requested either' a he8.ri~ or.a dE!cision. appeal or.lao days after the filing of an
treated by an employer as haVing such
orWithinao days of receiving,the, "
,appeal.if thciCommission has not issued an impaumeil(' .
; .,: .
. findings and conclusions ofaii:~·,.
a final decision..
(6) Qualified individual with '
adminis~tiY~ju.d.8~:~~~.agEfncfsha1l.:: .' §' 1614~2 .' Eq'ual Pay'. ACt:' , ,
habdicaps means' with .respect 'to
issue a'final decisioii:,The fuial decision
'
"
employment.' an individual with .
shall consist 6f fmdi.!lgs by the agency, : . ,(a) In its enforcement of the Equal Pay handicaps who, with or without
on the merits of each issue in the .
Act. the Commission has the authority
reasonable accommodation. can perform
'complainUncl;whendisCrimination is. to investigate an agency's employment
the essential functions of the position in.
found. appropriaterEmlediesap,d relief. . practices on its own initiative at any
question without endangering the health
in accordance.Withsuopart Eof this.
time iIi order .to determine compliance
arid SIl!!tY of the individual or others
with theprovisfons of the Act. The
and who. depending upon the.type of
.' part: The fmal'decision shall contain ..
Commission will provide notice to the
appointing authority being used: '.,
notice of the right to'appelll to the
Commission, the name and address of •. . agency thatit will be initiaUng an
(i) Meets ,the experience or educa tion
the a.genrlY officiat.lip.on ;whom an ..•....
investigation, .' .
,
, . (b) CompIal'nts allegino,vl'ola'tions of
requirementS (wbicbmay ~clude· ..
appeaI:shouldbe serVed, notice ofthe , the Equal.Pay Act shall'.be'proces"sed
--0
" wn
,. " ". "., '". f'
al
passing t ten.t t) f th epOSl't"Ion in
.
. , a' es 0
nghttOfue)fc1.vilacti.·oriiIi. eder ',' .
d thi
rt.
questIOn: o r .
,,; ~'.
distrii::(co~';tli~hjliD.e,9~..*:hepfop!'l~... un er.. spa .
7
•
(") M"
th' ~; • f
' .
defendant
uClf:lawsulbind the,
"'<\i"'/' ' ' : " . ' " :",':' .. :
u '. eels e cntena or appomtment
applitabie' tiDie ~~~(for·app~aJj.and; § 1614.203 . RehablUtationAct...
.
. under one of the special.appointing .
• ,,' A' . c, '" •'f m:.nC·"F--' ' . . ·(al1Jel#ti(in~!'(lijn.diYiduaJWhh·autboritiesJor individuals with> ;.:: .
Iaw.sUlt~,; .c9PY;:Q~.orm·~73;."""
handicap{s).i.s. <.ie,fin,e,d. for.this se~tion as
handicaps. .......
''''''" :
Notici.e ofAppe:al/petition.sh~ll be::, , '.
'., .
.
..
. . , . . , . . . . ,
one ,who: ..•..... ~: ;;.'>.:'" .<:
. .
fb) The Federal' Governm:ei:lt shall'
·a~~<:h~?im:~~i~~t~~!~~~:;f!f~~;:'~?~;.:. r,;:';
(ilHas.a physicator me.ntal: :.' ... ;
become1a'modelemployerofiridiViduals
·Subpart ~rovtslons Applicable to •. iinpam,nent w.bi~sul>st8I).tia:lly, li,mit$ .
with handicaps.:Agencies ,shall give full
·P,a.rtJ.'Cu(..,i.,a'•.: r.·,.,.:.:,c,,;..:o.,,'••.·.m;),~:·,lat:.,l,.n ·~'. •:J.:'?•~•. :~ ,•'..~.,._"."••','.[.>"•. ,'.~_:.,•',.'•..,,•.:,,:.:.,;'.:>..• .' '.'.',•••,:.:,.:,. ,','.",:,'.• "'.'.'•,. " . one. o~, lllore:of;su.<;hpe~9I;l·s ;m.ajor life.'
. 'coIisid¢r~tionfo the.:~;:pla.ceme.nt;:
. . .: .•,·.·.•., .
.. __ .
,
•
- .:'
,:"
"co"
"'.
• actiVitif:!8::'L:';ii~,<",:;;:;,;,:.;:;'(n';':''. [::r'
'and~dvaiicemeiitof quBlified'3f~""::;:',:
·§ 1614.20,.::;AgeOlaCiimlnatlonlni:
. ,,' .(ii) Has a .record ofsuch an'"..
. individual!! with:,mentill and physical '.'
Employ",e.ntAc:L ':'''':'''~;':':'iiDpailinent:or ... '
.':. '.'
hiindieaps'.An agency.'shaU not:
(a) Assn altemative:tofiling'a .. '.. ' ... , (iii~ Is regarded as having such an .
discriIiliIiate.agamst aquaUfied·. .
.
complairit under this'part,an;aggrieved
unpalrIDent. :., '. '" , ' "
.
indiVidual With physical or mental ... .
indiVidual may, file a ciVilacUonina::
(2) P.IlYsicalor,niellta/impairment ..c. handic,aps.'>l; '..::: " , c ' . ' : ...
United States:districfcourt underthe·<i means:, ,.-:
"'>:.. .:.
(c)ReasohabJe'accommodatJ6n:'r1)
,ADEAagairistthe·head':ofan;alleged, :. '. • (il Aily p,hysiological disorder or :'
An agency'shall¢akereasonable " .
discriminating -agencY,after;giyirigthe,
condition. cosmetic. disfigUrement. or
aecoriri!lo<.iationlo:theknown physical.
Cominissic:)[i not'less than'.30 days':::
. a~atomical.()S.s affecting one or Qlore of or mentaJIiIDitatlons oflm'appliearit'
notice ofthe mteriftofiksucli'an action.. the following body systems:: .
.
eIIiploye~ ~ho,isaq\ialified fudividual
Such notice must btdiledinwritlng' with Neurological. musculoskeletal. special
with handicaps :u.nless. the. agency can
· ~OCi Federal Sector~Programs;1801!-: sense organs. cardiovasCular, . ..
demonstriilethat'theaccon:uI1odation
would imposean::undu~hardsbip on.the
St:. NW~Washington. DC 20507 within. . ' reproductive. digestive. ~spiratory.
180 days 01 the.occrirrenceof.the alleged. genitourinary. hemic and lymphatic.
operations of its program.. , ' "
". skin. and endocriDe;or·
'..
.
.
unlawful practice.·:'\" '..::: ,....
(b) The Conimission.mayexempt 'a .
(ii) Any mental or psychological
(2) Reasonable. accommmodation may
..
.... f
inc1
ude. .
position fro' the proV1~lons,o. th e :" .
disorder,· su'c'h as mental retardatl·on. .
.m
. but shall .notbe. . ' to: .
... ' . limited
ADEA.if the Commission establishes a
organic brain sYndrom¢. emotipnalor
(i) MlikiitgfaciliUes readUy accessible
maximum age.requii:~menfforthe'·.
mental illness. and specific learning·
to and Jlsableby individuals with .': .
position on thebasis'ofadetermination'disabilities, '.
, .....
ha;ndi~ps; and:::
.,
t~at age is.a bona fideoccupa tional
(3) Major life activities means .
(ii) Jobrestructunng.. part~time or ;
qualification necessary to the: . .
functions. such as caring for one's self,
modified work schedules. acquisition or
performance 'ofthe duties of the
performing manual tasks. walking. .
modification of equipment or devices.
position.
..
. '.
seeing; hearing, speaking. breathing,
appropriate adjustment or modification
(c) When an individual hasfll.ed an
Iearning;andworlOng.
of examinations, the provision of. .
administrative complaint allegingage.
(4) Has a record ofsuch an
readers and interpreters. arid other'
discrimination thaUs,noi a mixed case, .impaIrment means has a: history of. or
similar actions, .
· administrative remedies.willbe.'... '. . has been classified (or miscla,ssified) as
(31 In determining whether. p-ursuant
considered to beexhallsted,for-pilrposes .havingiamentalor physical impairinent to paragraph (c)(l) Qf. this section; ail c.
offili~ a dvil action::'~~;' -,;;'i"">
. . that)nibstantially limits,one or.more . accommodation would impose undue
(l)1aodays after;thefilingo[an>.'.
major'lifeactiyities~':;~
.:.: '" hardshiih,ir the':operation' of<tHti'agj'!Dcy
individualcomplainfiftbe.agencYhas :.: :, ',.(5) is:regciJ:'ded:,ashaving.:suckan';;'··· in' questiori,Lfactors-t6 bE!"considered:::':' ,
'. § 1614.110 i,FlnaI declslona,., :
··"·'.f
:;'.,wiWri;Md~Ys~~f'~f~c;:~i.ving::.:. . ,
,.requesfa
where
•
'r"
'.
•
'
m'an-:
or'..
lin
"
~Ji~i~~:~-~:!n:!td~~~~~~':~~::~~tjli;;;' ::n~~k~a~~r:t'::!t~~ir~~r~r:' . irl~:)~~r~:~r~i~:~i~1'~~~~~~~~~~;~:·:,::
days after the filing ofa',Class,complaint· substantiallylin'lit major:iife activities .'
programWith'respecft({the~numbet:Of
".~ ~
.. I
"
,,,
,
.'...
...
'.
�..
.
12650·
. Federal Register
rVoL 57•. No. 70.1
.
'
.
Friday~:,Aprill0.: .1992 f,i RUles; and .Regulations .
hearing in accordan~\Vi.t4. this section. complainants or agencie~iin,EEOC_ ',:.'. . . cannot. for reasonsstated; present facts
Any hea.ring'!Nillllec.ondu~ted by an .' bearings any representative who refuSeS' to oppose. the request. Aftereonsidering
adiniriistrativeJudge orhearin8.
to follow the orders of an administrative . the submissions, the administrative .•.
examiner with appropriate security
judge. or whoot1!~~,engagesin'
judge may order that di8~very be
clearances. Where the administrative
improper conduct.:· T ·:,; ; .•........'.
permitted on the factorfacts·in-VOlved
judge determines.that thecomp~t is
(d) The procedures in paragraphs (d) . limit.the hearing to the issues remaining
raising or intEmds to pursue issues like
. (1) ~ugh (3) Qf tm.s section apply to .
in dispute. issue findings and '.'
.'
or related to those raiSed in the
. heanngs of complaints:. " .., j\.".; .. >i. . " conclusions withonta he1i.ririg or make
complainl.but Which. ~e agency has not
(1) The eomplainant.an agency. and··
such other ruling as is appropriate.
bad anoppo~ty.to.address•.the. .
any employeeo( a fedenl1agency.shall .
(3].ff the administrative judge
determines upon his or her own
administrative judge' shan remand any
produce such documentary .and . ..' ..
such issue for counseliilgfuaecordance testimoniaI-evidenceas the, . .
initiative that some or all facts are not in
with § 1614.105 for such other processing administrative judge deems necessary.
genuiDe dispute. he or she may, after.
as ordered by the lidmiIlistrative jUdge.
(2) Administrative judges are
.
th
(b) DiscoverY. The administrative
authorized to.administer.oaths~. . .
giving notice to e parties and
judge shall notify the parties of the right Statements of witnesses shall. be'made
providing them.an opportunity to .
to seek'discovery pnor to the JIearing .
under oath or afflrmation:oi.>· '
respond in writing witltill-15 calendar
and may issue such discovery orders as alternatively. by writtlm statement.
days. issue an order limiting the scope of
.
the hearing or issue fmdingsand
d )r
f
nless the parties agree· un(3e penaltytheocoPmer:tpuryl"am' t.·'0"r thoe
are appropriate. U
·an·:··'
conclusions'withoutholding" a heanng·.
..·
in WritingConce~ the methods and
When
scope of disCovery. the party seeking
agency against which a complaint is'
(f)Record of heaiing~11t.e heaii,ng .
discovery'shall request authorization. . filed. or its employees fail-without goOd shall be reeorded:and the agencY shall
cause shown to respond fully and in .
arriinge' and. pay for:y,eri>atiin ". .•... .. ,..
from the administrative jUdge prior to .
commencitJgdiscovery.Both p8rtie~ are timely fashion to requests for :.,.,.(,. ..' trans~p~;All d6(#rleritil:ilu:t>Drltted to,
documents, record&.; comparative;data,: and aceeptedby, the' ad.nii.tiliitrative, '.
entitled to rea'sortablEf development of"
evidenCe
matters releVruit to the
. statistics, affidavits, or:the'.atteridance:';,·j judge at the heariit8 shall be made 'part
on
:J::':i~~:~j~i=l~~':th~' .. ' ':a~~e:;~~~~:~!?:=::~;e;. ~~!~
. ·~~W!~~~~tfi8::}~;
quimtity andtiJIilil8o((Uscoveiy~"'" . ' (i) Draw an adverSe fnfer¢nce that-the' acceptel1it 8hallJurnisha~opy of the ."
Evide~ce:mayh'e;deVeloped through"
document to.the «:ompl~L.Uthe: .
iriterrogatones; depositionS'and ... .'. of the tequeatedwitnetis;,wonldhave"'>:" complalnantsubmitila.dOCiument that is;
requests for:adrinlisions:sliirutations or . reflected unfavorably; on!the party>.. :~.:; ~. ac~pted. theadmfuistrative judge shall,
produCtion'ofdOci'im:enti::IfShall be ,.
refusirig to provide:the.requested:
. . make the document avauable,to.the- .
'~,-" :,: '-., ;... ....
ageQcyrepresen~tive fOfl'eproduction.
groUnds for objedioil to;produclDg
. information;
evidencethatthe iDformation sought by .
(il) Consider the matters to which the·
(g) Findings andconc1usions, Unless
requested information or testiniony .."..
the administrative judge m8kes a ..
either partY is hTelevant. ' . ,
~~;t:nso~~: repeti~o~s•.or . .
'.
reque~d iDfo~t:irin.o(~etestimony
~=~t~~
es~~~~~~~~:,~:.~~~~~e :i:~!e~:.r::~:;:~~ta~f:~'\
I'
.
.'.
(c) ConduCt ofJieiiring.Agencies· shall . (ill) Exclude other evidence offered by findiIigs of fact and concluSions. of law. .
~rovide.'forthe 'attendance a1 Ii hearing; the party failing to produce the
.
withiil'l80 days of.a,reCpiestfor's> ....
Jf all employees'approved'aswilnes8eS' requested infomlatiOliorwibless;":' .
heanng""b'eIng" recel"ved by """Oc. an'.
Jyan adriiliUstiiitive Judge: Attendance .
(iv)Issue a decision fully or.partially
admiriistrative Judge shaUi':mle findings
It hearirigsWillbe .limited to persons . in favor of the opposing party. or .' .
of fact and conclusions of law on the· .
letenlrlned bytheadririnistrative Judge.
(v) Take such other actions as'
merits of the co.mplamt..'and s.h.811
...or.der .
'..
,.... .
o have direct knowledge relating to the . appropriate.
:omplaint·He"~n(,saiep8.rtofth.e'
( ) "'. d"
d"'"
'th t
appropriatereliefwhere'discrimin8tion
-......
e em Ingsan . concluslons,Wl ou
is t.ound'. Withregard tathe. 'matt.er. thal .
hearing. (1) If a party.beli~es that some
nvestigative proCe8ssnd are thus .
:10sed to the pubUc~Tbe'administrative or all materialfacts are not in genuine .' . gave rise to the complaititThe., , .
Ildge'shall have the poWer to regulate
dispute and there is no genuine issue as' admi.tiistrative judge shsll. sfimd copies of
he conducfofaheiuin8.limit the to credibility. the party may, at least 15
the entire record. including the .'
.umber of witnesses where testimony
days pIior to the dat.e ofthe hearing or
tran!}cript. and Uui findings and .
at such earlier time l:iS reqUired py the.
conClUsions. to the parties by ceiiified
lould berepetitious;a'nd exclude any
erson from the hearing f o r .
administrative judge, file .a.statement ,mail, return receipt requested. Within 60
(lntumacious conductor misbehavior
with the administtative judge prior to . days ofreceipt of the fmdings and
lat obstructs theheanng. The
. the hearing setting forth the fact or facts. conclusions. the agency may reject or
dntinistrative judge shall receive into
and referring to the parts of the record
modify the findings an!i conclusions or
'lidence information or documents
reli.ed on to support the statement. The. the relief ordered by the administrative
!levant to the complaint. Rules of
statement must demonstrate that there
judge Sud issue a final decision in
.
is no genuine issue as to anySlich
accordance with § 1614.110~ff an.agency.
lidence shall not be applied strictly.
It the administrative judge shall
material fact. The,party .shallserve the" do~s.not. within 60 days of receipt. '.
cclude irrele.vant or repetitious •
statement on the opposing.party~." .•
'reject,oqnodify the fmdingsand •.
ridence. The adiriinisfrative judge or
(2Jl'he opposing PartY may file
couc;:lusionsof the administrative judge•....
:eCommission mayrefer to the
opposition within:15day~:pf~<:eipto(" then. ~efuidingsandconclusionsofthe ..
isciplinary Committe.e;of the. .
the. statement in p~r.agr~p~(d)(1)9f this: ~ adm,inistrativeJudge and. the reli~J·
)propria~~Bar;A:ss~ciationlUlY: .'. .... . sectlon.; 11ie oppositiol! m~Y.~f.~rto -the;;.,ordered.. sball b~cori1e. the final decision:'
torney or; ilpoiireasonaple' notice and . record in the case to rebut,the 8.tiltement·, of the agency and the agency. shall' .
I opportUriity)o be:heard.slfspend or.
that a facUs.not indisp~te.orm~y file ,,". notify the comp\ainaritofthe;final:; .,..
3quaUfy ,frouftepresenting .. >: ..· ...... an affidavit stating that the party::
.deci~ion hi accoroilll(;ewith§.1614,110;
..
.,.
,.
.
.
an.. •
'
,
�means the use of.drugs. th:eposses~ion
signed by the agent or representative';'
(5) The aruninistrative judg~ shall
or distribution of which is unlawful
and must identify the policy or practice' recomilied that the agencyext~ildthe
· u nder,the,ControlledSubstancesAct.aaversely affecting the class as well ~s·. time limiiSfor filing a complaint andfor
but,doesrnotincbid~:thei.llie'ofadrug
the specific 'action or matter affecting
. coriswtfugWith Ii Counselor i i i : ,
taken under superVi,sionbya licensed
the class agenl.' ' . " , " ' , ' ",
accordance with the tillie limit extension
«2) The complaint must be filed With· provisions Contained in §§ 1614.105(a)(2}
health care professional; or other uses '
au~orized by.the Controlled Substances the agency that allegedly discriminated " and 1614.604. ' . , '
Act or other provisions of federal law.
' not laterthan.15 dayS)lfter the agent's
(6) When appropriate. the
This exclusion. however; does not ,receipt of the notice of right to file a
administrative judge may recommend
excludeimb;tdividual with handicaps
~classcomplainl.
.
. . .. ,. '
. that a. class be divided into subclasses
who:,:""":"";'" .~ :"
"•
'(3)~e complaint shall be processed, andtha'teachs,ubclas!, be treated as a'
, (Qii~~SU~~8Sfully cC)mpleteda., .
promptly; the parties shall <rooperate
class; and the provisioD.sof this, section
supel:!is~ddntgr.ehabillt.a~on program· and shall proceed atalltimes'Without"
then shall be construedlind'applied
and is no longer engaging in the illegal
undue delay. : '.' , • .:. ' . ',' '
,.Al .....I · ' '
','
use of drugs, or has otherwise been
(d) Acc~ptiInceor dismissaL (1)
acco,,,,:,-'lS y..
'. " . "
'Within 30 days'of an agency's receipt of ,(7)Theadininistrative judge's written
rehabilitated successfully and' is no'
,
' a complaint. the agency shall: Designate recommendation to the agency on
longer engaging in such,use:
an agency representative whashall.be
~he~er to a~ethPt or dismiss a h 11
. (ii) Is participating in a supervised·
rehabllitation:programand is no longer
anyofthe iridividuals'referericed in" '
comp,a~t an , e complaint fi le, s a
engaging in such use; or . .
.
§ 161U02(b)(3). and forward the .
be trahShrltted to the agency and
(iii) Is erroneously regarded as
complaint. along with a copy, of the
notin cation of that transmittal.shall be
" msuch" b' t"
'.
sentto the agenl The administrative
?ngagmg'..
use.ulspot engagmg Co'.un·.selor's re'port:and any' o·th'e·r ..
'.
information pertaining to timeliness or
judge's reCC)mmendation to accept or
m such use.. - . , " . '.
(2)Except that itshallnot Vioiate this .other relevant circumstances related to'· dismis.uhall.become the agency
the complamt. to the Commission. The'· decision.unlessthe agency·accepts,·..
section for an agencY tt-t adopt or. :
a~ster reasonable:policiesor.·.. .' . Commission snalhissign the complaint i.' , rejects or modifies the recommeded
protedUres~·.iitcludiiigbufriotlirnitea
to aIi'adtninistrative judge or complaints decision within 3Q days ofthe receipt of
drugtelitin8~,desigiled.to.eruiiire that an' . examiner with a proper'security:"" .
the recommended decision'pnd '.
individual desCrlbediit'paragmph (h)(1) .clearancewnertnecessal:y/.1'he'·';)' '.
com~labttfile,TheageIicyshall notifY
· (i) ~nd(ii) of ~s sectioo,ili,nolC!nger .·sdtnihlstrative judgeDil;l.yrequfrethe '
the agent by certified mail.i return
engl,lgiD,gin:the illeg8.1use'ofdrugs. ..
complainantor:agericyto submit' '" "'rect'liptrequested, andthe .,:
.
.
,> .;.,.,:,..", " ' : ' c" , ' ' . ' / .
. additionalinformatiorfrelevant.to the:' ..admini~trative judSe-ofits aecision to
. §1614;,204':: ClasS eoniplalnt&:. ", ,.' ..
.
cOniplaint.:~),.-~",,~:~:J;'1')':"':':11~:::':;'.:·"i) 'accept.ar.dismiss a coJllp~8inl~Atthe:
,(alDe/iriltions:(,ij Apla$$.iS.agroup~ •....: (2)Thea<iministrative judge may.: 7:,:., ,saDie time. th? ~ency'sluill.f~rw~~o.
· o(.einployees, formeremployi!es or .'. . ". .reeornmend.that theageney'msinis'silie'" the.agentcoplesof,the .aciininistrative ' .
cODiplailti or anyportio~for any of the: . iudge's:~commenda~on:andthe .'.: .. '
.' applican~ fat emplriyJlient 'who: it is
reasons listed in'l 1614~107:.orbecauseit· complamt'~e.·ThedisIn1ssal.ofaclass
alleged,:liave'been or are bems - ' ,
adversely affected by an agency'
d..oesDot meettheprerequisites'ofa '.' .•. " complairitshall.inf?rm ~eagent either
personnel managemeritpolicy'or. . . classcomplaint.under§1614.204(a)(2); . that the co~pl:ll!lt 18 belIl8 fil~donthat
practice that discririlinatesag!linst the
.•. (3) If. the allegation is not·~di.lded in ,date asan mdiVldual co:mplamfof '
· groupotfthe .basis of ilieirrace, color•.'.' the Counselor~sreport;the ,:;:.'',;,: ", ., .,'.' discrimination and will be' processed . '
religion;sex.'natiorialorigin. age or ' '
adrninisttativejudgeshall'affordthe '; . .under subpart A or that the complaint is
handicap:.,,· ,> .,' :,' '.>".',
. agent 15 days to state whether the ~,,'
a!so dismissed as an individual
.
, (2) A class complaint is a written ' :,;:matter,was.discilssed.withthe:'fl.;'·:;· 'complaintln accordance With ':.0':: • .
complaint, of disCrimination,filed on .
,Counselor and,-if not, explain why it ' '.,
§ 1614.107; In addition. it shall inform
behalf of a class by the ilgent of the
wasncitdis.cussed. lithe explanation is . the agent of the right to appeal the
not satisfactory, th.e administrative· ,
dismissal of the class complaint to the
class alleging that: " < : .' ,.' /
, (i) The class'is so numerous that a
judge shall recommend that the agency . Office of Federal Operations or ta file a
consolidated complaint of the members dismiss the allegation; IT the explamition civil action and include EEOC Form 573.
of the class is impractical; ." ." ," ",
is satisfactory. the administrative judge Notice OfAppeal/Petitiori~
(ii)'Thereare qilestionscif fact
shall'referthe alle~ation to the ,agency
(e}Notificatiori; (1) \:VithiIJ 15, days of
.' commont,o the class; .'"
:
for furthercounselmg,Qf the'agent After· accepting a class complaint the agency
, (iii) The claims of the agent the
. counseling. the allegation shall be
shall use reasonable me,ms;such as '
class 'are lypicalofthe claims of.the
consoUdated,withthe.class complaint.
deiivery;mailing to last kno\\'Il'address
class;:(,>,e"
"";
. (4) If a~allegatio~ ~acks .spe~ificity·
, or distribution; to notifY all class
'
, (iv) 1:he agent of theCIass; or, if
and detaIl, theadministrahve Judge. " members of the acceptance ofthe class
shall. afford the a~ent.15 days ~oproVlde' complaint.
.,
•
represented. the representative. will ~ "
spe~fi.c an~ de!ailedinformation.The
(2) Such notice shall contain: '
fairly and adequately ,protect the '
"interests of the class. , . . . , .."
adrnmlstrativeJu~e shall recorninend '
. " ' , '.
.'
,(3) An agent ofthe class is a class'
that the agency dismiss the complaint if
(I) 'J!te?ame of the ag:ncy or '. " ..'
member who actsfor;the class during,
theagenHails to' provide such ,.:;:
, orgamz~bo!lalsegrnent, ItS location. ~nd
the processing oftheclass,~omplaint.·
information within the specified time
the.~ate of aC,ce~tance .of ~e complam~
(b) Pre~complajntprocessjng;An.,
t period. If the infonilation provided
."", .(11) 1\ descnptlon of the Issues:' ..' "
employee or applica,nt who wishes t o ' contains new a11egations outside the :, "acc~pte~as pa~ofthe class coIl1plamt:
file a, class complain,t p!ust,seek ':", "scopeof.thecomplauii:ther;i.;;;.;: f:;'l. '
·:(iiiJAn'eXpla[iatlon ofthebiridiria:' '
· counseling' and be counseled in'.. ;:,.' administtative'jtidgeshall:advisethe;:•. 'c",~ natureofthe£iIialdecisionorresoJution::
.. :a<:c:o~~<.!I'!~~fmp!~§~6,~4/1~;i~"j"i.:,:i'<;7~ ,agenthow toproceed'()ri' ~n,iridividual:) .ofilie colIlplaiI)t:on classmembEii:s;:and, c.
, (~l.r.i{iriQ; .alld;pI1fs.~!J:t~@.R,'?t q c./ass:,;c;' or,classt)asis concerningthese;!,~,i,' 'c' :::'c.; ,:,:' (ivl'Thename;'addfois~-ndi~l~pni;lrie' :
pomp!uH!M~)A~Ia.s~;cJ;)mp~a~~JIlust-b~", allegations.;, .' . ' '. " c ' , : · .:<, ;":xnurnber~bftheclassrepreseritati\ie:!~:(:::; . '
to.
i"
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t
of
,
;-:.
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,
.
.
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;,F~er.l~Regi8ter4N6L;57.'. No.' 7o··F'Frlday/April' 10;;:1992 :I"Rule~f'arid;~Regoiati6its: ..:
.
..
,
,
-
,
."
are: .
employees. nUmber and tYPe of facilities' provided thac all entering employees
applicants or employees who
and ,size of budget:;i ,,::::
."" .
. qualified individuals with handicaps due
are subjected to sucb an exanllnation
'l'f:lgardless of handicap orwherithEi .... I
to the inacce8sibilityofits'facility; ....
. (ii) The typeo{ ageQCY:9peration.,
including the composition imdstructure preemployment medicalquestionnaire
' {2} For the purpose of this subpart. a
of the agency'swork force; and ' .... '
used for poSitions that do not routinely
facility ahall be deemed aecessibleif it
(ili)The nature and th~cost of the. .
require medical examination indicates a . isin compliance With the Architectural
accommodation. .
condition for which further examination Barriers Act of 1968 (42U;S:C. 4isl fit .
seq.) and the Americans with
(d] EmploymeJlt Criteria. (1) An
is required because of the .Job-related
agency may not make·use of any
nature of the condition. and the results
Disabilities Act of 1990 (42 U.S.C. 12183
employment test or other. selection..
o
.
'. ," .
. fsuth an examination are nsed only in and 122(4).
enterion that screens out or tends to
(g) Reassignment Wheiia"
'.. .
accordance with the requirements of
this part. Nothing in this section shall be nonpiobationary empl()yee becOmes
screen out qualified individuals with
construed to prohibit the gathering of
handicaps or': any class of individualIi .
unable' to perform the essential
.'
. preemployment medical information for functions of his or her position even
with handicaps unless: ' .
(i) The. agency demonstrates thatthe
the purposes of special appointing .
with reasonable accommodation due to
test score or other selection criterion is
a handicap. an agency 'shall offer to
authorities for individuals with
job-related for the position in question
reassign the individual to a funded
handicaps.
and consistent with business necessity.
(3) To enable and evaluate affirmative vacant position located in the same
action to hire.. place or advanCe
commuting area amfSl:rviced by the
and.
..
. ..
same appointing authqrity. and at the .'
(ii) OPM or other examining authority individuals with handicaps. the agency
shows that fob-related alternative tests. may invite applicants for employment to same grade or level. the essential.
or the agency shows that job~related '. indicate whether and to what extent
.functions of which the individual would
they are handicapped, if: .
b e a ble to perform WI th.reasona. e
bl
alternative criteria. thatdo not screen
' .
.. '
(i} The agency st.ates clearly on any'
out or tend to screen out 8S many
accommodation if necessary Unless the
written questionnaire used fOf this
individuals with handicaps are
: agency Can demOnstrate that the .
unavailable.. '
..: :''''.
. purpose or makes clear orally if no. .
reassignment would impos~ an tindue
(2) An agency ahallse1ect and:
written questiqnnaire is used. that the
hardship on tMoPerationof its .' .
.
administer'tests concerning employment . .information requested ill intended for
. .
.f '
program. In the absence 0 a' pollition at
so as to insUre' that,. whim administered: : use' solely in conjunction With.··
afftrmative action; and', ....., . .
the same grade or level an.offer of .'.
to an .appliCant oremployeewhci haaa
handicap,thatimpa~.seDaory.manuaL ' .·(ii] Theagencystlltes clearly thatthe. reassignment to a'vi:icaritpositiori at the
information is being requested Ona .
orspe8.kiDg skUI8.,th~,~8t~ults :"
highest available grade. or level below·
ace.,ur.a.t.ely.•.re.fJ,ecfth.~8.,.ppliCan.,·t'.8.,or;. ',volrintary basis. tha~ refusal to provide
. '.
the employee's cUrrentgi:ade orJevel :,:
.
shall be required;biifavailabilitY'of '.
employee'saJ:@tytoperfpnn,the;·" ;,
it will not subject the applicant Of
such a vKancY'shall Dotaffecf the ;~: .•'
positionortypeofposiQona iIi'qUeStion . employee to any adverse treatment. and employee's entitlement, if any. to:..... .
r!!ther than reflectirig tlIe applicant's or' 'that it will be used only in accordance
employee's impaired sensory, manual... with this part.', ' . ' '.'
disability retirement pursuant to 5 U.s.C.
or speaking sldll (exCept where those .
(4) Information obtained in
8337 or 5 u.s.c. 8451.U the agency bas
accordance with this section as to the
already posted a notice or,...
skills are the factors that the test .' ~,
purports tomeasw:e).· '. . ', , ' ,
medical condition or history of the .
announcement seeking applications for
(e} Preemploymel]t intiuiries. (1) " , applicant shall be kept cOnlidential
a specific vacantpilsition at the time the
Except as provided in paragraphs (e)(2) exCept that:
'.
......
•
.
agency has determined that the.
and. (e}(3) of.ihis sectio~an ag~ may >~.(i) Managers;. selecting officials;an<!.' nonprobationary employee is unable to .
not Conduct.a. preemplp}'Ilientme,di~81·, . others involved in theselectlon proeess .perform the essential functions of his or
examination and mal(not make" .' 'or responsible for affirmative action
her position eveD. with reasonable
preemplo~ent inguny:.ofan'sppUcant
may be informed that an applicant is
accommodation. then.the agency does
as to whether the appl,ic.imt is an '. .
. eligible under special appointing .'
not have an obligation nnderthis section
authority for the disabled; .
individual With handi98Ps·orasJo the'
to offer to reassign the individual to that
nature or severity of a handicap.'An . .
position. but the agency must consider
(ii) Supervisors and managers may be
'. informed regarding necessary
agency may. however. make'
the individual on an equal basis with .
, ....
preemployment inqwry into an'. . ,
accomniodations; '.
those. who applied for . t he position; For
applicant's ability to meet the' essential
. (ill) First aid and safety personnel·
' the purpose of tbispa:ragrap~ an
functions of the job. or the medical..may be informed. where appropriate. if
employee of the United States Postal
Service shall not be considered qualified
qualification requirement's if applicable. the condition might require emergency
.
-:'.
.'
.treatment;.
with or without reasonable' ,.'
for any offer of reassignment that would
accommodation. of the position in
(iv) Government officials investigating be.inconsistent With the terms of any
question. i.e.• the minimum abilitieS
compliance with laws. regulations. and . applicable collective bargaining
necessary for safe and efficient·.
instructions'relevant t<! equal,'
agreement.
.
.
performance of the. duties of the position employment opportunity and affirmative
(h) Exclusion from definition of
"individual(s) with handicap(s)".(1) The
in question. The Office of Personnel
action for individuals with handicaps
Management may also make an inquiry shall be provided information upon
term "individual withhandicap(sr' shall
as to the nature and extent of a
request: and, . '
not include im individual who is
(v) Statistics generated from
handicap for the purpose of special
currently engaging in the illegal use ot
drugs, when an agency acts on the basis
testing.. .' ........ : . . . . '.' .....'
information obtainednuiy beused·to
(2). Nothing in ~ssection shall.,manage. evaluate. and
eqUal
of such use.Theterin:-di-ug": m-eans a,
prollib.it anagtlRc::Y from conditioWng an. employIDeil.t.bpport:iutitY.and 8Ifirmative . c6ntrOlled'substanc~:as~defiriedin;"';:"
offer of employment on the resultS of'~action programs'''.i:;·:.:;;c';'; ' s c h e d u l e s I tbrough'V'ofsectli:m 20'iol .
medical examination t:Onducted prior to "~:.;. (f) Physicm ,QCcesstobuildings.:(llAlithe Controlled Substances 'AcV(21' u.S~C.
the em.ploy'ee·a.e~tr~ll~;on.du*¥,:
'.
. agenCysball,notdiscrlm.i.witeagainst.;, ; . 812).Theterm:~iUegaluseof drugs~'c< .
i'
i!
Ii
,i
: 1.
report on
':,,;, ..'.:
"
�'.~.
/
."~
..
§ 1.614..501 shall apply. The agency' shall . mdicated by the filing of a timely
of race; color. religion. sex;national.·
· also,.~ithjn .60.daY8pfllie-issuanceof . . written grievance. 'An aggrieved'
,
origin, handicap or ~ge; . ' " , . .
(b)Election. Ariaggrievedperson rna
the;fmaldecisjonfln:dingno class"wide .... employee who files a grievance with an
· discriminatiordssue the '.. ' . '
agency whose negotiated agreement.·
initially file a mixed case complaint .
acknowledBement,of:repeiPt of aD.:
"permits·theaccep.taiiciof grievances
with liIn agency purs'uant to this.pai:t or
individual complaint as required by
:- whlch:'allege discriniiilauon may not'
an appeal on the same mllUer with the
§ 1614.106(d) and.process in accordance .' thereafter,fIle a.cl)mplaint on the same
MSPB pursuant'to 5 CPR 1201.151. but
With the 'proVisions' ofliubpart A of this
matter urider,thispart 1614 irrespective
not both.AD.agency shall inform ev~ry
· rJlirt; each indiviquillcomplai,llt thatjvas . ofYlhethe.r~e agen~yhasinformed, ili.e employee who is. the subject ofan actio
subsUDlEidinto.the classcomplainL::
.individual of the need to elect or of ... '
that:is app~alable to the MSPBand whc
has either. orally oJ; in writing raised the
.' '•• ·(3l'VVlie~~~~~~~D}~.foundiii;· . ~v~~ther,t!te,~~,v~c~ has,raised an .'.
'. the fiiiilldecision anda:dass.member.
Issue of discrmunation:. Any such '.
issue of discflinination dUring. the
. complaint flledafter a. grievance has .'
processing of the action ofthe right to
belie;,eithiitlle 6f ~h~ iii entitlEid.to .....,,
indiv'jdual relief. the Class member may . been fil~d on the same mattEirshall be
file either a mixed case complaint with
file awrittenclaim,With the head ofthe . dismissed without prejudice to the .
the agency or to file a mixed case appel!
· agency or itsEEODh-ector'withfu 30
complainarit'sright to ,proceed through
:Withthe MSPB. The person shallbe. .
· days of receipt ohi6tificatioii by the
. the negotiated grievance pl'Qcedure
advised.that he .or she. may not injtially
ageIlCY of its fin8ld~cisi6n~The.da1m • includirig the·rlghtto. appelllto .the.
filell.a,th a mixed case cornplaintandan
mustinclude a sp~cific..detailed "
Cominission from a fmaldecision as
appeal on the same matter. and that
shoWing that the claimimt is a class
provided fu subpart D of this pall The . whichever is filed first sh.allbe.. "
member.who was!iffeCted by a: . ..
dismlssal~f such a compIa.intshall .' . .
considered an election to proceed in tha
personnel action or matlerre;sriltirig .
advise the complainant of the '()bUgation foruriI. If a person files a .mixed c:;ase
from
discriinin:atorY policy or .
to raise d~scrimination in the grievance
appeal with the MSPBinst~ad()fa. .
practice; and that'Uiis dis~liJnUiatorY
proCess and of the right to appeal the
mixed .casecomplaiptanq Jhe .MSPB
action tookplaceWithiIitheperiod of " fmal'grieyance decision .to the'. .'.. .dis~sses the appeaHQriurisdictional.
time for whiclitheMeD'CY::foun:d.!=la~.s-i. .' eorillni.ssloIC ;:}:':::,' 'L 'o>~:' ',' T ' . "':' ., ••, reasons•.theage,ncy~~allprOmptlYi .'. .
· .wide disCrimirlation io'itsnnal decision. > (b) 'Whenapersori is not covered,by, a . notify the indi vjdualin writing ,of the ': .
The peri090ftime for whichthEi ag~nCy . c.ollective bargaining agreement that" right to contact SnEEO .counSelor withir
· fmds.elass-wide disCrlminatil)n shall
perinttsallegatioris ofdiscriminatioilto' 45 days of receip{ofthisnotice.and to>
. begiil'ilotm'ore thiUi:45days'prior to the • be raised. inaneg04*e.9 grievance'.' me !inEEOcomplamt;.~subject tol:~ ." .
. ·agerit~lfinitiarconutctWith·ihe:?" •...•. (,:' .. procedw.:enulEigaticins'ofdisCfim~ti01l § 161:'1:107. The dateo}} whichihe· .
Counselor and shall endricitlaterthan-: .. shall be processedascomplamts 'under 'person illedhiso~ her appeaLwith'·,
'. the date wh~n1heageiicy.elirillnatesthe .. thisP8rL'~>/:· '" '~:'::.:". ,c~'~';:'/ :: ;D;.'; MSPB shall be. deemed to be the'dateof
·poJicy;oJ"practic::dl)und,tl):be:." ;,;;,,,,~ (,!,,<, '. . .. ( c) When a' P?rso,n IS emplo.yed bYllfl initiaLcoritact'with tliecciunselor~ Ua
'discriminatoryjnthEdfual agency: . ,;agen.cy not subJ!,!ctto 5U;~.G71n~d) . . person mesa tiniely appeal With MSPB
· decision.: Theagencyish~ issue a fin,al .~d IS .c::overed by a negotiat~d •... .
.from the agency's processing of's mixed
decision on each such.clainiwithiil90... gnevance procedure. allegations of
.case complaint~and theMSPB.dismisses
· day~ of filing. S~cI:i,'de.cisil:)Il must· ;,., .••
disCri~~tio~ '.' ~e p~ce.ssed as/.,. it for jurisdictional reasons,' .the.agency
include,a notice .0f~E'!);igh~to. me.an .' . c~ml?lam!sl;IDde~ s.part-except ~at . shall reissue a notice.under§1614.108(f)
appeal.ora}:ivila~q9.n,iriaccord~ce,· the ~~ ~~ f~rp~cesslng the
.'
giving the individual the right to elect
·th s'u'bpart D of this part
...and the
' .. complamt con.tam.e. dm § 16.14.,1.06. and .. ' bet
h ' b r' . .
\V1
applical>le time li,tiUti!.:•. ,.; ~\ '~) . ' . ~or appealtc?1h,e};9IriIttisS!O~'contai!l~d ad:;~:tr~ti!:nngJ'udg' ee:
imrn~diat~
.. ' ,
.. L.'.
In It 1614.4OZ may. .be..'hE'!ld m abeyance
..' . • . .
. " . " r, .. :. "','...' ..•.. , .....'. " ..... ":.. ",. "'. .' '.'.'. ....... ,.' ...•.
"
111
.
,final decision. ~;.' ~;:';:' ";":;;:: .. ' ",;':.
.' .. .
· Subpart C';;':'Related:Proces~s.
during processmgofa'grievance .
.
.
. ;;~:,!.,:,.: ... (, ".,:':' ,.'",i "":.';i ..
coveringthe'same inatterasthe
(c) Dismissal. (1) An agen~ymay
§ 1614.~01-, RelationShip to:.negotlated .
. cOIpplaint if the agency notifies the
dismiss a mixed case eomplafutfcir the
grlevanceproce<iurei, ; : :,;
'.
".
complaiilant in Writingthatthe
reasons contaiiied in. and under'the .
(a) When. a person IS. employed ~y~: 'complaint will be heldin abeyance .'
conditionspresCrlbed iri.§ 161~.107;
· agency !lubJectto 5 RS.C. 71Z1(d) and IS pursuant to this section. . . . .
(Z) AnagencydedsiQp. to dismiss a
covered ,by a: collective bargaining
."
..;::<..
mixed case cOmplaint on the basis ofthe
agreement that permits allegations of' § 161UO.2 •.. Mlxed.ease complalnta.·;
complainant'spriorelectionoftlie'" .
discrimination to be raised:in a·····
.... (a) Defiiiitians~1) Mixed case'
MSP~ procedures shall be. made as .
negotiatedgrievanceprocequte,a..
camplainLA mixed case complaint is a follows::":'; ....... <', .. '
person wishing to'file a complaint ora .' compl~int ofemployment discrimination . (iJ Where neither the 'agency nor the
grievance oIl.a mat~er,of alleged.. '. . ··filed with a federal agency hased on
, MSPB adminis.trative ju~equestions
.•
emploYment discrimination must elect to race, color. religion. sex; national origin; the MSPB's j!Uisdi~tion over t,heappeal
raise the matter under either part 1614 or. age or handicap related to or stemniingon the same matter. it shall disinissthe
the negotiatedgrievan:ce-procedure, but . from aD EiCUon-tpat can be~appeah~d to
mixed' casecomplaiI;it pUrsuan.t .to;.
not both. An election to proceed under
the.MeritSysteihsProtection Boara '
§ 161,4.107(d)llfidshall advise the. ", .....
this part is indicatedoillyby:ilie filing of· (MSPB).The complaint may contain
complaiiiantthat pe.or she iiiustbring:
a written.complaint;use ofthe. pre- . '. .
only an allegation of employmei:d ,',
the allegations of discrimination ,; .. , "
complaint process as described in
discriminationoritmaY:contain···. contaiped .inthe rejl;lctedC()nlPlaint to
. §1614.105 does notC'clriStitUte'an: ." .'. additional allegations that the MSPB lias .the.a~teilticin 9f the MSI;>B,ptirtitianUo b
electionfor puiposes ()fthis li'ettion: An: ; jurisdiction to address:'
,.' . ,'"
CFRizoU5S;Thewsfu.issalo£.such'. a .
aggrieved employee:whoflles:a' ,.:;(.' ·..• «ZlM
ase,appeals. A mix~d'case' . coifipta~~tsh~jJailVi~~;thf~QlliiH~jp.~n~
complaint Uhder::thispart !psy.not ,;i..,':;: '. appear, appew}Ued with th~' ¥~P!l, of!hi't '~ttP'P.C'ti~(jt;l;,~~,~9c;::,q,,:., .'.~ ..•
·there·aftet:filea.grieVaIlce;ori;the:same:.~ tha t aIle' .esthat:a:n~'8 'ealable:a .en'" ,,:: revieW-the' MSPB~8 firiillde'Cisionon.the
'.. niatte,r.Anelectionto,prqce~dunder a~,;; .action;;a8.effect~~;::r.~hole~oi~'pfl'(disCtI~~tijj~Issii~: ~:~~~~~ai;of a."
negotiated gne·vance:procedilieis. becatiseofdiscriminationorithebasis . mixedcasecomplairitis,not 'appealable
the
d::
i
�',-,
:
.,':: ..
'
r·
'J'.'
-
(0 Obtaining evidence concerIJing the the agent to discuss materials with the
{j} Agency decision. (1) Within 60' ,
ompiaint.(ll The administrative judge agenc;y representative and attempt.,~,,-: . days;of re~eipt of the report of findings
,oti£y _the 'agE!Dt ~d the agency. . , ',' resolution of tge,complaint."\ ~,<, c";,
and recommendations issued under ','
(2) The complaint may be resolved by § 1614.204(i), the agenCy shallissne a
epresentative of the tiineperiod that" '
l1ill be alloweq both parties to prepare
agreement of the agency and the agent, . final decision. which shall,accept,'reject,
heir cilses~ 'fhis .timeperiod Will include at any time as long as the agreement is
or modify tbe findings and. .
recommendations of the administrative
,t least 60 days and maybe extended py .fair and reasonable.,
"', '.,' .
he administrative judge upon the
(3) 'If the complaint is resolved. the '
judge~
.
equest of either party. Both parties are
(2) The final decision of the agency
terms of the resolution shall be reduced
mtitIed'to,reasmiable, development of .•' to writing and signed byth~.8gent and.
shall be in writing and shall be
theagency•...... '. '. . "'~ ",- . '
transmitted to the agent by certified
!vidence on matters relevant to the,
mail, return receipt requested. along
,ssues raised iIl'the'comp'iaint. Evidence
(4). Notice of:theresolJltion ,shall be.. ,
nay be developed through "
"
given to all class membersJn the same· with copy of the report of findings and
nterrogatories. depositions: and' ,
manner as notification of the: acceptance 'recommendations of the administrative
of the class complaint and shall"state
:equests for admissions. stipulations or
judge.
'
the relief. if any, to be granted by the .
(3) When the agency's final decision is
C1roductionofdocuments.ltshall be
~unds for objection to producing
.
agency. A resolution shall bind all
to reject or modify the fmdings and
evidence that the information sought by members of the class.Within.30 days of recommendations of the administrative
either party is irrelevant, ' .
".
. ' the date of the nopce-cOf resolution~ any··. judge, the decision sball'.c..entain specific .
overburdensome,repetitiol,1s~ or
. member of the class may petition the '.
reasons for the agency's action.
prlvl1eged.
' ..: ..'" ' , .
EEO Director to ,vacate the resolution .' .
(4) If the agency has not issued a final
because it benefits only the class agent
decision with 60 days of its receipt of
(2) If mutual cooperation fails, either
party may request the adtr$tistrative.
or is .otherwise not fair and reasonable.
the administrative judge's report of
Such, a petition will be processed in .
findings and recommendations,those
judge (0 rule on a reqnestto develop .'
evidenctdf B party fails without good
accordance1lllith.§ 1614.204(d) and if the. findings and recommendations Shall
cause shown' to respOnd fiillyand In ;. ' a<iDlinistratiy~ ju4gefinds ,that the «T;; :.:/ become ,the mal decision, The ligency ..."
timely.fashion to are\:tueat made or •. ". x:esolution is notfau and.J1lasanable.he shall transmit the final decisitiri to the"
approved by the administrative judge "': , . or she shallrecO[QDl~ thatthe ~":;.: l· ." agent.', With.in,''fiVl,e days: of
expiratio,,n ..
fordoconients;re<:Ord~comp8rative; .....
resolution be vacatedandtbai the '. "
6O-d
data. statistiCs braffidavits,: and the:;".
original class agentbe ieplacedby.the ' ofthe
ay period:
,"
'.~. .,
petitionel" or some other class: member:. . (5} 11t,efiDaldeclsiori ofiliEi agenCy,
information issoleJ.. til the control'
'Y
.
.'
shallreqnire ariYrelief authorized by ....
one.party~ImChfanure inay.in~'~::.; •.. ;·
who~eligiPleJobe;the class a'genti>:: ,
law and dete~tobe necessary or
appropriatecircmnStimce8yc8usedthe
,during further processing'of the·ClaSs:';;,; desirable to resolve the issue. of'
.
administra:tivejudge:\"7;~~;oc,'U;;~.':;l~ .'"
'complaint. An agency'. decisian:tharthe
."
.'., ,
'."
') To' draW-I' an'adv'ers'e'. ',,_r_ce tha't
'1 ti' •.., t f . :..._:, ,·'bi'"
. ,discrimination.;. ,'"
'" . "'.":" .",
, (I
n,
reao u OD.lBnO aJh,uure:asona e-:.
. (6) A fiDaI.declSion.on,a cia~s
.' .
the requested information would have' ' , vacates any a8r'eement between the>
comp'laint shall, sub)'eC,t to subpart D of
reflectedunfavorably,on the party
former ,class agent and the agency.. Ail
.
refusing to provide the,requested'
agencY decision on Stlch a petition shall this part. be binding on aU members of
information;';' ;,:";;':;;.:.•,', .
inform theformer:class.agentar'the ,,',.
the class and the agency., ,;.: . '"
(ii) To.conSider the matters to which
petitioner ofthe right to appeal the;' /;
. (7} The ,final decision sh~ll inform the
agencyof~.erighttoappealor,tofile a
the requested information pertains to be decision lothe Office ofFederah''''
established in ,favor,of the opposing /,.
Operations 'and include ,EEOC Form 513.: ,civil action in accordance with. subpart
party: ;;"i',,>,' , " .;J; ',""; Notice ofAppeal/PetitiOILj:"~ii;:f,~ ~.';~;:,. I? o.f this part and ofthe applicable time
(iii) To exelnde other evidence offered' ,(h) Heq.ring, On expiratioil'of':the, 'j,' "'. hmlts.:, ,
. ". ' . .
.'
period allowed for preparation of the.:'
by the parlyfailing to produce the : .'c'
(k) Notification of decision. The .
requested information: '. >- .. "
.'f
case.the.administrative ju4ge shallset a agency shall notifY class members of the
(ivlTo recorillnend that a decision be· date for heating. The hearing shall be
final decision and relief awarded. if any.
entered in favor of the opposmg party;.
conducted in accordance with 29CFR·
through the same media employed to
give notice of the existence of the class
or
"
.' . .,.,
.
"
. 1614.109 (a) through(£).
':;"<"
(v) To take such other actions as the
(i) Report offindings aild'
complaint. The notice. where '
appropriate, shall include information
administrative judge deems appropriate. recommendations. (1) The ,:<
(3] During the period for'development .administrative ju4ge shall transmit to'
concemingthe rights of class members·
to seek individualrelief. and ofthe .
of evidence. the administrative judge '. the agency a report of findings.and
may, iri his or her discretion. direct that
recommendations on the complaint, .
procedures to be followed. Notice shall .
an investigation of facts relevant to the
be given by the agency within 10 days of
including a.reCommended decision~·
complaint or any portion be conducted· systemic relief for the class and any '.'
the transmittal of its final decision to the
by an agency certified by the'
individual relief. where appropriate.
agent~
Commission;' .....
(I) Rfllieffor individual class'
with regard tothepersonneI sctionM
(4) Both parties shall furnish to the
matter that gave rise to the complaint.
members. (1) When discrimimition is
administrative judge copies of all ' . .
(2) If the administrative judge finds no found. an agency must eliminate. or
materials that they wish to be examined. class relief appropriate.-heorshe:shall
modify the employment policy or .
and such other material as may be .
.determine if a fin4ing ofiridividual'
practice out ofwhich the complaint .'
,ret! uested~ ,';"
' . . ':..
discrimimition is warranted and, if So; . i arose and provide .individual relief, .
(g) Opportunity for resolutionof the
.' shall reCmnmendappropriaterelief;',
. incIudingan award of attorney's tees .'
compl(j'inL(l)Tbeadministrativejudge .
(3) The administrativejUcigeshalI:!
and costs; to thlfagent in accordance
shaUfurilish·th~ agenhmdthe"; .,",.;.... :;
notify the'ageucyof the date On'which..';·.:' .with § 1614.501~:':o'·i"~· '''', ;;,,;;\~.;:! .." ;:.'
. representi,l tive of.theagencY a copy of:. . the report offindings and,;:,~;(} j. "lDd .i ::'" .:; . . (2) Whim cIass:'.Wide' diildimiillttioD is'
.'. alllIla~nal!l:ObtaiJled,C9n~the.;'~·, recommendatiOns·wasforWaided to·the'i'~i1otfotind~:butit is'found'thiifthe 'CIa·ss)· . . .'
. compJail;1teAd ptYXideopportJmityJor:: . agency; : . .... . . ';~. ,..,,;,,;,:;
ageriHs:-s;VictiIri~ofdiscril.riirtation~' .' ..
a
tlip
of.:"';
lW.......
f"
�,
'
'::~::,;7;:~;::fi:;<'(~i<-;;!;'~!~~~~?~~~~?~~F~~\~~!~15i:::s~~~~W~i~fi;~;1J'~~~~~$;i(~i~~~~~~:~!;,f!~f~Jj;~~~f~€~!$,~~~·!;;;;~;'5;:~:;'.:\;:,:;;:, ,
,
.. '-••"":. ';-'.~' :.- :k -. ::.:: ~_. :':":~;••::: :!:..:~,..,~_':'~~:~ ... .: ••....•. ,.. . ., __ :.......", ...• _.
of the EEOC the. administrative record in
the proce~~iiichl.~'"
"
, (a):J.:1l~'fa~.at~coi~(rC,9M~iIJd hhd~~
this section.' whidHinall'iriCIlidEfa'
transcrip(o(8ny..~e~~(s): ~:,~':,.,
(b) 11le'de.c~~Q*s,~ss.u.edbYtheBoard
and theCoirinllssi6ii Wide'rS U.RC. 7702;
and;' '\' ': -.; :..': ':' :;" : '" . . . . .
; (c) A tranSCript of qraI: a'lgumtmts '. :
made., ~r legl!l br.ief(~HiJ~4. pef9r¢tlte.,
Board a~ath~~<;:OIDmission:, ;'i'''''':' '.: ,": ~
§'161~:307,;'~~;ha~~~~f'SjIecIaI PaneL'
',"" '..
~~.:
-,.
~;
-- ;.- - .. v.
'." _
..
,incurred by the SpecialPanel and,: to'the
extentpractiCjlbJe.~hl:llrequ,.llny.clivide
the,costS):lfp~gv.iding;~tlch ;;:;;(: '.;iidniiriistrative .assistance; The, " , .•
C!iairinini~rth~;Sp~·~.a.I;Pan~l!Jli~1l "', "
resolve the Iilanner; i,n ~h~~.~'l.s~are
divided in.the~"eilt .oradisagre~ment
between the ·-.Boardand the :EEOC.·)·. ',;'
(e) ¥aintenan~ olthe'o!fif;icilrecord.
The Board shall maint8.in theoffidal.~ c.,.·
recor1:LThe~~8:r9 shali'tr~nsniiHwo.".;.
order·ofthe Chainnan·of the Special
Panel. , " "
.
.,
, " , .. . .
§ 1614:309'
d!CI~lon.,
Enfo~ment'~f Specl~ip~nel
....
' . ' ;. .
. The Board shalL uponreceillt or~e
decisjcincif the Special Panetorder the
agencjd:oneemed'to take any action
appropriate tocsrry out the. decision :of
the Panel. The Board's ,regulations . .'
regardin&'emorcement of a fJilaI order. of
copiesofeaclt~ub~s!!ion filedtoeach : ~~:::tS!t~ct&I~~~:;di~~~:~rin~.
'
:.. ..... ,."
f"
Panel
'. :-""
.
.... ' . .
(a) The' S'p'-ed''a'1Pan-'''1:'' :, composed 0: member 9fthe SpecialLt",;,:.",,;.. in aD' ;~,
. '..
" e ,IS
expeditious.manner.;
. <>;,~._ ..
(lJ.AChamnan app~mtedby the' . . . ( f ) FiJingalld.service olpleadings., (1) § 1614.310;Rlght to file. a civil action;>
President with theadVlcean~ consent of ·."(he parties shall file the original'and six
An individuahvho has a complaint .
theSenate.and,whose.tenn IS 6~ears;
copies of all submissions with the Clerk. processed pursuant t05 CPR part·1201.
(~) (:lYle meIIlber~fJ~e:~SPB_..
.' .' .Merit SystemsProb~qtioriBoar<L.1t20,.
subpa rtE or this subpart is autliorized '.
desl8D:atedbr ,the _Cha~an of the:·" .Vennont Avenue. NW.• Washington. 'DC by 5. U.S:<.i: 7102 tonIe a civil ac;:tion in .
Board each time a panel IS convened.;
20419. One copy of each submission'
an apprd])1'iate. United States District'
and.:,.. <, ":,1',;" :~ •. , " ' .
shall be servedon the other, parties; .
Court: .
,
(~) One memthber of.t~e EEOC
(2) A certifi.cate'ofservice speci.fying
(a) Within 3Odaysofreceiptofa final
deslgn~t~d by e.Chamnanof ~e
howandwhen'.servieewasmade must
. decision issued'by an agency on a .
Com:m:tSSlon ea.chtimea panel IS .
accompany alhiJ.bmi~sionsof~e:'·· .
complaintUnlelJsan appeal is filed With
convened.
.
....
parties·,.,· ...·,··.: .. :" .. ·." .. ;;·.,,· ..
the MSPB:.or,
, , ; " ...
(b) Des"ignatioi{ofB..peCial Panel..
' . (3) S"·· ·c':' . . . :.c.;' ···.'b·':.:.:b: '.' ,:'U":~b" "; .. j',,: ':".'.fl...)W
.. ,ithin.','..30._.days of, re.ce.' ipt of.hQtice
.
'rLJ ) .,.,'"
.1 d 'r·· q - . .
. ' ervIcemay
e· y.,maor Y
l...
.
m~mb e&=,\l.'~ ~e:oJ. ~sJgn~ Ion. ". :' ;. . . . 'personaldelivery durl.n8rioririal".; i .. '. '.' of the fii:iill decis.lonor action taken by
.
Wlthm fivedapof.certifi.cation of the., b" > . h . . : (8:15 ";"'4'45: "':':)' Ou" the M.sP~jf.ili.~ilidivit!ualdoef notJ'ile .'
.caseJo tbeSpecial Panel~,the :Chairmari~: t~~e::oJit::tUfory~~e liDii~~hlti~s~'" a 'petition fc5r consideration With the, .
. of the MSPB·and·the,Chamnan.of.the
. . . . . d't'fli th'''b' ... ,,', b"" ,EEOC,; or 6 ~,<:i~,;": L:.,r;i~ ~; {'.,'::';;~'.".'.':' '
EEOCilhaRea.ch .desianate .0. ne:membe.r·t, are ~~':.U'et ..1.0 .... e •. , '~!l'.;.s~ 'h~~,Sdl?th;Ill! .. '~':;'
d
","
";""" . .•
. ovemll;ll' e Ivery serVIce-s 0lll: ey.,
(c)Within 3Q.days of.~ceipt of notice
from.thelr respectiveagenCles to,serve ". filehymaiL:"(':"":' '". ',';."'" ':,';r'l":';;~\';;":.: : that the CoIimUssion has. determined not
. ~n(~~=~'d!~~,,":~~;,t~~is'~f ":,, :'. (4)'T?~d.~ti~fipiiiii¥.all~"~;~:;i:~~, .,'1. to consi?e~·thJ 'decision' of ~~"MStBf~or'
des;"" tltlD.sJiiifbtlfer.vecfon the' ....• ;"',.:., ·?et~~edbY-.~~d~t~o.f:IIlIl,~:~:~,:;:.,·~~ .... ". (d) Within ~ d~ys of rec~Hpt ~f'~ob~e
'~:"'" . ..• ..~;.-... ...... . ..... mdicatedbytheoider:da~efor ~e"""~' ,", thaUhe Com:m:tSSlon con~WIth the
C bamnan of the.. SpeCIal.Panel'.... ;oveu,,-,&,. de1"lverysel'Vlce, If '.e .. ~"IS d,eC1SlOn'(): the. .; or~:' ,L,"'
M.:~""t
, ". ..... , th"fil" .. '..
,., . f
MSPB ' ,
. . 'th ,. al::. ;'.' .' .and the
p~es,}f). .~appe,_:,.::!"." ..:" ,"
by perso~al deliv.ery;:itshl,'illbe:"·' ' ( e ) If.the:Commission.issues a:; ,::....... ' ..
. '§ 161~.308'P~cti~'~nd:pro'cedu~ of
considered filed orithat date-itis',
decision differentfrom.the:decision of .
the Spect8I PaneL" ,,,,' t.c';,·.;.. .',' ...... , . . .
rec!lived hi the office' of .the· Clerk:,
fue.MSPB; within'3O days of receipt of
(alScope.;1'li~'rut~~ 'iiitiriisub~art;:' MSPB. . ' '. "; :- >J.c 1 : "'0 ,'. . -. (,:. i ,.', notice thafthe MSPB toncursin 'and-c.
applY'toPro'cee4ihgs. befO're)heSpeCiai
. (g) Biif!!/s aAd i-e'sp'on$i~epleadtngs: If" ado~t~in ~holethe decision of the'
Panel'·,' ;•.. !, " :, .• '" ,.', ,; ,.<. .... . " the parues·Mshto·:subinifWrltle·ri . · c.', ;::), COIilrnissioD: orE
" '.'
,(blS~sp~~sl~nJ;Ifz!je(¥thii$,ubPaii. argument; briefs·' shall oe:filed,with.tbff':': (f) If tbe;MSPB does noiconcur with
Iri th.e.in.~er~stofe~pedi~g:a:dei::isio" .• ',. SpeciaIParielwithiIiis'da:ys'of the'da~e:';. the deCision of the Commissionand c :.;· .
or for good cause'shown.the Ch'aiiman.; of the Board's certification order:.- DUe to' reaffmns its,initialdecision'or reaffinns
of the Spetial Panel
except where
the short statutory time limit;resp~)Dsive its initial decision with a revision; ..
. the ruleiil this subpart isrequiredby
. plea~ings will n?rordiiiaii~y be: .
within 30 days of the receipt of notice of
s ta tute, suspend theMes iIi this 'subp'art pennilte(j.· ...• " '. '.c..:: .'..i ". . .
the decisiQn of' theSpecial Panel; or .
on appli.cation of Ii party; or on his or
'(h)~Oral aIBUl11enL}1iepartiE1~ ~~ve.
(g)After120.days from the. date of
her oWIim:otion.andmaY order'
the ~ght~o ~ral~e~t d~~¥;Eld.
. filirig~JOI:mal complaint if there·.is no .
proceedings in aC,cordanee' With his 9r .' Parties. WI,sh.mg...t.o exercl.S!l",.thi,. 8.n.gb.r.
final action o.r appeal to the MSPB.; .or
her direction.'" .
' ': "...
sba.n sO.mdlqte.at ~e.t~me.of fibryg : .
(h) After 120 days from the date of ,
(c) Time limit for {irpceedings.'
. their bnef, or lfno b.q~flS filed;;-.y..~ , filing apappeal with the MSPB if the.
Pursuant to 5U.S.C;7102(d)(2)(A).the
. 15 d!lYs o,f the date of the Boa:ds . .
MSPBhas not yet made a decision; or
Special Panel shall issue a decision
certification order. Upon rece~pt of a .
(i}.After 180 days from the date of .
within 45 days of the matt~rbeiIig
request ~or argument. th~Chal~man of.. . filing a petition for consideration with
certified to it.
t~e Specl~l Panel s11a11 deterIllme the
Commission if there is no decision by
(d) Administrative assistance to.
t~me ant:! placeJor_argum~ntandthe
. the Commission. reconsideration , .
Special Panel. (ll The MSPB and the'
bme t~ be all!;lwef"each Side. ~~~hall
decision by the MSPB or deci!>ion by the
EEOC, shall provide the Panel·with such so ?otify the parties. . " . ;.',', .... Speeiaipanel.
.
reasonable,and necessary,,· .
(I) Post--alBumeilt submISSIons. Due to
. ',' .
a~!nistr!ltive ~~so~l;~sas: de.tl'lrmined
the short statutory time limit, no, post~: . Subpart o';";'Appeaisand C.lyij' Actions
by the ChaipnaIu>f the ,Special panel. , argumen~s.\lbr.nissi.()n.sw.ill.pepermitted';;·· ..;.;:
..;;'" .
, (2) Assistance ,s~ll11 ,~~\ude: put is not,· except by qrdei;, pfJltE!,.Gltah;nan 'of the
§ 1~1.4,~o.1.;·Appeals to. the Commission; .,
may;
if.
~.~J~;'~~~~i';~;~~l~{:~r~~{~;~:~.~.P:~~:;.:,c. ~ SP(i)~;:C~d~~~jh~ii.d~~.'~~K':'~';. ~.E'~ c":~" ag~~d~~~~~~~~:i~Io~~~~~m;~:~cif~~·s
s
·.C
.. '
(3)~f·,~q8f4~1J..~~m~,·~9P}.~?11 lje.Jr , (. proce<!,lJI ! ,m,8JtEtl:l:l,p.Q~j~q!itEl.~sed,in:;this;) .d~s~is~alof'all ot·.·a:· portiori ofa'5 f:."': "
resp,()';l,Sl81~~~~; ~lb~",%¥,~sH'~!l~~;cos~1 h(! su,bp,art ~hll!I.Qe~(i~Q~v~!:i bY::Written; ..,'. :' 'complaint. .
..': ::r{;~ ;'T."~ 'fc:·:
.
�(
�SUMMARY
29 C.F.R. PART 1613
Under the President's Reorganization Plan No. 1 of 1978,
responsibility for equal employment opportunity in the federal
government was transferred from the ,Civil Service'Commission to
the Equal Employment opportunity commission. Existing Civil
Service Commission regulations at 5 C.F.R. Part 713 were not
rewritten, but merely adopted by EEOC and redesignated at 29
C.F.R. Part 1613. Part 1613 governs agency processing of
complaints of discrimination. Individual complaints are
investigated by the employing agency, with hearing and appeal
rights to EEOC. There is no time limit within which the agency
must complete its investigation or issue a final decision on the
complaint. An employee may ,elect among the EEO, the MSPB or
grievance process; decisions of the latter two on ,discrimination
issues are subject to EEOC review. Class complaints are not
investigated by the agency, but proceed to hearing before EEOC,
with appeal rights to EEOC.' Aggrieved employees or applicants
have the right to file a civil action, which terminates
administrative processing.
�EXECUTIVE SUMMARY
29 C.F.R. PART 1613
Under the President's Reorganization Plan No. 1 of 1~78,
'responsibility for equal employment opportunity in the federal
government was transferred from the Civil Service Commission to
the Equal Employment Opportunity commission.
Existing civil
Service Commission regulations at 5 C.F.R.Part 713 were not
rewritten, but merely adopted by EEOC and redesignated at 29
C~F.R. Part 1613.
Consequently, Part 1613 is organized according
to the type of discrimination at issue.
Part 1613 sets out agency regulations for processing
complaints of discrimination. Before filing a formal complaint
of discrimination, a federal employee must undergo precomplaint
counseling, during which time a counselor will meet with the
complaining party and agency officials to attempt informal
resolution.
If no settlement is reached,' the complaining party
may file a formal complaint of discrimination which wi~l be
investigated by the agency itself.
Following the investigation,
a period is again set aside during which another attempt is made
at informal resolution. Failing settlement, a proposed
disposition is issued and the complainant may request a hearing,
or a final decision be issued by the agency, from which the
Complainant may appeal to the Office of Federal Operations.
Although the hearing is nonadversarial, the parties may be
represented by counsel, and evidence is introduced and
conclusions of law are drawn: The Commission's administrative
judge issues a recommended decision to the agency, and. the agency
then issues a fin~l decision. This final decision (or one
requested by the complainant withou~ a hearing) may be appealed
to the Office of Federal Operations,whichwill again weigh the
evidence and draw conclusions of law.
There- is no time limit in which the agency must complete its
investigation or issue a final decision.
If however, 180 days
elapse without the issuance of a final decision, the complainant
has the right to file a civil action. The filing of the civil
action will result in termination of further administrative
processing.
A person cannot file both a mixed case complaint and a mixed
. case appeal; (s)he must elect the forum in which to proceed. Any
MSPB decision on prohibited discrimination may be reviewed by
EEOC. Similarly, most federal agency employees cannot file both
a Part 1613 complaint and a grievance; they must elect the forum
in which to proceed. The employee may appeal the issues of
employment discrimination to EEOC.
-
A group of employees may file a class complaint of
discrimination. There is no investigation following the formal
complaint; instead, the complaint is forwarded to an
administrat.ive judge who will recommend if the class should be
rejected or certified. If the class is certified, class members
are given the opportunity to opt out, and the matter 'may proceed
to a hearing with the remaining class members before an
administrative judge, who conducts the hearing in the same manner
as the individual complaint hearing.
�29 c'.F,R. PART 1613
Under the President's Reorganization Plan No. 1 of 1978,
responsibility for equal employment opportunity in the federal
government was transferred'from the civil Service commission to
the Equal Employment Opportunity Commission.
Existing civil
,Service Commission regulations at 5 C.F.R. Part 713 were not
rewritten, but merely adopted by EEOC and redesignated at 29
C.F.R. Part 1613. With the exception of subpart 0, "Processing
Mixed Case Complaints," which was added in 1983, and an amendment
in 1987 that clarified arid modified various sections, the
'
substance of these regulations remains unchanged.
.
Part 1613 governs agency processing of complaints of
,
discrimination, the appeal process, and remedial actions.
It has
separate subparts for processing Title VII, ADEA, and
Rehabilitation Act 'complaints l and for processing indivi~ual,
mixed case and class complaints. Because the substance of Title
VII, the ADEA and t~e Rehabilitation Act is not at issue, this
memo will focus on the procedures for processing complaints under
'any of these statutes.
A person who believes ~s)h~ has been'discriminated against
because of race, color, religion, sex, national origin, age or
handicapping condition ~ust,.within 30 days of the occurrence of
the alleged discriminatory event, consult with an equal
employment opportunity counselor to try.to resolve the matter,
The counselor must make whatever inquiry (s)he believes necessary
to seek a solution of the matter. After 21 days, the counselor
must inform the person in writing of his or her right to file a
complaint of discrimination. The complainant must file the
complaint within 15 days.
INDIVIDUAL COMPLAINTS
The agency must accept the comp'laint for investigation or
reject it.
If a complaint (or an allegation in a complaint) is
rejected, the complainant may appeal the rejection to the
.
Commission or file a civil action.
If the complaint is accepted
for processing, the agency must investigate the facts surrounding
the alleged discriminatory event. The investigation must include
a thorough review of the circumstances under which the alleged
discrimination occurred and a comparison of the members o~ the
complainant's group with other employees in the organizational
segment in which the alleged discrimination occurred.
.
Following the investigation, the agency must'give the
complainant a copy of the investigative file, and provide an
,
opportunity for the complainant to discuss the investigative file
with appropriate officials. If the parties are unable to settle
the matter, the agency will issue a proposed disposition of the
complaint and will offer the complainant a hearing or a finai
)
,
r
�decision by the agency . . If the complainant fails to act upon
these offers within 15 days, 'the agency may, adopt the proposed
disposition as its final decision.
If the complainant chooses a hearing before an
administrative judge, the administrative judge reviews the
investigative file and will remand the matter to the agency if
further investigation is needed. If further investigation is not
needed, the administrative judge may determine that there are no
issues of material fact and issue a recommend decision without
holding a hearing. If a hearing is necessary, the administrative
judge will receive relevant evidence and order the production of
documents. The administrative judge then issues a recommended
decision which is binding on the agency unless the agency issues
its own final decision within 60 days.
within 20 days of receipt, the complainant may appeal the
final agency decision to EEOC. There is no right to a hearing on
appeal. If EEOC orders corrective action, the agency must report
the corrective action it has taken. within 30 days, either party
can move to reopen the case; the Commission can move to reopen
the case at any time. A complainant may petition the commission
for enforcement of a decision issued under the Commission's
appellate jurisdiction.
A Title VII or ~ehabilitationAct complainant has the right
to file a civil action 180 days. from the date (s)he filed the
formal complaint, 180 days of the date of filing an appeal with
theComrnission, within 30 days of receipt of the notice of final
action taken by the agency, or within 30 days of receipt of the
Commission's final action. The regulations do not indicate the
statute of limitations for filing a civil action under the ADEA.
The filing of a civil action bya complainant terminates
administrative processing.
The regulation does not contain any time limits in which the
agency must complete its investigation of the complaint or issue
its final agency decision.
MIXED CASES AND GRIEVANCES
A complainant cannot file both a mixeq case complaint and a
mixed case appeal; (s)he must elect the forum in which to
proceed. A complainant who files a mixed case complaint is not
entitled to a hearing before an EEOC administrative judge. If no
agency decision is issued within 120 days, or if the complainant
is dissatisfied with the agencY'sd~cision on the mixed case
complaint, (s)he may appeal the matter to the MSPB. If the
complainant is dissatisfied with MSPB's decision on the issue of
prohibited discrimination, (s)he may petition the Commission for
review. Any dispute between the commission and the MSPB is
certified to a Special Panel for decision.
2
�.\
Employees of certain agencies cannot file both an EEO
complaint and a grievance on the same matter; they must elect the
forum in which to proceed. An aggrieved employee who files a
grievance in writing ,with an agency whose negotiated agreement
with an employee organization permits the acceptance of
grievances which allege discrimination prohibited by Part 1613
may not thereafter file a complaint on the same matter under Part
1613. The employee may appeal issues of employment
discrimination to the EEOC from the decision of the agency, of
the arbitrator on the grievance, or of the Federal Labor
Relations Authority on exceptions to the arbitrator's award.
CLASS COMPLAINTS
A group of employees may file a class complaint o~
discrimination if 1) the class is so numerous that a consolidated
complaint of t~e members is impractical, 2) there are questions
of fact common to the class, 3) the claims of the agent are
typical of the claims of the class, and 4) the agent will fairly
and adequately protect the interests of the class. Unlike
individual complaints, there is no investigation following the
formal complaint; instead, the complaint is forwarded to an
administrative judge who J;"ecommends if the class should b'e
rejected or certified. The agency must issue a final decision
(from which the class agent may appeal) on the administrative
judge's recommendation. If·the agency accepts the administrative
judge's recommendation certifying the class, all class members
are notified of their right to opt out, and the remainder of the
the class can proceed to a hearing on tlie merits. After
receiving evidence on the facts, the administrative judge issues
a recommended decision which, like the individual complaint, is
binding on the agency unless the agency issues its own final
decision within 60 days.
'
A class membe~ may submit a written claim for a remedy
within 30 days of notification of the agency's final decision.
If the agency disagrees with the member's entitlement to remedial
relief, the agency. will submit the issue to the administrative
judge who issues a recommended decision on the·individualclaim.
If the complaint is settled, 'any class member who believes
that the settl~ment is unfair 6r unreasonable may, withiri 30
days, notify the agency that the settlement of his/her opinion on
the matter and petition that (s)he be substituted as class agent.
If a new class agent is substituted, the prior resolution is
vacated, and the agent may-engage in new settlement negotiations.
A class agent may file a civil action within the same time
limits as set out for indiyidual complaints, and like the
,individual complaint, filing a civil action terminates
administrative processing.
3
�Reasons for changing the 1613 Process
1.
The process was too complicated and too cumbersome.
Complainants were required to know too much about a process
tha~'
I
could be very complicated; it was impossible for anyone outside
the EEO area to understand the pitfalls that awaited the
complainant.
There was too muchback-and-forth in the process.
There were too
many, decision points where decisions could cause a case to go in
one of many different directions.
2.
The process was not fair - the fox was in the henhouse.
Many objected to the absolute control that agencies had during
counseling and during investigation.
There was no mechanism to
oversee what agencies were doing in the counseling or
investigative stages.
Agencies could reject complaints even if
they knew the grounds for rejection were not proper, agencies
rejected AJ decisions thpt found discrimination but accepted
those that found no discrimination.
3.
The process took too long - there was no timely resolution
of complaints.
Prior to 1987, complaints about agencies letting complaints
languish in counseling were numerous.
-While the 1987 amendments
to 161j reduced the number of complaints about eternal
counseling, it did not eliminate the problem.
Complaint
investigation at too many agencies took too long.
Every year
more than a dozen agencies reported an averalJ'e, complaint
processing time of over 1,000 days for merits decisions.
Delays
�also exacerbated the unfairness in the system - agencies did not
have any deadline for moving a Gase and used delays as a means to
ignore some complaints.
�---
'"
.
PROCEDURES FOR PROCESSING INDIVIDUAL
COMPLAINTS OF DISCRIMINATION
C,"uu wllh no (Hoi. " I
~n..tOf who ,,~u
1)£11.,,1"'.0.1.0( Alt9td
OI~/1INft ~ Ptt'lOMtA
A.c: U011. Of
2)
a IMt ....... p.~
A.c: UMI Oc WI.
'
10 r.son. Inle»m.lI,.
DkctttVI.,.,
.....
• I
0.,.•
:s.oC~OI.,
21 C.ltndtt
~
AgMer R'ltel.
" r~ul.llol'141
0.01 mIl
No further tellon
CI,.,lIaftcllon
FII. form.1 complalnl wllh Igton
DlrKIe» EEO; F.. ld
HOld, FWP M.n.g.r; OIMr.
Olllgn.led
c)' .... d;
Complainant rnicws
Invuli<ivO ru.. •
No lur1h.er acllon
I
hU.1..eIOlY'
r"~ullon. i
I
1n,"lIg.llon Ind '
eUempl .1 ~Iu.lmtnl
I
Ag.nc)' lehtdul.i
In",lIglllon"
I
O.,.rturna Itl·ellon,
Ord.,. Agenc), 10 Proce..
Complaln,nl appeal, 10 EEOC,
Olllce 01 Anl.wond App. Al,
Idjualmenl.
1ft wrillng
NOTE 1 :
u ..".. c~n .. lUfg Inltnl<lw n<>4
CQ"'9leled by 2 hi cUy.
c~.-'or MUST nollf)' com·
praMit'll 011 2 h' cUy 01 righl 10,
lUI ~m&t CQmpllWnl II .nr 11m.
!he/tall., and up 10 15 day' IlIe,
Nod Inle,..,'..- Ia com~.I.d.
LAII., tMtvWng Com pi aJn,an I 01 .
plopoud dhpoIIUon and rlghl
10 AOtnc)' dKldon with Of
wUhoui.8 Maring
•
NOTf 2
II AgMe," don nol mNt • fin&!
cH ddOfl wll hltI 11 0 d
.It I f
Ung oll()(m'" compblnl. com
plWl1t'l1 m'r nl-t elw. Klion rrilh
U.•• DhLr1<:1 Court.
a,.
cUr', Propoltd drapoalllon ~
J 01...11111<:1I0Il
Han l
I,'
d-Kltlon .. 1'1..0. will'll.n 11.0 ,
d.,. m'r III. chllocllon with
phl.nenl
n4I
Ollll.lng oltpp,tal. CO"'·
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�Union Calendar No. 287
lOOth Congress, 1st Session -
-
-
-
-
-
-
-
-
- House Report 100-456
OVERHAULING THE FEDERAL EEO COMPLAINT
PROCESSING SYSTEM: A NEW LOOK AT A
PERSISTENT PROBLEM
TWENTY-NINTH REPORT
BY THE
COMMITrEE ON GOVERNMENT
OPERATIONS
. NOVDlBER
.
23, 1987.-Committed to the Committee or the. Whole House on
the State or the Union and ordered to be printed
u.s. GOVERNMENT PRINTING OFFICE
WASHINCTON: 1987
�COMMITTEE ON GOVERNMENT OPERATIONS
JACK BROOKS. Tens. ChairmlJA
JOHN CONYERS. JR.• Michigan
FRANK HORTON. New York
CAROISS COLLINS. Illinois .
ROBERT S. WALKER. Pennsyh'ania
WILLIAM F. CLINGER. JR.• Pennsvlvania
GLENN ENGLISH. Oklahoma
AL McCANDLESS, California
•
HENRY A. WAXMAN. California
TEO WEIss. New York
LARRY E. CRAIG. Idaho
HOWARD C. NIElSON. Utah
MIKE SYNAR. Oklahoma
STEPHEN L. NEAL. North Carolina
JOSEPH J. DIoGUARDI. New York
DOUG BARNARD. JR.. Georgia
J.IM LIGHTFOOT. Iowa
BEAU BOULTER. Texas
BARNEY FRANK. Massachusetts
TOM LAt.'TOS. California
DONALD E."BUZ" LUKENS. Ohio
AMORY HOUGHTON. JR.. New York
ROBERT E. WISE. JR•• West Virginia
MAJOR R. OWE!'IS. New York
J. DENNIS HASTERT. Illinois
• JON L. KYL. Arizona
EDOLPHUS TOWNS, New York
JOHN M. SPRATT, JR.. South Carolina
JAMES M. INHOFE. Oklahoma
CHRISTOPHER SHAYS. cOnnecticut
JOE KOLTER. Pennsylvania
BEN ERDREICH. Alabama
GERALD D. KLECZKA. Wisconsin
ALBERT G. BUSTAMANTE. Texas
MATTHEW G. MARTINEZ, California
THOMAS C. SAWYER. Ohio
LOUIS M. SLAUGHTER. New York
BILL GRANT. F10rida
NANCY PELOSI. California
Wlu..tA" M. JONES. GeMrni Cou.llUi
EMPLOYMENT AND HOUSING SUBCOMNITI"EE
BILL GRANT. Florida
TEO WEISS. New York
NANCY PELOSI. California
TOM LANTOS. California. Chaimuut
JOSEPH J. OtoGUAROI. New York
JON KYL. Arizona
CHRISTOPHER SHAYS. Connecticut
Ex
JACK BROOKS. Texas
STuART
JOY
R
E.
WEISBERG.
OFflClO
FRANK HORTON. New York
SlIJff Dinctor aNi. Cou.IlUI
JUNE SAXTON.
Clu"
SIMONSON. Prof~iDn41 Staff M(!m~r
MATTHEW BEHRMANN.
Minority Prof_iollal Stoff
�"
LETTER OF TRANSMI'ITAL
HOUSE OF REPRESENTATIVES,
Washington, DC, Nouember 23,1987.
·~nla
Hon.JIM WRIGHT,
Speaker of the House of Representative~,
Washington, DC.
DEAR MR. SPEAKER: By direCtion of the Committee on Govern· .
ment Operations, I submit herewith the committee's twenty·ninth
report to the lOOth Congress. The committee's report is based on a
study made by its Employment and Housing Subcommittee.
.
JACK BROOKS, Chairman.
(1111
�CONTENTS
1.
II.
III.
IV.
V.
Introduction...............................................................................................................
Background................................................................................................................
Findings and conclusions........................................................................................
Recommendations ................................_ ......._ •.._..............................................
Discussion ..................................................................................................................
A. The fox in the henhouse. or the accused as judge and jury ................
B. Justice delayed is justice denied...............................................................
C. The backlog grows steadily higher...........................................................
D. \Vhy the delays? ..............................-..........................................................
E. No big stick at EEOC...............~..........._.•.•__.............................................
F. Resources needed for a centralized system.............................................
G. The interminable regulatory process.......................................................
VI. COnc1usion.............. _.................................................................................................
(V)
roc.
1
2
3
5
6
6
7
10
10
.11
12
13
13
�Union Calendar No. 287
tOOnf CoNCRESS
1st Session
HOUSE OF REPRESENTATIVES
REPORT
100-456
OVERHAULING THE FEDERAL EEO COMPLAINT PROCESS
'ING SYSTEM: A NEW LOOK AT A PERSISTENT. PROB
LEM
NOVEM8ER
23. 1987.-<::Ommitted to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. BROOKS, from the Committee on Government Operations,
submitted the following
.
TWENTY-NINTH REPORT
BASED ON A STUDY BY THE EMPLOYMENT AND HOUSING SUBCOMMITIEE
On November 10, 1987, the Committee on Government Oper
ations approved and adopted a report entitled "Overhauling the
Federal EEO Complaint Processing System: A N:~w Look at a Per
sistent Problem." The chairman was d.irected to transmit a copy to
the Speaker of the House.
I.
INrnODUCTIoN
In response to numerous reports of excessive delays and inequita
ble procedures in handling Federal employees' equal employment
opportunity (EEO) complaints. the Employment and Housing Sub
committee conducted an investigation and held a series of he~rings
beginning in 1985. 1 The hearings examined EEO complaint process
ing by individual agencies and by the Equal Employment Opportu
nity Commission (EEOC).
.
At the subcommittee hearings in October '1985, June 1986, and
June 1987, the EEOC itself was the focus. At the September 1986
hearing, the problems of four executive departments were exam
ined. Witnesses at the hearings included individuals who had been
severely frustrated by the system in· pursuing discrimination
• "Processinj( EEO Compl~ints in til., federal &ctor-Problems and Solutions." October 8.
June 17. 19~';: s.,·ptcmb<-r 25. 19£6: and June 2S. 1987.
19~5:
(l)
�..
~
..
",
'. \
".
2
charges against Federal agencies, civil. rights advocates, current
and former EEOC officials, and officials of other agencies.
In 1986 the subcommittee sponsored an extensive survey of the
EEO complaint system for Federal workers by the Washington
Council of Lawyers. Representatives of the Washington Council of
Lawyers testified at the subcommittee's June 1987 hearing about
the results of their study of four Federal agencies, which included a
survey of some 350 persOnnel, interviews With officials, and a sta
tistical analysis. Their report, herein called "Lawyers Report," is
reprinted as an appendix to the June 1987 hearing record.
II.
BACKGROUND
In 1978 Congress acceded to Reorganization Plan No.1, which
transferred from the then-existing Civil Service Commission (esC)
to EEOC the responsibility for handling Federal employees' EEO
complaints. EEOC continued theCSC ,procedure of delegating to
agencies the responsibility for investigating and deciding discrimi
nation charges made by their own employees.
This system, which has been the subject of repeated congression
al and General Accounting Office criticism, as well as almost a
decade of planning for changes, remains basically unchanged.
, ,Briefly, it provides for the following steps:
An applicant or an· employee who believes he/she has been
discriminated against takes the problem to an agency EEO
counselor, who attempts to resolve it.
Should the counselor's efforts fail, the person may file a
formal complaint, which the agency investigates. Upon com
pleting its investigation, the agency makes the case records
available to the complainant and attempts to settle the matter.
Should the attempt at settlement fail, the agency presents
the complainant with a proposed disposition of the case. The
complainant requests a final agency decision or, if not- satis
fied with the proposal, can ask for a hearing before' an, EEO-:;
complaints examiner, now called an Administrative Judge.
If a hearing is requested, the case is sent to EEOC. A com
plaints examiner' then holds a hearing on the matter and
issues a recommended decision to the agency.
The agency then issues a decision that mayor may not agree
with the recommendations made by EEOC's complaints exam
iner.
'
If the complainant is not satisfied with' the agency decision,
he/she may appeal that decision to EEOC's Office of Review
and Appeals (ORA), which issues the final decision. However,
EEOC is not empowered to require agencies, to comply with its
final decisions.
, If the complainant or the agency iS,not satisfied with ORA's
decision, either party can request reconsideration by EEOC's
commissioners.
,
A complainant may file a civil action in Federal district
co.ur~ 180 days after filing the complaint with the agericy or
wlthm 3~ days. of receiving the final agency decision.'
The ~ollow,!ng diagram illustrates the complex procedures and
. the various time limitations:
t
t,
�3
ALt~CtO ACT or etSC1tMtWAftow
(01 trreCt1Yt DAft or re1S0•• 1L ACTIO.)
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III. FINDINGS AND CcNCLUSIONS
The committee is compelled to agree with the statement of EEOC
Chairman Clarence Thomas (testimony before the subcommittee in
1985. repeated in 1986) that
the current system .•. is inef
fective. unnecessarily time-consuming, and ten times more costly
than the processing of private employer charges." (I Tr. 63; II -Tr.
28.) 2 Similarly, the GAO concluded in 1483 that the system "is nei
H •••
• Roman numeral I prea!din!: a transeript ITr.! reference refen to the prinl.ed AlCOrd of the
Oct. 8. 1985 subcommittee hearing_ Roman numeral II refers to the June 17. 1!186. hearing.
Continut'd
�ther effective nor efficient:' ["Problems Persist in the EEO Com
plaint Processing System for Federal Employees," GAO/FPCD-83
21. p. 26.]
1. The decentralized system under which agencies investigate
and act on discrimination charges against themselves is a clear
conflict of interest. With "the fox in charge of the henhouse," the
system lacks credibility with employees. Fundamental fairness,
and, importantly, the perception of fairness-require that an inde
pendent third party be the adjudicator of discrimination com
plaints.
.
2. Intolerable delays in completing action on employee EEO com
plaints plague the system at every stage. Most agencies, including
the EEOC itself, fail to meet. regulatory timeframes. Government
wide, the average time for closure of all cases was 349 days in
Fiscal Year 1985. Even worse, the average time for decision on the
merits by all agencies was 630 days. The worst agencies were the
Departments of Education at 1,709 days, Justice 1,615 days, and
Treasury at 1,229 days. Additional delays at the Office of Review
and Appeals (ORA) of EEOC present a special problem.
3. The inventory of complaints on hand in the agencies rose from
13,700 in Fiscal Year 1982 through Fiscal Year 1985 to over 19,000.
Obviously, the increasingly clogged pipelines contribute to delays
and to the frustration of aggrieved Federal workers.
4. There are no incentives or pressures on agencies to meet regu
latory deadlines or to expedite any stage of the complaint process
ing.
.
5. Part-time or" collateral assignments and inadequate training of
manyEEO personnel underscore the low priority given to the EEO
mission by agencies.
6. The system is unnecessarily complex; leading to duplication of
efforts, delays, frustration, and loss of morale forEEO staffs as
well as complainants.
7 _The EEOC, operating under Title VII of the Civil Rights Act of
1964, lacks power to enforce its rulings vis-a-vis other Federal agen
cies. At the end of an administrative process, which may last 6 or 7
years, an employee may be forced to hire an attorney at his or her
own expense in order to go to district court fora judgment to
compel compliance by the agency with an EEOC decision. The role
of the Justice Department in such a lawsuit poses many problems
8. Since it assumed the Federal sector tesponsibility in 1979,
EEOC has recognized that major changes in the system were re
quired, but it has not yet succeeded in promulgating new regula
tions to effect such changes. During the past 4 years the subcom
mittee has he.~rd much testimony from EEOC officials about inten
tions, drafts, coordination, and re-drafts. Yet at the end of Fiscal
Year 1987 we are still far from a revamped Federal EEO complaint
processing system.
.
9. If EEOC is to assume centralized or Government-wide respon
sibility for processing Federal employee complaints, it will require
a sizable increase in staff and budget (a major portion of which
could be transferred from the agencies relinquishing the tasks). Ad
Rom3n numeral '" refer.; to the Sept. 2:', I:.tRG. hearin~. Roman numeral IV refer.; to the June
25. 1!l1i;. hearing.
�5
ditional training for personnel from counselors to Administrative.
Judges is also essential.
10. A widespread lack of mutual respect and trust between EEOC
and many agencies exacerbates the problems of the current system
and further delays development of an improved system.
11. Union contracts with the U.S. Postal Senrice permit workers
to file complaints with both the EEO system and, the personnel
grievance system that leads to the Merit Systems Protection Board
(MSPB)' This results in a large number of charges that are outside
the jurisdiction of Title VII and the EEO system clogging the pipe
Jine and. above all, unnecessarily burdening the the Orfice of
Review and Appeals (ORA) at EEOC:
IV. RECOMMENDATIONS
A. The processing of Federal employees' EEO complaints must be
removed from the agencies and centralized iri an independent body.
Despite persistent criticisms of EEOC's operations in both the
public and private sectors, it is clearly the logical and appropriate
agency to assume this role. To establish a new entity solely for Fed·
eral sect9r problems would be duplicative and inefficient.
The years of delay in revamping the structure via regulations
and the power of OMB to obstruct such regulatory changes show us
that congressional action is essential. Reluctance to amend Title
VII, while understandable, should no longer block legislation that
is necessary for Federal employees to obtain justice. "
EEOC must be given clearcut authority to enforce its decisions
vis-a-vis other agencies .. It is intolerable that an employee can go
through a lengthy and complex administrative process, obtain a fa
vorable ruling against the agency, and still be denied relief because
that agency chooses not to comply with the EEOC decision. At the
very minimum EEOC should be empowered to represent such an
employee in district court,. should it be necessary to seek a court
order enforcing the EEOC decision.
.
.
EEOC's administrative judges "should have authority to deter
mine whether a hearing is necessary to develop a record adequate
to support an adjudication of the case. Judges may consider the in
formation developed during counseling at the agency. material pre
sented at a formal or informal fact-finding meeting held by the
judge, data obtained by discovery or investigation authorized by the
judge, or evidence adduced at a hearing when the judge deems such
to be appropriate.
An appeal to the EEOC (presumably functioning through its
ORA stam by either party should be permitted.
A· carefully"aevised transition plan is essential to avoid over
whelming EEOC with an impossible new workload. Phasing in of "
the new system could be based on groups of agencies, stage of com
plaints, or a combination of factors.
.
The revised statute and implementing regulations must include
reasonable deadlines for each stage of complaint processing. Con
gress must commit adequate resources to permit EEOC to comply
with those deadlines. We are convinced that after an appropriate
transition period there will be a considerable net saving to the gov
ernment as OMB transfers funds from agency EEO operations to a
«
�6
single agency with the advantages of greater expertise and econo
mies of scale.
Precomplaint counseling of employees should remain a responsi·
bility of the employing agencies. The first step for an employee
with a job discrimination problem should be close to the worksite
and readily accessible. The current statistics wh.i&h show that over
75 percent of counseling contacts do not lead to formal complaints
underscore the importance of this step.
However, the role and skills of the counselors must be strength
ened. Wherever the size of an agency component justifies it, a full
time counselor should be employed in lieu of the current part-time
assignments. Counselors require more initial and updating train
ing. Settlements should be encouraged and facilitated at the coun
seling stage without, necessarily, a finding of wrongdoing.
The current limitation of 21 days for completion of the counsel
ing process should be maintained, with a written report to the em
ployee by this deadline. Employees should be free to file a formal
complaint with EEOC within 15 days of receiving such a report.
B. Administrative judges at EEOC are largely at a classification/
pay grade lower than similar officials in other agencies, primarily
because their decisions are only recommendations to the agencies.
Under a revised statute their decisions would be binding on agen
cies. The judges' grade should be made equal to others with final
decision authority.
Without awaiting other changes in the system, EEOC should
move promptly to increase support personnel or equipment avail
able to administrative judges. This can be a cost-effective means of
expediting the judges' output.
.
C. Negotiations with the Postal Service unions are required in
order to eliminate the option of "double filing" of complaints under
both the grievance and EEO systems. Postal workers have no in
herent right to "two bites at the apple" when other Federal work
ers do not.
V.
DISCUSSION
A. THE FOX IN THE HENHOUSE, OR THE ACCUSED AS JUDGE AND JURY
The system of agency self-investigation and decisionmaking is so
obviously contrary to normal methods of handling adversary
charges that it has been criticized repeatedly by Congress, GAO,
civil rights advocates, attorneys and, above all, by complainants
who are victimized by it. The system discourages employees from
filing complaints as well as discouraging (even intimidating) others
from acting 20-3 representatives or witnesses for complainants.
The Council of Lawyers study discovered that agency EEO per
sonnel, both counselors, investigators, and even decision making of
ficials, feel pressures to find no discrimination. Some agencies re
quire additional steps and more work to justify findings of discrimi
nation. EEO staff are faced with "difficult demands on them to act
.as advocates or loyal employees of their agencies and yet give EEO
claimants who challenge their agencies' practices a fair shake."
(Lawyers Report, Summary p. 6.)
In many instances alleged discriminating officials themselves are
involved in various stages of counseling and complaint processing.
':"'~
�7.
Such involvement reduces the likelihood of a settlement that may
be viewed as an admission of guilt. Some EEO personnel and
agency attorneys reported feeling themselves to be defenders of the
agency and adversaries of the complainant. The Lawyers Report
concluded: CIA significant number of the survey respondents and in
terviewees viewed the dual responsibilities with which the agencies
are endowed-to defend against and to adju:dtcate discrimination·
complaints-as creating an intractable conflict of interest that sub
stantially impedes the operation and effectiveness of the EEO ad
.
ministrative process." (Pp. 25-26,)
B. JUSTICE DELAYED IS JUSTICE DENIED
Annual reports issued by EEOC (usually 2 years late) give a
shocking picture of the tortuous, snail-like processing of Federal
employees' EEO complaints. The bleak statistics have been brought·
to life for the committee by a continuing flow of individual tales.
several of them presented in moving testimony at the subcommit
tee's hearings.
A State Department political analyst told the subcommittee
about her "41fz year nightmare." Jenifer Noyon was fired the day
after she filed a complaint of sexual harassment. During the
lengthy investigation, a Department attorney reviewing the case
admitted that she "wore two hats," representing management and
·complainants. After State found no discrimination, Ms. Noyon re
quested an EEOC hearing. The hearing and decision, which found
in her favor, took an additional 18 months. The department reject
ed the EEOC recommendation. Ms. Noyon appealed to EEOC's
Office of Review and Appeals, whieh did not even assign the case
for, review until some 17 months elapsed. At that point, 4Y2 years.
after her termination, Ms. Noyon testified:
My decision to pursue this case was not an easy one.
At . . . the start of the process, a Deputy Assistant Secre
tary of State warned me that I could ruin my career. I
have not been able to find· work with the Department of
State or other Government agencies and will not be able to
do so as long as the case is unresolved. I have been forced
to work outside my field in a field that does not make use
of my previous training. [With a doctorate, she had to
work as a real estate salesperson.] The legal costs have run
into tens of thousands of dollars and my'lost income is
much higher than that. It has been a terrible emotional
burden on myself and my family. (II Tr. 5-6)
Eventually there was a happy outcome: In November 1986 the
ORA found in ¥s. Noyon's favor and the State Department com
. plied with the EEOC order, including reemployment, back pay. at
. tomeys fees. etc.
No outcome was reported by a General Services Administration
(GSA) employee, Alex J. Eucare. who spoke for a group of seven
career workers who considered themselves as "team players" and
filed a class complaint of age discrimination in June 1980. A tech
niCal question of timeliness of filing was settled three times. delay
ing consideration of the issues until late 1987. As the clock ticked
on, most of the group retired or transferred to other agencie1l. Mr.
�8
Eucare concluded: "If you feel ag(p-ieved, it is wiser and safer to
. remain silent. The GSA Office of Civil Rights ... offers only a
siren song luring innocents to the EEOC labyrinth of regulations."
(III Tr. 13)
He described the impact of the long drawn-out complaint to the
subcommittee:
.
. ,....
There has been a· human cost to all of us during this
process. A cost measured in added stress and lost dollars.
Progress in our careers suffered. Lost were all the career
enhancing opportunities. Some of us were harassed from
our jobs, some put on the shelf, others given grade assign
ment under inexperienced supervisors. We became to GSA
not unlike Biblicallepers-n()t acceptable. (ll"Tr. 7)
De'lay is particularly harmful to complainants in age discrimina
tion cases. Time runs out on them, while agencies can hope that
these older workers will retire, move away, or die.
In October 1985 the president of the National Treasury Employ
ees Union, Robert M. Tobias, testified before the subcommittee
about sex,' race, and age discrimination charges made by a "Mrs.
·A." in 1980 when she was 69. She sought counseling in July 1980
and filed a formal complaint on October 31, 1980. The agency in
vestigated the matter in 1981 but did not issue its proposed disposi
tion, finding against her, until July 1984. She then requested an
EEOC hearing, which was held in September 1985.
Mr. Tobias said that "Mrs. A., now 74, continues to work, is not
in the best of health and could conceivably die before the case is
finally ,resolved." (I Tr. 127) In fact, she 'died of heart failure 2 days
after Christmas 1985. On April' 11, 1986, the EEOC issued its rec
ommended finding of no discrimination. "
Official agency reports reveal the persistent nature of these inor
dinate delays. For those agencies that had 20 or more closures of
cases by. agency'decision on the merits (i.e., excluding those closed
through rejection, cancellation, withdrawal or settlement), the
record of the past 5 years was:
Agencies With 20 or More Clcsures
Median number of days to closure on the merits:
Fiscal Year:
1981•..•............. ,..................................................................................................
1982.....................................................................................~..............................
1983....................................................................................................................
1984....................................................................................................................
1985....................................................................................................................
Slowest of these agencies in 1985 were (days):
•
Department of .Education......................................................................................
Department of Justice .............................................................,.............................
Department of Treasury .......................................................................................
Department of the Interior...................................................................................
Environmental Protection Agency......................................................................
Veterans Administration .....................................................................:................
Department of Agriculture ....................................................... _..........................
716
684
S33
569
145
1.;09
1.615
1,229
1,113
1,125
1,110
1.105
Even closure for reasons short of action on the merits took
lengthy periods of time. For agencies with. 20 or more closures in
Fiscal Year 1985, the median time to reject a complaint was 129
days, with EPA taking 1,119 days and the Education Department
951 days. .
.
�9 ,
Although agencies are, theoretically, encouraged to settle com~
plaints as soon as possible after filing, it took a median time of 555
days in Fiscal Year 1985 for these agencies to close cases by settl~
ment, with the Small Business Administration taking 1,570 days,
EPA 837 days, and the State Department 738 days. Significantly,
the EEOC stated: "Settlement occurred an average of 9.3 months
after the complaints were filed in the Federal sector. compared to 4
months aft:er the complaints were filed in the private sector."
[EEOC: Report on Pre-Complaint Counseling and Complaint Proc~
essing by Federal Agencies for Fiscal year 1985, p. 24.]
Reports have reached the committee of seemingly endless delays
at every stage of the complex process. Although the informal coun~
seling stage is supposed to be completed within 21 days, there are
cases where many months were consumed with repeated requests
for counseling or with assignment of a succession of counselors.
The agency investigation, intended to lead, to a proposed disposition
within 180 days. can take years. The regulation authorizes EEOC
to take over a case that is not concluded in 75 days, but it virtually
never does so (29 CFR 1613.220(c». The EEOC Chairman testified
that ". . . EEOC has reserved the rig}:tt to take over a complaint
investigation if an agency does not complete the investigation
within 75 calendar days. EEOC may also require agencies to exp~
dite processing in other ways. Notwithstanding, agencies are not
bound by any time frames and the Commission does not presently
,
reinvestigate the complaints." (OI Tr. 7.)
Complainants who request an EEOC hearing before final agency
action face additional waits for assignment of a hearing examiner,
the holding of the hearing, and finally the examiner's recommend
ed decision (which may even arrive after a court decision makes it
moot). Some agencies have complained that much of their apparent
delays is caused by excessive time in this EEOC segment of the
process,over which they have no control. Unfortunately, EEOC
does not keep record of the time elapsing between requests for
hearings, holding of hearings, and issuance of recommended deci
sions.
'
After all of this expenditure of time and effort, agencies are free
to reject the EEOC recommendation. In 1985 agencies rejected over
45 percent of 235 findings of discrimination, while they accepted 95
percent of 1,307 findings of no discrimination.
Employees who appeal agency decisions tQ EEOC's Office of
Review and Appeals (ORA) encounter additional delays. Severe
problems of staffing and management plagued ORA for' several
years, although ,recent improvements give some basis for encour
agement.·
,
Small wonder, then, that the views of countless Federal workers
and practitioners of EEO law were echoed by EEOC Chairman
Clarence Thomas. At the June 1987 subcommittee hearing Thomas
. was asked: "[I]s the message to Federal workers that if you can
afford to hire an attorney you're better off doing SO and going to
court right away?" He replied: "The amount of time that it takes
for that process to end and then be reviewed by EEOC admitted
ly-I think there is enough blame to go around for everybody-it
takes too long. If there is a way to circumvent that process-and
that includes going to Federal court-until that is corrected, then I
�10
would have to suggest that that would be the best way to go." (IV
Tr.75.)
C. THE BACKLOG GROWS STEADILY HIGHER
The statistics showing the Government-wide trend in complaint
filing, case closing and number remaining in inventory are self-evi
dent:
fISCal year:
1981.._____._____.____..__.._____.
1982.__.____..___.__...__•___..._ _....._..__...._..________
1983_.__.___.____....:...___.._._...__.__..._ .._____
198L.
_.__________
1985_ _ _ _ _...___.___.__.___.____......_
15.802
-14.989
15.259
11,356
19.051
2.068
(859)
1.000
811
1.049
15
(5.C)
6.5
5.3
58
From the beginning of Fiscal Year 1981 to the end of Fiscal Year
1985 the Government-wide inventory of complaints grew by 5,317,
an increase of 38.7 percent. Complaints filed rose from 13,525 in
Fiscal Year 1981 to 19,386 four yea,rs later. While a number of
agencies managed to reduce their backlogs or inventories, 25 agen
cies reported an inventory growth rate of more than 10 percent
.
during FY 1986.
D. WHY THE DELA yl!)?
Clearly, the agencies are not devoting adequate resources to the
EEO program to reduce backlogs and delays. The Lawyers Report
found that participants reported that their agencies gave low prior
ity and attention to the EEO operation. They revealed that delays
in the process were demoralizing to the staff as well a;; to the com
plainants.
In addition to counselors, who are almost always on a part-time
or collateral duty status, many investigators and others involved in
the EEO process are part-time. Thus they find difficulty in carry
ing out EEO assignments which usually have less career signifi
cance than their primary duties.
It was suggested by some EEO staff and by complainants' attor
neys that complainants are held to strict deadlines at each stage of
the process, but the agencies have wider latitude. If they, too, were
held to time limits, such as the ISO-day requirement for reaching a
proposed dispoSition, and penalized for failure to comply with such
limits, the entire process would move more expeditiously.
Above all, the numerous steps in this duplicative and complex
system lead inevitably to a lengthy process. When added steps are
required for a finding of discrimination. the time stretches even
farther. In the words of the EEOC Chairman Thomas. it is a "Rube
Goldberg design ... unfair to both the Federal employee and the
American taxpayer," (IV Tr. 45.)
�11
E. NO BIG STICK AT EEOC
Executive Order 11478 states; "Section 5 ... The.head of each
department or agency shall comply with rules, regulations, orders
and instructions issued by the Equal Employment Opportunity
Commission ..." Unfortunately, this order has not been fully com
plied with. The question of EEOC's power to compel compliance by
Federal agencies with its final orders was disctlssed at length at
subcommittee hearings. EEOC Chairman Thomas stated: "We have
no compliance authority in the statute ..."(1 Tr. 87.)
In August 1985. the. 11th Circuit Court issued a decision in Moore
v. Devine (767 F.2d 1541) stating that EEOC decisions favorable to a
Federal employee were not final adjudications, were not binding on
Federal agencies, and thus would have to be relitigated de novo in
the district court. That would require an employee to prove his or
her entire case again in Federal court when the agency refuses to
take the corrective action ordered by EEOC. This decision was
termed "a major setback" to improving the complaint processing
system by the then ranking minority member of the subcommittee.
Howard Nielson (l Tr. 3). Chairman Thomas commented that "...
this is a classic example of why EEOC has to be totally independ
ent." (I Tr. 57.)
Following this hearing, then. Subcommittee Chairman Frank and
Ranking Minority Member Nielson wrote to the President express
ing their concerns with the implications of the Moore v. Devine de
cision and recommended:
The simplest and most expeditious solution to this prob
lem would be an Executive Order directing all Federal
agencies to comply with final decisions of the EEOC in
Federal employee discrimination complaint cases. There
fore, we recommend and urge your prompt action to issue
such an Executive Order.
. We believe the Federal government should be a model
employer, and such an Executive Order would be a major
step toward providing Federal employees with protection
of their civil rights equivalent to that of private sector
workers.
The White House replied that "... existing enforcement mecha
nismsadequately protect the legitimate rights of Federal employ
ees to secure relief from unlawful discrimination . . . ." However.
the JuStice Department at the urging of EEOC and the Lawyers'
Committee for Civil Rights Under Law petitioned the Circuit Court
to revise or clarify its decision. On January 30, 1986, the Court
modified its earlier decision and held that a final EEOC order that
is favorable to a Federal employee claiming discrimination is bind
ing upon district courts. and that the district court should not inde
pendently determine the merits of an employee's claim in a trial de
novo. (Moore v. Devine 780 F.2d 1559,) The Court noted that tha·t its
prior ruling would "undercut the utility of administrative dispute
resolution provided [for Federal employees]."
.
Unfortunately, this decision did not resolve all issues of agency
compliance. although ORA maintains that it has achieved "almost
100 percent compliance." (IV Tr. 86,) At the June 1987 hearing
.,,
�12
,
Subcommittee Chairman Lantos strongly urged Chairman Thomas
to ask the President to express to Federal agencies his strong sup
port for EEOC decisions as a means of gaining "a great deal of
clout." (IV Tr. 51.) Thomas' response was ,that such support from
the top would be helpful for public relations, but that legislative
change was required, as well as increased resources, to resolve the
issue., (IV Tr. 52.)
F. RESOURCES NEEDED FOR A CENTRALIZED SYSTEM
At his first appearance before the Employment and Housing Sub
committee in 1985 and repeatedly since then, Chairman Thomas
has stated that before recommending that EEOC be given responsi
bility for a centralized system he has two conditions or prerequi
sites: "Orie, that we are guaranteed the resources to do it upfront;
two, that we have control of personnel coming into oqr agency, and
we don't get other agencies' castoffs and problems." Tr. 57,) He is
especially concerned that mandatory transfers of personnel to ac
, company the transfer of function from the agencies would impact
seriously on the EEOC staff, leading to reductions in force and oth
erwise almost paralyzing operations for months. However, the sub
committee heard, testimony from a former top EEOC official,
Horace G.Bussell, who participated in the 1979 transfer of the pro
gram from the Civil Service Commission. Bussell testified, ". . . at
, that time, the Chair preferred, just as this present Chair prefers, to
be able to select his or her own people. So they preferred slots
rather than bodies ... I didn't have the feeling that we are
taking the dregs of the [other] organization." (IV Tr. 80.)
Chairman Thomas has estimated that EEOC would require S30
to $50 million added to its $169,520,000 Fiscal Year 1987 appropria
tion. This would pro,!ide for 1,000 to 1,200 employees in addition to
the current 3,000. (II Tr. 55.)
OMB estimates that over 2,100 persons are employed in the Fed
eral Government as EEO specialists and over 1,100 perform EEO
investigations either full-time or as a collateral duty. (II Tr. 50.)
How many of these positions or individuals would be transferred to
EEOC cannot presently be estimated, nor can the net saving to the
Government. This is especially true because many EEO staff are
not carried as a line item but are included in other functional
areas in their agencies' budgets.
The Lawyers Report is replete with evidence of the need for in
creased training of agency EEO personnel. For example, both coun
selors and complainants agreed that counselors lack adequate
knowledge of discrimination law and regulations and are deficient
in skills needed to advise complainants or achieve settlements.
There are problems, too, with the quality and consistency of inves
tigations. (IV Tr. 110-114.) The Council of Lawyers did not survey
or interview EEOC staff, but complaints about their competence
and efficiency are widespread in relation to· both the private 'and
Federal sector programs. EEOC has recently undertaken extensive
training programs that, hopefully, will improve the quality of
work.
a
�13
G. THE INTERMINABLE REGULATORY PROCESS
Improvements, both major and minor, in the Federal EEO
system have been under discussion at EEOC ever since it assumed
this responsibility in 1978. In 1979-80 EEOC conducted a pilot pro
gram under which a centralized, expedited method of processing
complaints was tested with highly successful .outcomes. A plan to
transfer to EEOC the resources necessary to proceed with full-scale
centralization was, unfortunately, cancelled by the Office of Man
agement and Budget in December 1980.
In March 1983 Chairman Thomas testified at a congressional
hearing that EEOC would shortly develop regulations to revamp
the system. 3 A year later the Employment and Housing Subcom
mittee heard that EEOC regulations for a centr.alized system were
written and moving ahead.'" In September 1984 the Commission
considered but rejected such draft regulations. In June 1985 Mr.
Thomas wrote to the subcommittee that "The proposed regulations
have been submitted to OMB for coordination." In September of
that year he said that the regulations had not yet been coordinated
with individual commissioners but were under "informal consider
ation at OMB." (I Tr. 133-134.) In June 1986 he testified that
"... proposed regulations have been coordinated with the other
commissioners' officies.... No formal discussions have been held
with the OMB ..." (II Tr. 31-32.) At that hearing the Associate
Director of OMB. Wendy L. Gramm, also tested and indicated will
ingness to pursue informal review of the ·draft. (Ii Tr. 58.) At the
June 1987 hearing Mr. Thomas reported on "... a preliminary
staff draft proposal, not yet approved by the Commission...." (IV
Tr. 46.) As of October 1987 the informal submission remains at
OMB with no progress in sight. .
..
In the absence of a major restructuring of the complaint prOCess·
ing system. the Commission has worked on an extensive set of
amendments to the existing Section 1613 of the regulations. First
submitted to OMB in August 1983, these amendments were not ap
proved in toto by the Commission until September 25, 1987. In late
October they remained at OMB. If finally approved, these changes
will make a number of improvements but will not overcome the
underlying problems of the system. Ii
.
.
IV. CoNCLUSION
The current system for processing EEO complaints filed by Fed
eral employees is an embarrassment to the Federal Government. It
is a system that Rube Goldberg would have been proud of. It lacks
all appearance of fairness because agencies investigate and decide
charges against themselves. It is unnecessarily complex and inordi
nately lengthy:--Needed changes in the system are beyond the scope
of regulations and executive action.
.
Therefore. Congress must act to centralize the formal complaint
process in EEOC, to empower EEOC to enforce its rulings, and to
• March ":10. 1983. hearin~ before the Civil Service Subcommittee. House Committee on Post
.
Office and Civil Service, p. 501.
• April2S. 1984. hearing on "Contracting Out EEO Complaints. p.61.
• The revised Section 1613 r~l"tions were published in the federal Register on October 30,
1m. to be rlTectiw! NO¥efDber:lO, 1m.
H
~.
�14
provide EEOC with the resources it requires to process Federal
EEO complaints in an efficient and equitable manner.
o
��Nutshell Summary of S. 404 :
Federal Employee Fairness Act of 1993
The proposed bill amends Title VII, ADEA and the civil Service
Reform Act (CSRA) to change the federal sector complaint process.
Individuals alleging dj.scrimination must file a complaint within
180 days of the discriminatory event. Agencies must conciliate
claims and offer counseling throughout the administrative
process, although an employee's participation in both functions
is voluntary. After attempted conci'liation, an employee may
elect to proceed administratively using EEOC, MSPB or negotiated
grievance procedures. An administrative judge shall issue a
determination on the complaint after a hearing using discovery
within the judge's discretion and order necessary relief within
210 or 2?0 days from the filing of the complaint, the longer
period applying to class complaints. Either party may appeal the
administrative judge's determination to EEOC, and EEOC''''Shall
issue its decision within 150 days. The ADEA is amended to allow
for administrative complaints using Title VII procedures, but
there is no, exhaustion requirement. The CSRA is amended to place
the election requirement in section'?l? of Title VII.
.
�Executive Summary of S. ~o~ :
Federal Employee Fairness Act of 1993
The proposed bill overhauls the federal sector complaint process
by making significant changes to Title VII, ADEA and the Civil
Servic~ Reform Act (CSRA).
The proposed bill requires agencies to make counseling available
to employees throughout the administrative process, but
counseling is not mandatory: It requires agencies to use
. alternative dispute resolution (ADR) pn)cedures to conciliate
claims during a 30 or 60 day period, although participation in
ADR programs is voluntary.
If conciliation proves unsuccessful,
the employee has 90 days to elect to pursue administrative
remedies available through EEOC, MSPB or negotiated grievance
procedures. The. employee may afso elect at this point to file a
civil action in an appropriate u.s. district court.
c_
S. 404 substantially revises the complaint processing methods
currently used by the EEOC and its administrative judges. At the
pre-hearing stage, the respondent Federal entity's role is
limited to providing relevant information, documents and
testimony necessary for the hearing. An administrative judge is
appointed by the EEOC to issue a determination on the complaint
and order necessary relief within 210 or 270 days from the filing
of a complaint, the longer period applying to class complaints. .
While a respondent would no longer be authorized to unilaterally
modify or vacate a dete.rmination by an administrative judge, any
party may appeal an initial determination to EEOC. The EEOC
shall affirm, modify or reverse the findings of the
administrative judge withi~ 150 days of receiving the request.
A compiainant may file a de novo lawsuit in u.s. district court
within 90 days of receiving notice of the right to request an .
administrative determination. Otherwise, an employee may file
suit where the applicable time limit for an administrative
judge's determination or EEOC's decision on appeal has expired
until 90 days after receiving a decision by the administrative
judge or EEOC. A prevailing non-Federal party may collect
.
reasonable attorney's and expert fees, costs and interest • . Any
amount awarded must be paid from the respondent Federal entity's
appropriated funds. A complainant or EEOC may bring suit to
enforce a settlement agreement, an administrative judge's order,
or an order of the Commission.
The bill amends the ADEA to allow employees to file complaints
with EEOC using Title VII procedures.
It continues to allow
employees to bypass the administrative process provided they give
. EEOC at least 30 days notice of their intent to sue and the suit
is brought within 2 years after the alleged violation.
The CSRA is amended to place the election requirement in section
717 of Title VII. The current mixed case scheme and special
panel procedures have been deleted.
�Summary of S. 404 :
Federal Employee Fairness Act of 1993
The Federal Employee Fairness Act of 1993 'proposes to amend
sections 701 and 717 of Title VII of the civil Rights Act of
1964, section 15 of the Age Discrimination in Employment Act of
1967, and sections 7121 and 7702 of the Civil Service Reform Act
of 1978. The proposed effect on each of these statutes is
summarized below.
Proposed Amendments to Title VII
Alternative Dispute Resolution (ADR)
Although S. 404 requires agencies to use alternative dispute
resolution processes to conciliate each claim alleged in a
complaint, a complainant's participation in ADR is vol'untary and
does not affect his rights .. ADR procedures take place during a
30-day period beginning on the date respondent receives the
complaint, and may be extended an additional 30 days with the
complainant's consent to enable the parties to enter into a
settlement agreement or otherwise resolve the complaint. If the
ADR procedures require a conciliator, the conciliator shall be
appointed by the EEOC. '
If the parties fail to settle the complaint during the applicable
ADR period, the respondent Federal entity must notify the
complainant in writing, before the ADR period expires, that the
employee has 90 days from receipt of such notice to make a
written request with the EEOC for (1) a hearing on the claim
before an EEOC administrative judge, (2) a determination by the
MSPB if the claim is within the MSPB's jurisdiction, or (3) a
determination under grievance procedures for claims not
appealable to MSPB. A complainant may not pursue further
administrative or judicial remedies until the applicable ADR
period has expired.
Administrative Complaint Process
The proposed bill requires agencies to make counseling avairable
throughout the administrative process to an employee who believes
a Federal entity has discriminated against him, but such
.
counseling is not mandatory. An agency must also assist an
employee in naming the proper respondent in his complaint, and
inform the employee of all applicable procedures and deadlines.
Under the proposed bill, an employee is obligated to file his
complaint of discrimination with the Federal entity where the,
discrimination allegedly occurred or any other entity of the
Federal Government, including the EEOC, within 180 days of the
discriminatory ,event. .Within 3 days after receiving the
complaint, the respondent must notify the Commission of the'
complaint and the identity of the aggrieved employee. within 10
�-
2
days after receiving the complaint, the respondent must transmit
the complaint to the Commission.
EEOC Administrative Judge Process
If, at the conclusion of the ADR process described above, the
complainant files a request with EEOC for a hearing before an
administrative judge, EEOC must transmit a copy of the request to
the respondent and appoint an administrative judge-to make a
determination on the claim. Should the complainant elect to have
his claim determined by MSPB or through grievance procedures,
EEOC m~st transmit complainant's request to the appropriate
agency. After receiving a copy of complainant's request for an
administrative determination by the'EEOC or the MSPB, the
respondent must transmit a copy _of all documents and in-formation
relevant to the claim to the appropriate agency.
A respondent must collect and preserve all documents and
information relevant to a claim of discrimination, in accordance
with rules issued by the Commission, from the time a complaint is
received until all available administrative and judicial
proceedings. are concluded. A person who is alleged to have
participated in the discrimination or who, as the complainant's
supervisor, is alleged to have been aware of the discrimination
but failed to take reasonable action to stop the discrimination
may not fulfill the recordkeeping requirements or conduct any
investigation relating to the complaint.
Upon determining that the respondent has failed to produce all
relevant information in response to the complaint without good
cause shown, the administrative judge shall require the
respondent to provide any additional necessary information and
documents and to correct any inaccuracies in the information and
documents received.
An administrative judge may dismiss any frivolous claim contained
in the complaint, or a complaint failing to state a claim for
which relief can be granted. If· a claim or complaint is
dismissed by the administrative judge, the employee has 90 days
from the date such notice ~s received either to request that the
EEOC review the dismissal or to commence a civil action in U.S.
district court. For those claims not dismissed, the
administrative judge shall conduct a hearing and make a
determination on the merits of each nonfrivolous claim including
those appealable to the MSPB which arise from the factual
circumstances of the complaint. Following . a determination that
an employee was subject to discrimination, the administrative
judge shall notify the person who engaged in discrimination of
the 'allegations raised in the complaint. The written
determination of the administrative judge must generally be
issued within 210 days from the filing of an individual
complaint, or 270 days after the filing of a class complaint, and
�-
3
may not be reviewed, modified or vacated by the respondent
Federal entity.' Unless a civil action is brought within the 90
day period, any party may bring an appeal, requesting that EEOC
review the determination of the administrative judge, and affirm,
reverse or modify such determination generally within 150 days of
receiving therequest. 2
Discovery is available to the same extent as in a 6ivil action
within the discretion of the administrative judge. Any party
failing to respond completely and timely to a discovery request
made or approved by the administrative judge, when the request
for information' or a witness is within the control of the party
failing to respond, maybe subject to sanctions deemed
appropriate by the administrative judge.' For example, the
administrative judge may draw adverse inferences concerning
information or testimony withheld and consider those matters to
be established in favor of the opposing party, exclude evidence
offered by a party failing to respond, grant relief to the
employee, or take any other action considered appropriate.
Subpoenas shall be issued by the administrative judge to compel
the production of information or the attendance of witnesses from
the alleged discriminating Federal entity. Subpoenas shall be
issued by the Commission to compel ,the production of information
or the attendance of witnesses from other Federal and non-Federal
entities. Jurisdiction.is vested in the U.S. district court
system to enforce non-compliance with subpoenas issued in EEOC
administrative proceedings.
'
Remedies - Administrative Process
The administrative judge is authorized to award any and all
relief contained in section 706 (g) and (k) of Title VII
including equitable relief for intentional discrimination,
reasonable attorney's fees for a prevailing non-Federal party,
and costs.
The time limit for an administrative judge to' issue an
order will not begin to run until 30 days after the
administrative judge is assigned to'the caSe if he or she
certifies in writing that the 30 day period is necessary to
complete the, administrative record. The bill also contains
provisions for an additional 30 day extension of the time limit
and for further extension by the Commission if manifest injustice
would occur without the extension.
2
The bill provides an additional 30 days for the EEOC to
issue its determination where it certifil3s in writing that an
extension is necessary because of unusual circumstances that
prevented the Commission from complying with the initial 150 day
time limit.
�- 4 '.
The administrative judge shall decide whether the claim may be
maintained as a class, proceeding, ,and, if so, establish the
relevant members of the class to 'the proceeding.
An EEOC administrative judge may request that a member of the
Commission stay a personnel action by the respondent against the
employee, such stay to exist for a.maximum of 45 days, or for any
period deemed appropriate by the full Commission.
Referral to Special Counsel
An order by the administrative judge or Commission finding
intentional unla~ful discrimination shall be referred to the
Special Counsel within 30 days of the issuance of the 'order. The
special Counsel shall thereafter conduct an investigation and may
initiate disciplinary proceedings against any person identified
as engaging in intentional unlawful discrimination.
Recordkeeping and Rulemaking
Each respondent Federal entity shall submit a report to the EEOC
by October 1 of each year describing the resolution of complaints
during the preceding year,and the measures taken by respondent
to lower the average number of days necessary to resolve such
complaints. By December 1 of each year, EEOC shall submit to
Congress a report summarizing the inform,ation reported by all
respondents.
Within 1 year after the date of enactment of the Act, EEOC shall
issue rules to assist Federal entities in complying with section
717 (d) of Title VII, as amended by the Act. The rules shall
establish a uniform written official notice to facilitate
compliarice with section 717, and requirements relating to a
respondent Federal entity's collecting 'and preserving documents
and information.
The EEOC,in coordination with Federal intelligebce agencies,
shall issue regulations t~ ensure the protection of classified
and· national security inform~tion used in administrative
procee~ings.
The regulations must ensure that complaints bearing
upon classified information must only be handled by personnel
with appropriate security clearances.
suit Rights
An employee may file a lawsuit in' u.s. district court for de novo
review of a complaint within 90 days of receiving notice from the
respondent Federal entity that the employee may request an
administrative determination by the EEOC, MSPB or under a
negotiated grievance procedures. Moreover, an employee may
commence a civil action in U.S. district court where the
"
�'.
-
5
applicable time period for the administrative judge's
determination or EEOC's decision on appeal has expired until 90
days a,fter receiving the administrative judge's determination or
EEOC's decision. When a lawsuit is timely filed, the
administrative judge's or Commission's jurisdiction over the case
'ceases.
Remedies - civil Actions
The proposed bill allows a prevailing party in a civil action,
except for a Federal entity, to collect reasonable attorney's and
expert fees, costs, and interest. Any amount awarded must be
paid from funds made available to the Federal entity by
appropriation or otherwise.
,A prevailing party or the Commission may bring a civil action in
an appropriate U.s. district court to enforce (1) a settlement
agreement, (2) the order of an administrative judge if not
subject to further administrative or judicial review, or (3) an
order by the Commission if not subject to further judicial
review.
Effective Date
Although the proposed effective ,date of the Act is January I,
1994, the amendments to section 717 of 'ritle VII apply only to
complaints filed on or after the effective date of the Act.
Proposed Amendments to the ADEA
The proposed bill amends section 15 of the Age Discrimination in
Employment Act by allowing federal employees to file a complaint
with EEOC using the same procedures as those under Title VII.
'Under the ADEA, the EEOC and its administrative judges are vested
with broad authority to award legal or equitable relief to an
individual as will effectuate the purposes of the ADEA. An
individual alleg.ing age discrimination may also bypass the
administrative process entirely, and con~ence a civil action in
an appropriate u.s. district court provided that EEOC is given at
least 30 days notice of the intent to file suit and the suit is
brought within 2 years after the alleged violation.
Proposed Amendments to Grievance Procedures
The bill proposes to amend section 7121,of the civil service
Reform Act to delete the current provision requiring election
between a statutory procedure and the negotiated grievance
procedure. The bill places the election requirement currently
found in section 7.121(d) into section 717 of Title VII. Thus,
actions appealable to MSPB or covered under laws administered by
the EEOC may be raised under negotiated grievance procedures
�·.
-
6
provided that the emplqyee makes such an election under section
717 of Title VII.
An employee or applicant who is affected by an action appealable
to MSPB and who alleges that a basis for the action was
discrimination prohibited by a statute or regulation enforced by
EEOC shall file a complaint with EEOC and elect to pursue the
negotiated grievance, MSPB or EEOC procedures. The bill proposes
to eliminate the current mixed case scheme in which complainants
may request EEOC review of MSPB decisions and vice versa. It
also eliminates the special panel procedures currently found in
section 7702. If an employee elects to follow EEOC procedures
and his complaint is dismissed by the EEOC, the employee shall
have 90 days to pursue the action through negotiated grievance or
MSPB procedures
.
.
....
An employee may commence within 120 days of a final decision on
his or her grievance a civil action in an appropriate u.s.
district court. If a final decision has not been made on an
employee's grievance after 120 days following the election, an
emp'loyee may file a civil action in an appropriate U. S. district
court within an additional 120 days.
�I'
\
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r \
I
Calendar No. 250
1030 CoNGRESS
lilt Susion. ,
}
{
SENATE
,
&!:Pr.
103-167
'FEDERAL EMPLOYEE FAIRNESS ACT OF 1993
.....
REPORT
.,
OF THE
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
. together with
ADDITiONAL VIEWS
TO ACCOMPANY
S.404
TO AMEND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AND
THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967 TO
, IMPROVE THE EFFECTIVENESS OF ADMINISTRATIVE REVIEW OF
EMPLOYMENT DISCRIMINATION CLA.IMS MADE BY FEDERAL EM·
PLOYEES, AND FOR OTHER PURPOS;gs
I
1
OcroBD 27 Oecitlative
da7, 0cT0BBB 13), 1993.-Ordend
UJI. OOVBRNMENT PBDITlNG
WASHlNaroN : UIII8
S.Reot. 103-167 0 - 93 - 1
omes
to be printed
�I
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.
~
\
_.........---._'--------------' --
t:'l
-~.......
.- .__.- -~--------.---
.
i
f
t
t
,
t
103D CONouss }
I.t Susion
Calendar No. 250
. ,
SENATE
{
REPoRT
103-167
t
!
0)
......
r:c.
0
E-4
~
CIl
CIl
I
s
~
t
,
FEDERAL EMPLOYEE FAIRNESS ACJr OF 1993
l
I
OcroBElt 27 Oeg:ialadve·da", OcroBa 13), i993.-Ordered to be printed
i
Mr. GLENN, from the Committee on Governmental Affairs,
submitted the following
\
I
,
~
\
~
~
REPORT
together with
t
ADDITIONAL VIEWS
.
~.
~
t:l
~
l'l'o accompa.ay S. 400&)
,
tI
~
I
fI
CONTENTS
, p.p
---.q
•
The Committee on Governmental Affairs, to which was referred
the bill (8. 404) to amend title VII of the Civil. Rights Act of 1964
and the Age Discrimination in Employment Act of 1967 to improve
the effectiveness of administrative review of employment discrimi
nation claims made by Federal employees, and for other purposes,
having col1Sidered the same, reports favorably thereon and rec
ommends that the bill do pass.
I. Summary of PurrIoIIe ......
Baclqrround and"Need for LegiaJatiOll ................._......_•••_..........................
Hiatorr of S. 404 •____...___.._ ..__._.._.....__.........................._..............
IV. Comu:uttee Vote ..... _.... _.....___........... _......_............_ ......... _.. __•..;..........
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OM . . . . . . . . . . . . ._ . . : . . ; . .. . . _ _.:.. . . . . . _ _ _. _. . . . . ._ _ . . . . . _ .
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V. Section.b,,-Section ADalyais ..._......................._ ....._..................._..............
VI. Mattera to be Diec:wIeed UDder SeDate Rules ...........__............................
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IX. Additional Views of SeDater SteveDI ................... _._...................................
X. ChaDgea ill Esiatinl Law ............._.......__........_ ...................._ ..........._.....
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vn. CBO Colt Estimate ........................................................................................
vm. Additional VieW of 8eDatorB Roth, Cohen. aDd Cochran _..............~.........
I. ·8U'MMARY AND PuRPosE
The purpose of 8. 404 is to amend Title VII of the Civil Rights
,
Act of 1964 and the ,Age Discrimination in Employment Act of 1967
(1) .
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to improve the effectiveness of administrative review of employ
m~nt discrimination claims made by Federal employees by remov
ing the adjudication of equal employment opportunity (EEO) claims
from the agency against which the claim is made and placing the
adjudication of such claims at the Equal Employment Opportunity
Commission (EEOC). This proposal is to be achieved by providing
an equitable time frame for the processing of such claims; provid
ing various procedures designed to increase due process to the com
plainant in the adjudication of EEO claims; simplifying the proce
aures for the ming of adverse action claims based on discrimina
tion; and requiring the referral of recommendations to the Office of
Special Counsel (OSC) for prosecution under section 1215 of, title
5 United States Code for aisciplinary actions against employees
found to have discriminated.
n. BACKGROUND AND NEED FOR LEGiSLATION'
Prior to introduction of ~e bill, Chairman John Glenn of the
Committee on Governmental Affairs requested an investigation by
the U.S. General Accounting Office (GAO) which conducted a two
year investigation into the processing of EEO complaints by the
EEOC. and the Federal ~encies. A series of public hearings were
held in response to the GAO findings. On May 16, 1991 the Honor
able Evan Kemp, Chairman of the EEOC, testified. on behalf of the
EEOC regarding regulations implementing the new EEOC proce
dures, affirmative action plans med by federal agencies with the
EEOC, and the promotion, retention and recruitment of women
and minorities in federal agencies.
. The General Accounting Office also released the results of their
report. The panel of GAO personnel testifying before the Commit
tee on Governmental Affairs included Mr. Bernard Ungar Director,
Federal Human Resources Management Issues, Mr. Clifford Doug
las and Joseph Sellers, Esq. Executive Director of the Washington
Lawyers Committee for Civil Rights Under Law testified regaraing
the barriers faced by women and minorities in attempting to break
the "glass ceiling." Jane Christiansen, President of the National
Federally Employed Women organization also testified on the bar
riers to promotions for women in the Federal sector, particularly,
beyond the GS-15 level.
On October 23, 1991, testimony was presented by a panel of
former and current federal employees who had med EEO com
plaints and who were knowledgeable concerning systemic problems
within the process. Penny Patterson an inspector with the Depart
ment of the Treasury's Bureau of Alcohol, Tobacco, and Firearms
and Ms. Loretta Thomas, an auditor with the Department of Treas
ury, are both current employees of the Federal Government and of
fered testimony on problems they have experienced with the EEO
complaint system. Former FBI agent, Mr. Donald Rochon, and
former Department of the Navy EEOcounselor, Ms. Virginia
Delgado, testified concerning the wrongful discrimination they suf
fered because of race and ~ender bias, respectively. Professor David
Kairys of the TempleUruversity School of Law also testified re
garding the leKal processes involved in the EEO complaint Rystem.
Mr. Bernard Ungar of the GAO also gave the Committee an up
dated report on the-results of their continuing investigation.
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On May 26, 1993, testimony was presented by Senator Barbara
. Mikulski . (D-Maryland). a cosponsor of S. 404. The GAO, rep
resented by Nancy R. Kingsbury, accompanied by Barney Gomez,
Cecelia Porter and Douglas Sloane also testified. Additionally, a'
panel of current federal employees testified regarding their experi- .
ences with the EEO complamt process system. This panel included
the following·witnesses: Dilima Miller of the Department of Army;
Suzane Doucette of the FBI; Marilyn Hudson of the Department of
Justice~ U.S. Attorney Office tor Eastern Tennessee; Curtis Cooper
and Internal AfTnirs. supervioor at' the Bureau, of Alcohol, Tobacco
and Firearms, Department {)f Treasury; and Sandra Hernandez,
Special Agent, Bureau of Alcohol, Tobacco and Fin!arrns of the De
partment of Treasury. These witnesses eloquently related their per
sonal stories of delay and denial of justice and retaliation by their
agency as a result of entering the EEO com~laint process. The con
sensus of this panel was that the federal EEO complaint process
is fraught with unfairness, since an accused agency is allowed to
'investigate itself.
.
S. 404 as amended by the Committee, would improve the effec
tiveness of administrative review of employment discrimination
claims. The bill requires' agencies to make coUnseling on the EEO
process available to complainants throughout the process and to es- .
tablish a voluntary alternative dispute resolution process but speci
. fies that failure to accept such arbitration or counseling is not a
. bar to the riling of a complaint.
.
The bill requires the complainant to file with the agency or
EEOC within 180 days after the discriminatory event. It grants the
agency 30 days commission to attempt to conciliate the claim be
fore it allows the complainant to request review or file a civil ac
tion.
. S. 404, as reported by the Committee:
Grants the Commission the power to stay personnel actions
if necessary to carry out the purposes of the act. In addition,
the Commission is granted subpoena power to compel the pro
duction of documents information or witnesses by federal or
non-federal entities or employees.
Requires the agency to provide all relevant information to
the Commission and to grant the complainant a reasonable
amount of official time to prepare for an administrative or civil
court proceeding related to the claim.. The administrative judge
(AJ) of the Commission is required to determine if the 'record
is complete and accurate, and may within his or her discretion
impose sanctions upon the agency for failure to provide infor
mation within its control. The AJ shall require the agency to
obtain or Correct any necessary information.
. Permits parties to conduct discovery to the extent deemed
appropriate by the AJ and permits the AJ to impose sanctions
on parties who fail to comply to requests for information.
.
Provides for dismissal offrivolous claims and an opportunity
for a hearing on . ,nonfrivolouB claims reasonably expected to
arise from the facts on 'Which the complaint is based. It re
quires. the AJ to issue a decision within 210 days and provides
for reasonable extensions of time in specified circumstances. It
makes the order of the AJ final and enforceable with respect
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to any part of relief granted which i~ not appealed. H.R. 3613
permits the complainant to appeal the.AJ decision to the Com
mission or to ciw court within 90 days of notice from the AJ.
Requires the Commission to affirm. reverse or modify the ap
plicable provision of the order of the AJ within 150 days after
receipt of reque~t for review if supported by substantial evi
dence. It requires that the findings of fact of the AJ are conclu
sive unless the commission determines that they are clearly er
roneous.
.
Allows the complainant to file a civil suit seeking de novo re
view within 90 days of the Commission's decision and notice.
It also allows the complainant to file seeking de novo review
where the conimission has failed to act within 300 days of the
initial filing or within ·180 days after the timely request for ap
pellate review by the commission.
Authorizes the AJ and the Commissioo"to award reasonable
attorney fees and other litigation expenses as a court has au
thority to award under section 706(k) of title VII of th~ Civil
Rights Act of 1964. It allows the Commission or the complain
ant who prevails on a claim to bring a civil action in district
court to enforce settle-ments or orders of the AJ or the Commis
sion that are not on appeal. It requires any award under this
section to be paid by the Federal entity that violated the act.
Requires the AJ, the Commission, or the court to make a
finding identifying theperson(s) who intentionally committed
the wrongful discrimination. Where liability is found for inten
tional discrimination, it requires the deciding authority to
transmit to the. Office of Special Counsel (OSC), a copy of the
decision and the record for investigation pursuant to 5 U.S.C.
section 1214.
A.. AN EFFECTIVE EEO, PROCESS IS CRlTICAL TO THE FUTURE OF THE
FEDERAL GOVERNMENT
An effective EEO process will be increasingly critical to the oper
ation of the Federal Government. Workforce projections for the fu
ture of America show women and minorities will become an ex
panding force in the workplace. Indeed, Civil Service 2000, a 1988
study by the Hudson Institute found that non-whites. women, 'and
immigrants will make up more than 80% of applicants for Federal
employment by the year 2000. In 1991, the Department of Labor
issued Workforce 2000 which found that in the year 2000 the
workforce will be more diverse; it will include more yvomen, more
minorities and will require more technological skills.
In October, 1992, the U.S. Merit Systems Protecti('n Board is
sued its report~ "A Question of Equity: Women and the Glaaa Ceil- .
ing in Federal Government." Findings of the report includp. the fol
lowing:
Women do confront inequitable barriers to advancement in
their Federal careers. These barriers take the form of subtle
assumptions, attitude, and stereotypes which affect h(JW man
agers sometimes view women's potential for advancetr.ent and,
in some case~! their effedfveness on the job.
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Contrary to conventional wisdom, .women are not pro
moted at a lower rate than men at ihe GS/GM level and
above, but rather fa.ce· obstacles to advancement at lower
levels in the pipeline. Women in Professional occupations
are promoted at a lower rate than men at two critical
grades, GS 9 and GS 11. As these grades are the gateway
through which one must pass in moving from the entry
level to the senior level, this disparity has the effect of re
ducing the number of women eligible for promotion in
higher graded jobs. Results from a governmentwide survey
of employees currently in grades GS 9-15 and the SES ..
confirm that women at these levels have been promoted,
on average, less often than men who have comparable
amounts of formal education and experience, and who en
tered Qovernment at the same grade levels as the women.
Given current trends, the percentage of Professional and .
Adminjstrative jobs held by women will grow from 34 per
cent in 1990 to 42 ~ercent by 2017. But..even by 2017
women will remain significantly underrepresented in sen
ior. Ie'vels, holding less than one-third of senior executive
positions. Unless action is taken. a dramatic increase in
the representation of women in higher graded jobs will be
precluded both by the slow process of advancement into
higher graded jobs in general, and by the·lower rate of pro
motion encountered by women. .
Women receive performance appraisals that are as good
as or· better than men's, and women surveyed expressed
just as much commitment to their jobs and career ad
vancement as men. However, there is evidence to suggest
that women are oftenpercelved to be less committed to
their jobs than men. Particularly susceptible to this
misperception are women in the first 5 years of their ca
reers and, throughout their careers, women with ehildren,
who are promoted at an even lower rate than women with·
out ehildren.
A, significant m.i.Dority of women in. grades GS 9 .and
above believe they often encounter stereotypes that cast
doubts on their com:petence, and that attribute their ad
vancement to factors other than their qualifications.
Minority women appear to face a double disadvantage.
Their representation at top levels is even less than that of
nonminority women, and minority women currently in
grades GS 9 and above have been, on average, promoted
less often than nonminority women with the same quali
fications.
The General Accounting Office examined the existence, of a glass
ceiling in the federal workforce. The Governmental Affairs Commit.. .
tee's review of workforce demographics for 1990 from the Office of
Personnel Management Annual Report found:
While men constitute 50% of the current federal workforce,
they make up 81% of the General Schedule (GS) 13-15 levels, and
88% of the Senior Executive Service (SES), the highest positioIU'l in
Federal Government. .
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Women constitute 75% of the GS 1-6 levels (mostly clerical
and entry level positions). and only 11.1% of SES positions.
Minorities and women constitute 84% of the GS 1-6 levels.
Africian Americans are 25% of the GS 1-6 levels. but only
6.5% of the GS 13-15 levels, and 4.7% ofSES positions.
The average grade level for men is approximately three full
grades above the average grade level for women; 10.3 for men
7.3 for women.
Since May 1991, the General Accounting Office (GAO) has issued
a series of five reports on the government's equal employment op
portunity efforts. The GAO's work in this, area is important and in
structive to understanding how to effectively manage the changing
workforce. In its November 1991 report, GAO pointed out that even
though the Federal Government has made progress towards a fed
eral workforce that is reflective of the Nation's diverse population,
some distance remains to be covered. In addition. the affirmative
.action planning process has lacked priority, agencies vary in their
success in achieving representation and thtt discrimination com
plaint process is often reported in need of repair. GAO maintains
that these areas where further improvement is necessary point to
the need for continued. application of a strong federal affirmative
action employment program.
Meanwhile currently in the Federal Government, women and mi
norities are hitting a "glass ceiling" in their efforts to obtain high
level positions. The glass ceiling is defined as those artificial bar
riers based on attitudinal or organizational bias that prevent quali
fied individuals from advancing upward in their organization. A
1991 Labor Department study indicates the clear presence of a·
glass ceiling in the private sector. Although there is no single an
swer to the glass ceiling dilemma, a fair and effective mechanism
to redress wrongful discrimination in the workplace is essential to
.
eliminate the glass ceiling..
As GregOry Lewis wrote in the May/June 1988 issue of Public
Administration Forum, in an article submitted. to the Govern
mental Affairs Committee:
Women and minorities made progress toward greater rep
resentation • • • the pace was not rapid. It will take another
30 years at this rate before women and minorities fill half the
positions at GS-13 and above, and unexplained salary dif
ferences will still remain.
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In conclusion, while statistical analysis indicates that some
progress has been made, the glass ceiling remains readily appar
ent. Testimony before the numerous Committees of Congress who
have held oversight bearings on this issue, including the House
Committee on Governm.ent Operations, House Committee on Post
Office and Civil Service, and the Senate Committee on the Judici
ary. as well as the Senate Committee on Governmental Affairs, in
dicates that there are very real discriminatory practices and behav
ior that contribute to such ceilings. Such practices may include:
subjectivity in selection.process, denial of equal opportunities to ac
quire the requisite experience and skill, and exclusion of minorities
and women from p~fessional developmental tracks .
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Attorney Joseph Sellers in testimony before Senate Committee
on Governmental Affairs on May 16, 1991 stated: .
. As the workforce changes, strong amrmative aCtion pro- .
gresses, and a fair and effective mechanism to redress dis
criminatory practices will continue to be essential to the
elimination of injustices in the workforce. Given that, in
the Federal Government, the process established to rem
edy discrimination is controlled by the agencies that are
alleged to have discriminated, the fact that the glass ceil
ing and discriminatory behavior remains after 20 years is
not surprising.
B. THE CURRENT EEO PROCESS
.
1. History of the Federal sector EEO process: Legislation man
dating equal opportunity in Federal employment was first enacted
under section 717 of title VII of the CiVil Rights Act of 1964 (P.L.
88-352; 78 Stat. 253). A prohibition against discrimination by the
Federal Government had been recognized judici:lllly under the due
process clause of the Fifth Amendment in 1954 under Bolling v.
. Sharpe, 347 U.S., 497, and President Eisenhower had issued an
Executive order banning discrimination in employment by the Fed
eral Government in Executive Order 10590 issued January 19,
1955.
Passage of the 1964 Civil Rights Act followed a decade of public
protest over racial discrimination in such areas as voting rights,
public accommodations and facilities, education, and housing, as
well as employment. Title VII mandated equal employment oppor
tunity for workers in both the public and private sectors. In 1972,
statistical studies presented to Congress showed that minorities
and women continued to be denied access to large numbers of Gov
ernment jobs, particularly in higher grade levels. In addition, testi
mony critical of the complaint procedure claimed that it was
weighted in favor of the agency and that the appeals process lacked
adequate remedies. .
.
.
The Equal Employment Opportunity Act of 1972 (P.L. 92-261; 86
Stat. 103), amending the Civil Rights Act, addressed these prob
lems by. emphasizing the ban on discrimination in· Federal employ
ment on the basis of race, color, religion, sex, or national origin and
by requiring Federal departments and agencies to develop and
carry out aftlrmative action plans to redress racial discrimination.
. The Civil Service Commission was authorized to enforce this policy
·within the Federal service, and individual Federal employees were
granted the right to bring civil action· in Federal court after ex
hausting their agency's administrative remedies. In 1978, all func
tions related to equal employment opportunity in Fede~al Govern
ment employment were transferred from the Civil Service Commis
sion to the Equal Employment Opportunity Commission under Re
. organization Plan No.1.
~ his message to Congress transmitting the plan, President
Jimmy Carter cited the need for a "unified, coherent Federal struc
ture to combat job discrimination in all its forms." Also cited by the
President was "the cOnfusion and ineffective enforcement for em
ployees, regulatory duplication, and needless expense for employ-
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ees" brought on by fragmentation of authority among 18 govern
mental units and the need for uniform standards and standardized
data collection procedures. (Public Papers of the Presidents of the
United States. Jimmy Carter. Message to Congress Transmitting
Reorganization Plan No.1 of 1987. February 23, 1978. W8.l;hington,
U.S. Govt. Print Off., p. 400.)
2. The current EEO process provides for the following steps:
An applicant or an employee who believes helshe bas heen
discriminated against takes the problem to an agency EEO
counselor, who attempts to resolve it.
Should the counselors efforts fail, the person may me a for
mal compliant, which the agency investigates. Upon complet
ing its investigation, the agency makes the case records avail
able to the complainant and attempts to settle the matter.
Should the attempt at settlement fail, the agency presents
the complainant with a proposed disposition of the case. The
complainant requests a final agency decision or, if not satisfied
with the proposal, can ask for a hearing before an EEOC ad
ministrativejudge (AJ).
If a hearing is requested, the case is sent to the EEOC. An
AJ then holds a hearing on the matter and issues a rec
ommended decision to the agency.
The agency then issues a decision that mayor may not agree
with the recommendations made by the EEOC's AJ.
If the complainant is not satisfied with. the agency decision, hel
she may appeal that decision to the EEOC's Office of Review and
Appeals (ORA): which issues the fmal decision. However. EEOC is
not empowered to require agencies to comply with its fmal deci
sions.
If the complainant or the agency is no satisfied with ORA's deci
sion, either party can request reconsideration by the EEOC's com
missioners.
.
A complainant may me a (:ivil action in Federal district court 180 .
days after filing the complaint with the agency or within 30 days
ofreceiving the final agency decision.
C. SPECIFIC CRITICISMS OF THE PROCESS AND THE LEGISLATIVE
SOLUTIONS
1. Conflict ofInterest
The EEOC has long been dissatisfied with the regulatory proce-
dures mntained within 29 CFR 1613. The agency. after negotiated
ruletriaking with several federal agencies,promulgated a new rule
on October 1. 1992 to deal with procedural delays. published as 29
CFR 1614.
.
Although a slight improvement from the existing rules, the new
rules do not adequately address solutions to an equal employment
opportunity complaint process that is fraught with conflict of inter
est and insufferable delay. However. reaching that'small level of
success was difficult and time-consuming. S. 404 is needed to elimi
nate unnecessary delays in the complaint process system.
Washington Council of Lawyers Study: A study of EEO officials
on the effect of the agency adjudicating the claim against itself was
conducted by the Washington Council of Lawyers. a non-partisan,
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voluntary bar association. This study, done in 1987, was submitted.
to the Committee on Governmental Affairs as a supplement to tes
timony offered by Attorney Joseph Sellers when he testified before
the Committee on October 26,1991.
According to Mr. Sellers, the survey of 350 EEO counselors in
four federal agencies found an overwhelming majority of the EEO
counselors believed that the conflict inherent in the federal EEO
complaint process impaired its function. They indicated that they
often had little clout to deal with the issue when the alleged dis-·
criminator held a higher position in the agency. Additionally, the
EEO counselors reported that in situations where they concluded
that discrimination had occurred, scrutiny of their decision and
their job performance greatly increased. Such actions created an in
centive for some EEO counselors to fmd that ·the agency had en
gaged in no discrimination.
.
EEO officers reported that witnessell against the agency often
feel intimidated by supervisors. In some situations, the alleged dis
criminating official, who often views settlement as a concession of
wrongdoing and opposes it. for that reason, must approve the offer.
At one agency, the general counsel has exclusive authority to ac
.cept or reject a complaint. That same general counsel also defends
against the complainant at the hearing. illustrating ·the dual role of
the agency to defend against and to adj~dicate discrimination com
plaints.
In addition, the study noted that most often the EEO functions
are a collateral duty for the counselor or investigator, maki.ng it
. difficult to find the time to address each case adequately. The sur
vey found a general lack of agency commitment to the EEO proc
ess. EEO activities had difficulty competing with programmatic pri
. .
orities of the agency for staff and resources.
Finally,l the study concluded that: "Even if one could eliminate
the actual conflict, one can never eliminate the perception without
an independent third party decision maker."
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2. Inequitable delays
In the current process, short time limitations are imposed on the
.Federal employees. Section 1614 of theCFR. effective October I,
1992, has given the agency time limits. However, the Committee
feels that the time limits of S.404 are more reasonable. Critical is
the fact that the agency is still permitted to investigate itself. Addi
tionally, an agency can control time by extending the time limits.
At every Congressional hearing on the current EEO procesa, the
message from civil servants is clear--delays discourage employees
from using the process. There are delays at the agency stage as
well as at the Commission. Most agencies fail to meet regulatory
time frames. Government-wide., the average time for decision on
the merits by all agencies '\J1as 526 days. The worst agency was the
National Security Agency which took an average of 1,467 days in
FY 90 to close its eases. At the Department of State it took an av
erage of 1,134 days to close its cases·in FY 90.
.
Delays occur because there are no incentives for or pressures. on
agencies to meet regulatory deadlines or to expedite any stage of
the complaint processing. Current procedures, internal to the agen~
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cy. are as easily used to delay resolution as they are to mediate dis
putes.
The Commission is authorized to take over cases not completed
. within 75 days [29 CFR 1613.220(c)]. but never does. The Commis
sion may also require agencies to expedite processing in other ways .
but virtually never does. However, promises to do so abound in tes
timony on the federal sector regulations which went into effect in
October of 1992. Given no action on the part of the Commission to
expedite the process even after intense Congressional criticism over
the last 20 ·years, the Committee is skeptical that the newest prom
ises will yield more timely results.
The time delays can have a serious adverse effect on the civil
servant. In essence, the complainant has been exhausted before the
administration process has been exhausted..
Testimony from civil servants and their 8avocates revealed that
short time frames lead to an increased filing of unsupported claims
as complainants must file quickly just to preserve the claim. An
employee must make a decision based. on information available
within the 30 day timeframe and may not have had time to fully
consider all aspects of the claim. In addition, the discriminatory
impact of an event may not be realized until after the current 30
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The result is that meritorious complaints are washed out un
fairly and prematurely. Clearly, this process is. not fair to employ
ees. The effect of an employment practice may be far-removed from
the initiation of the unlawful activity. Under the current 30-day
time limitation, complaints regarding recent actions by the agency
may be barred beCause the policy adopting the action was imple
.
mented before the unlawful effects of the policy were felt.
The consequences of the decision to file an EEO claim may be
grave. The EEO process· dep'letes complainants of· fmandal and
emotional resources. In addItion. retalIation for the filing of an
EEO complaint can and frequently does occur making the decision
to file a serious one. In FY 1990 over V3 of EEO complaints were
based on retaliation for use of the EEO process.
The 180 day period in S. 404 will provide sufficient time to allow
employees time to me a complaint. It will give the complainant
enough time to consult with an advisor or attorney to determine
whether they have claims under Title VII and to determine the
steps required to prosecute such cases resulting in the filing of
fewer frivolous complaints.
.
Short time frames penalize the complainant for l!!eeking an ad
ministrative remedy.
3. Investigations
The Committee found that the agency's ability to control the in
formation upon which a decision is based allows the agency to con
trol the outcome of the decision. Complainants essentially can only
take information for their case from an investigation develo;>ed b!,
the agency.
.
The Governmental Affairs Committee confirmed in its investiga
tion that where agencies are concerned, there was usually a lack
of consistency and quality in investigations. Two-thirds of inves
tigators surveyed said they would not routinely obtain the SF 171,
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a personnel form, frequently critical to the defense that a person
was not qualified for the job. Almost half of the investigators did '
not usually ask the complainant and the alleged discriminator to
respond to each other's statements. This allows, little opportunity
to resolve inconsistencies. A significant number of EEO officials
who relied on. the investigations found them insufficiently probing.
Additionally, investigators feel that, as a result of their lack of au
thority,they fmd it difficult to arrange meetings v.ith witnesses
and employees accused of discrimination.
4. Mixed cases
..
S. 404 amends title 5 U.S.C. section 7702, to revamp what is
known as the "mixed case" procedure. "Mixed case" procedures are
those in which an employee alleges that the prohibited, personnel
action to be appealed was based on illegal discrimination. The
Committee found that the last 14 years have shown serious delays
resulting from this complex procedure creating,jnequitable results
for the employee. In addition, the development of discrimination
case law may be adversely affected by tlie requirement that the
MSPB make the initial determination in the "mixed cases",
Currently, an employee alleging a prohibited personnel practice
under sectlon 7702 of Title 5 must first appeal to the MSPB, After
the MSPB final decision, the employee can then petition the EEOC
for review on the issue of discrimination. If the MSPB and the
EEOC disagree, a special panel is convened to make the fmal deci
sion. Only 3 cases have gone to the special panel in 14 years. An
employee may also use the negotiated grievance procedure in a
mixed case.
In S. 404, the employee does not bounce between the two forums
but section 4(1)) requires the employee to choose either the MSPB,
the EEOC, or the negotiated grievance procedure. Once a forum is
chosen the employee must stay within that forum with one excep
tion: .If the EEOC dismisses the claim of discrimination, the em
ployee has 20 days to file with the MSPB on the adverse action as
pect of the complairit but may not raise the discrimination issue
previously decided by EEOC. In addition, uniformity is maintained
through, a provision requiring the MSPB to follow EEOC sub
stantive case law on the issue of discrimination. If EEOC is the
chosen forum, EEOC must follow MSPB case law on the adverse
action 'issue.
D. THE IMPOSmON OF SANCTIONS FOR DlSClUlrUNATORS
Under the current EEO process, employees who illegally dis
criminate are not punished for their behavior. In some cases, these
employees are protected by the agency and the system. Discrimi
nating employees are backed by a system that protects and insu
lates them from the consequence of discriminatory acts.
The Committee on Govc~rnmenta1 Affairs heanngs revealed that
at times, even when egregious discriminatory behavior is found by
the Commission, victims of discrimination do not feel that those
employees and superviSors guilty of illeg~ discrimination receive
sufficient punishment for their behavior. There is no clear message
from the agency that discrimination will not be tolerated. On the
contrary, some victims allege that_agendes protect, even promote
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managers who discriminate against and punish the victims. In tes
timony offered by Ma. Virginia Delgado there was a clear· dem
onstration that although the Federal District Court rules that her
supervisor Created a "hostile" work environment, he was never dis
ciplined. In fact, he was promoted: Former FBI special agent Don
Rochon, in testimony before the Governmental Affairs Committee
on October 23, 1991 stated "although there was no doubt that other
agents clearly violated the law in harassing me, it wa,s equally
clear that the agency (Department of Justice) expressed no desire
. to take action against them even after the court ruled in my favor."
In testimony presented to the Committee on May 26, 1993, Ms.
Diana Miller, a civil E!ngineer from Pittsburgh, Pennsylvania who
is employed by the U.S. Army Corps, told of an incident of sexual
harassment by her supervisor. Ms. Miller's oupervisoradmitted
that her description of his. unwelcome and...offending sexual ad
vances was accurate. However, the legal staff at the agency moved
very quickly to defend the actions of the supervisor and the legal
officer stated to Governmental Affairs Committee staff that the su
pervisor should not be transferred because he was harder to re
place than Ms. Miller would be. In fact, the legal staff seemed more
mtent on punishing Ms. Miller for reporting the incident than on
punishing the supervisor for committing the act.
.'
Such testimony prompted the Committee on Governmental Af
fairs to invec,tiate more thoroufJhly the issue of sanctions against
.
those.found . ty of illegal discnminatory practices.
In 1988, eCommission signed a memorandum of understand
ing(MOU) with the Office of Special 'Counsel (OSC) in order to fa
cilitate the referral of cases in which the Commission recommended
that the agency consider discipline of the discriminating employee
for prosecution under title 5, U.S.C., section 1215. Under title 5,
'U.S.C. section 1214, the OSC may bring action against an em
ployee before the Merit Systems Protection Board (MSPB). Since •
1988, the Commission ~ referred one case to OSC. OSC declined
to prosecute.
.
The Committee requested from the Commission a copy of all
cases since the 1988 MOU in which the Commission found dis
crimination. The Commission' provided the Governmental Affairs
Committee with eleven cases. Of those eleven, the Commission ac
tually recommended that the agency consider discipline in seven
cases.
Between 1988 and 1990, AJs found discrimination in 985 cases
and the Commission found discrimination in 697 cases. Most cases
recommended training of the discriminating employee. In seven
cases, the AJ or the Commission recommended that the agency
consider discipline of the person accused of discrimination. Of thos,e
seven cases,two discriminators actually received a sanction beyond
sensitivity training. Based on the number of times the Commission
found intentional discrimination i:Ji the last three years alone, an
individual who illegally discriminates can' anticipate a sanction for
his or her illegal behavior 1% of the time.
.. .
The Committee finds that under the current scenario, employees
who discriminate do not experience any serious consequence for
their discriminatory behavior and the system has virtually no de
•
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13
terrent effect. ,The sanctions provisions in this bill are necessaly to
provide a deterrent effect.
.
.
In March of 1992 the General Accounting Office (GAO) prepared
a fact sheet for the Committee on agencies' costs for discrimination
complaint counseling and complaint processing. The fact sheet
showed the actual and the estimated dollar costs for providing com
plaint processing FY 1991. The costs were reported by 13 civilian
cabinet departments and 3 Department of Defense agencies.
A matter of cost
Together, these agencies reported a total cost of about $139 mil
lion for complaint counseling and processing, most of wbich was for
counseling individuals (about $40 million) and performing original
investigations of formal complaints of discrimination ($39 million).
Moat of the reported costs were estimates. The agencies also broke
the costs down into steps in the process. Among GAO's conchlsion:
Agenc!es spent 138 ~on to investig!lt.e . c~mplaints .
AgenCIes spent 40 million on counseling"
Agencies spent ll.million for proposed disP!'sitions
Agencies spent 4.2 million on final agency decisions.
The EEOC has estimated that it will need $25 million to cover
the cost of the new responsibilities it will undertake. The agencies
.will be losing some of their current EEO processing responsibilities
and the Committee anticipates savings from this. For example,
three activities the agencies will no longer perform include: 1) re
viewing to accept/reject formal complains, 2) preparing proposed
and/or final decisions and 3) iSsuing fin81 agencr. decisions.
In the GAO report, approximately $24.9 million of the cost of
agency EEO activities may not be erased, but will be diminished.
The $38 million currently ~pent by the agencies to investigate com
plains is particularly significant because while some investigative
authority may remain at the agency, most will be done at the
EEOC: Even if a marginal reduction in the GAO estimate of $139
million is experienced, it will be more than enough to make the bill
budget neutral if not provide for tax savings..
The Committee urges that adequate time be allowed for transfer
ring adequate resources to the EEOC to implement this Act. The
Office of Management and Budget and the Congress should be
given enough time to transfer individual agency EEO operation
funds and FTE slots from other agenciea to the EEOC, during the
appropriations process.
.
III. HIsToRY OF S. 404
On February 18. 1993," Senator John Glenn, along with cospon
soring Senators Ted Stevens, (R-Alaska), Barbara Mikulski, (D
Maryland), Paul Simon (D·Illinois), DenniS DeConcini (D-Arizona),
Harris Wofford (D-PennsylVania), Daniel Akaka (D-Hawaii), Rus
sell Feingold (D-Wisconsin)" Kent Conrad (D-North Dakota), John
McCain (R-Arizona), Carol Moseler-Braun (D-Dlinois)l, Joseph
Lieberman CD-Connecticut), Carl Levm (D-Michigan). Additionally,
Senators Barbara Boxer (D-Califomia), John RockefeIJer IV (D
West Virginia), and Paul Sarbanes (D-Maryland) have been added
as cosponsors.
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Executive Summary of H.R. 2721
The proposed bill amends Title VII, the ADEA, the Rehabilitation Act of 1973 and Title V of
the U.S. Code to change the fedenll sector complaint process. The effective date is Jan. I, 1997. The
EEOC must issue regulations within 1 year of enactment Aggrieved individuals must fLle a complaint
within 180 days. The respondent agency must provide counseling and have a voluntary alternative
dispute resolution process available to the complainant Where the respondent agency has an ADR
process approved by the EEoc, there is a mandatory 2(kfay conciliation period, during .which the
complainant and an agency representative must meet once. The. agency must notify the complainant
in writing that he or she may, within 90 days, request a detennination by the MSPB, the EEOC,
through the negotiated grievance process, or fLle a .civil action. The agency is required to collect and
preserve information relevant to the complaint throughout the administrative and judicial process.
When the EEOC process is chosen, an AJ reviews the information collectedoy the respondent
agency. A complainant or an AJ may request that a member of the Commission stay a discriminatory
personnel action for 45 days (extendable). The AJ may order the respondent to produce information,
issue subpoenas to compel the production of documents or information, or the attendance of witnesses,
and issue adverse inferences against either party for failure to produce documents or information. The
AJ may dismiss frivolous claims prior to hearing. The AJ must make a determination on all claims
not dismissed. after an opportunity for a hearing, within 210 days of the date the complaint was filed
(760 days for class complaints). 'Either party may appeal the AJ decision to the EEOC within 90 days.
On appeal, the EEOC must accord substantial deference to the AJ's findings of fact. and shall affrrm
the AJ's determination if it is supported ·by a preponderance of the evidence and in accordance with
the law. The appeal decision must be rendered by the EEOC within 150 days.
The complainant may file a civil action within 90 days ofreceiving: notice of right to request
an administrative detennination; the AJ's detennination; or the EEOC decision on appeal. The
complainant may also'. fLle suit 20 days after the expiration of the time for an AJor EEOC
determination if no decision has been rendered. The filing of a civil action terminates the
administrative process. A complainant may fLle a civil action to enforce settlement agreements, AJ and·
EEOC orders. The EEOC may detennine that a federal employee who fails to comply with an AJ or
EEOC order may not be paid a salary during the period of non-compliance. Where discrimination is
found, a copy of the order shall be sent to the Office of Special Counsel for a detennination as to
., whether disciplinary action is appropriate.
'
The ADEA is amended to provide that age discrimination complaints are.processed like other
complaints filed under section 717 of Title VII, while preserving the right to byp~s the administrative
process andftle suit after giving notice to the EEOC. Title V is amended to eliminate mixed-case
procedures, and provides that a complainant must elect either the MSPB process, the grievance process,
or the Title VII process, by filing a complaint under Section 717 of Title VII.
A total workload of 45,730 complaints and 16,117 appeals is projected in the first year of
enforcement AJs are estimated to process an average of 65 complaint resolutions per year under the
new procedures, and appeals attorneys are estimated to process 130 decisions per year. Total cost
impact is estimated at $98,194,450 above current EEOC .federal sector expenditures with a one-year
implementation period, or ..$69,927,878 above current expenditures with a three-year implementation
period.
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Summary of H.R. 2721:
The Federal Employee Fairness Act of 1994
The proposed bill amends Section 717 of Title VII, Section 15
of the ADEA, Section 505 of the Rehabilitation Act of 1973,' and
Sections 7121 and 7702 of the Civil Service Reform Act. Under the
proposed process, respondent agencies would no longer have the
authority to investigate complaints of employment discrimination
brought against them.
The proposal also eliminates the current
mixed-case processing scheme, and requires that an election be made
initially under Section 717 of Title VII to have an administrative
determination of a complaint made by either the EEOC, the MSPB, or
under a negotiated grievance process.
,......
Title VII
Agency Process: Aggrieved individuals must file a complaint
within 180 days.
Complaints may be f:iled with the EEOC, the
. respondent agency, or any other federal agency.
A complaint
against an agency in the intelligence community must, however, be
filed with the respondent agency. If the complaint is filed with
an agency other than the EEOC, the agency must send a copy of the
complaint to the EEOC within 10 days of receipt. If the complaint
was .not initially filed with the respondent agency, the EEOC must
transmit a copy of the complaint .to the respondent agency within 10
days of receipt. The respondent agency is required to collect and
preserve documents and information relevant to the complaint
throughout the administrative and judicial process,. The EEOC must
issue rules concerning an agency's duty to collect and preserve
documents and information within 1 year of enactment.
The respondent agency must inform the complainant of the
applicable procedures, and deadlines, must make reasonable efforts
to conciliate each complaint, and must have a voluntary alternative
dispute resolution (ADR) process available to the complainant.
Where the respondent agency has an ADR process approved by the
EEOC, there is a mandatory 20-day conciliation period, during which
the complainant or representative must request and offer to meet
once with an agency representative. The EEOC must issue rules and
guidelines concerning ADR and conciliation processes within 1 year
of enactment.
The agency with which the complaint is filed must notify the
complainant in writing, that he or she may, within 90 days of
receipt of such notice, request a determination by the EEOC, by the
MSPB, through the negotiated grievance process, or file a civil
action. Where an EEOC-approved ADR process is in place, such a
request may not be made until after the expiration of the 20-day
conciliation period.
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A stay of a personnel action (either already taken or about to
be' taken) may be. requested by an employee at the conciliation
stage. 'A stay request would be filed with the EEOC, which must
appoint an AJ to review the request.
The respondent agency is
allowed. to comment to the EEOC on the st:ay request.
Complaints must be dismissed if a grievance has already been
filed on the same matter under 5 U.S.~. § 7121(d).
EEOC AJ Process: ,When a complainant requests that the EEOC
make a determination, the EEOC sends a copy of the complaint to the
respondent and must appoint an AJ within 10 days. The respondent
must send copies of the documents and information it has....collected
to the AJ within 5 days of notification that a request for a
determination by an AJ has been made.
The AJ reviews the
information collected by the respondent agency. If the AJ finds
that the agency has failed to produce the relevant documents and
information, the AJ may impose sanctions, including an adverse
inference, and require the respondent to obtain additional
documents or information.
After' exam1n1ng the information
submitted by the respondent, the 'AJ shall dismiss frivolous
complaints, complaints which have not complied with the mandatory
conciliation provision (where applicable), and complaints which
fail to state a claim for which relief can be granted.
Such
dismissals are appealable to the Commission within 90 days, or may
be the basis of a civil action by the complainant.
The AJ may issue subpoenas to compel the production of
documents, information, or the attendance of witnesses, and may
issue sanctions, including adverse inferences, against either party
. for failure to produce documents or information. The AJ may also
request that a member of. the Commission stay a discriminatory
personnel action for.4S days (extendable). The respondent agency
is allowed to comment to the EEOC on the stay request.
The AJ must make a determination on all claims not dismissed,
after an opportunity for a hearing, within 210 days of the date the
complaint was filed (760 days for class complaints). Discovery may
be conducted by a party to the extent deemed appropriate by the AJ.
During the hearing, the M must ensure that the record is developed
for a full and fair determination of the complaint. A transcript
of the, hearing, paid for by the respondent agency, shall be
provided upon reqUest 9f either party or the AJ.
EEOC Appeal Process: Either party may appeal the AJ decision
to the EEOC within 90 days of receipt. When the EEOC receives an
appeal, it will transmit a copy of the request to the parties and
the AJ. The AJ must send the record of the proceeding to the EEOC
within 7 days of receiving such notification. After providing the
2
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parties an opportunity to file briefs on the appeal, the EEOC must
issue an order either, affirming, reversing or modifying the AJ
decision within 150 days.
. On appeal, the EEOC must accord
substantial deference to the AJ's findings of fact, and shall
affirm the AJ's determination if it is supported by a preponderance
of the evidence and in accordance with the law.
'
Civil Actions:
The complainant mcty file a civil action in
district court for de novo review of a' complaint within 90 days of
receiving:
notice of
right
to
request
an administrative
determination; t.he AJ's determinationi or the EEOC decision on
appeal.
The complainant may also file suit 20 days after the
'expiration of the time for an AJ or EEOC determina&ion if no
decision has been rendered.
The' filing of a civil action
terminates the administrative process.
A complainant may' file a civil action in district court to
enforce a settlemerit agreement, an AJ order (which is not the
subject of an administrative appeal or a de novo law suit), and an
EEOC order (which is not the subject of a de novo law suit).
Remedies and Other Provisions: The respondent agency must pay
amounts awarded from its own funds, with interest.
Payment of
·awards, however, should not be made out of funds appropriated for
salaries and expenses. An agency must provide paid administrative
leave to complainants, and those participating for the benefit of
complainants, for both administrative and civil actions.
Where
discrimination is found, but the respondent demonstrates under the
evidentiary standard in 5 U.S.C. § 1221(e) that it would have taken
the' same action absent the discrimination, the court may grant
declaratory and injunctive relief, attorney's fees and costs, but
shall not award'damages or issue an order requiring any admission,
reinstatement, hiring, promotion or payment.
The .EEOC may
determine'that a federal employee who fails to comply with an AJ or
EEOC order may not be paid a salary during the period of non
compliance.
Where discrimination is found,' a copy of the -order
shall be sent to the Office of Special Counsel for a determination
as to whether disciplinary action is appropriate.
ADEA and CSRA
~:
The bill amends Section 15 of the ADEA to provide that
,a federal employee or applicant alleging discriminati9n may file a
complai!lt in accordance with Section 717 of title VII.
The
amendment preserves the current option for the ADEA complainant to
bypass the administrative process and file suit in district court
so long as 30 days notice is given to the EEOC of intent to file
suit.
Such civil action must be filed within 2 years of the
alleged discriminatory event.
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CSRA: Under Section 7121 of Title V, an employee may file a
grievance, but, as noted, filing such a grievance· requires the
dismissal of a subsequently filed complaint under Title VII.
Section 7702 of Title V is amended to eliminate mixed-case
procedures, and provides that a complainant must elect either the
MSPB process, the grievance process, or the Title VII process, by
filing a complaint under Section 717 of Title VII.
There is no
provision for EEOC review of MSPB dec~sions, or vice versa.
The
agency making a determination pursuant to this election must apply
the .substantive law of the agency that administers the law under
which the complaint is brought.
If the EEOC process is selected
and the EEOC dismisses the complaint as frivolous, for failure to
comply with mandatory conciliation requirements, or for·...failure to
state a claim, the complainant may raise matters which do not
involve 'discrimination under the grievance or MSPB process within
20 days;
Miscellaneous Provisions
Regulations:
The bill provides that the EEOC must issue
regulations within 1 year of enactment to assist agencies with the
provision that the collect and preserve documents and information
throughout the administrative and judicial process, and to
establish a uniform notice for actions filed under Section.717 of·
Title VII.
The EEOC must issue guidelines and standards on ADR
with~n 180 days of the date of enactment ... The EEOC must publish in
the Federal Register, within 21 months of the date of enactment,
the names of entities of the Federal government which provide ADR
processes approved by the EEOC. The EEOC must also issue rules to
en!:mre the protection of classified information and national
security information in administrative proceedings under Title VII.
OPM, in consultation with EEOC, must publish guidelines for
maintaining personnel records'.
The EEOC must issue rules
establishing a program and procedures to foster voluntary
settlement of claims (no time period givE:!n for publication) .
. Report to Congress: EEOC must include information concerning
employee participation in ADR programs and the effectiveness of
such· programs in its annual report to Congress.
Agencies are
required to provide information to the EEOC so that it can make
such reports.
Effective Date: The bill 'provides for an effective date of
January 1, 1997.
The amendments will apply only to complaints
filed on or after the effective da~e.
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Budget
The bill indicates that it is the sense of Congress that there
should be an increase in funding to the EEOC because of the
additional administrative responsibility imposed upon the EEOC.
A total workload of 45,730 complaints and 16,117 appeals is
projected in the first year of enforcement. AJs are estimated.to
process an average of 65 complaint resolutions per year under the
new procedures, and appeals attorneys are estimated to process 130
decisions per year. Total cost impact is estimated at $98,194,450
above Gurrent EEOC federal sector expenditures with a one-year
implementation period, or $69,927,878 above current exPenditures
with a three-year implementation period. These figures are based
upon projected clerical and support staff, computer and equipment
needs, overhead and staff training costs.
They do not include
other budget considerations, such as added infrastructure costs and
other operational costs, such as mailing and travel expenses, which
are difficult to estimate at this time.
The Office of
Communications-and Legislative Affairs has additional information
and charts which provide-more specific information concerning the
impact of this legislation upon the EEOC.
5
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H.R. 1111: The Federal Employee Fairness Act of 1993
The proposed bill amends Title VII, the ADEA, and the civil
service Reform Act (CSRA) to change the federal sector complaint
process.
It gives aggrieved individuals 180 days in which to
file a complaint and requires the agency to attempt conciliation.
The employee then elects a determination by MSPB, grievance
procedure or EEOC, as appropriate.
In the EEOC process, an A3
supervises discovery, can impose sanctions for inadequate
records, can request a Commissioner to stay a personnel action,
conducts a hearing, and issues a decision within 210 days of
filing (270 for class complaints).
Either party can appeal the
A3's decision to the Commission. The Commission mu~t accept the
AJ's findings of fact 'unless clearly erroneous and affirm if the
determination is supported by SUbstantial evidence. A decision
must be issued within 150 days.
Either the. complainant or EEOC
can bring suit to enforce a settlement, an A3's determlnation, or
an EEOC appellate decision. The bill also amends theAOEA to
provide that complaints of age discrimination will be processed
administratively and civil action can be filed in accordance w~th
§ 717 of Title VII.
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Executive Summary of H.R. 11-11:
The Federal Employee Fairness Act of 1993
The proposed bill amends Title VII, the ADEA, and the civil
Service Reform Act (CSRA), to change the federal sector complaint
process.
It gives aggrieved individuals 180 days in which to file a
complaint. The agency must attempt conciliation and, if
unsuccessful, must notify'the individual of the right to request
a determination by MSPB, grievance procedure, or EEOC, as
appropriate.
It must collect and preserve inform~tion throughout
the administrative and judicial processes, in accordance with
EEOC regulations.
If the individual selects the EEOC process, an AJ rev~~ws the
records collected by the agency, and can impose sanctions if they
are inadequate. He can request that a Commission member issue a
stay of.a personnel action. He supervises discovery, conducts a
hearing, and issues a decision within 210 days of filing (270 in,
class complaints). Either party can appeal the AJ's decision to
EEOC, which must accept his findings of:Eact unless clearly
erroneous and affirm if the determination is supported by
sUbstantial evidence, and must issue a decision within 150 days.
The individual can file suit within 90 d,:1Ys of receiving (1),
notice of the right to request an administrative determination,
(2) the AJ's determination, or (3) EEOC's decision. The
individual also can file suit 300 days after requesting and AJ
determination or 180 days after appealing to EEOC if no
determination or decision has issued. Finally, the ,individual or
EEOC .can bring suit to enforce a settlement, an AJ's
determination,or an EEOC appellate decision.
The bill requires interest on back pay awards, requires agencies
to pay awards from agency funds and to provide official time or
paid leave to complainants during the administrative and judicial
process, and requires discipline of persons found to have
discriminated. It requires EEOC to issue regulations within one
year'that define the agency's duty to preserve and collect
documents and that prescribe uniform written notices required
under § 717 of Title VII.
The bill amends the ADEA to provide that complaints of age
discrimination will be processed administratively and that civil
actions can be filed in accordance with § 717.
It retains the
current notice of intent to sue, as an alternative to filing an
administrative complaint, but require~ that such a suit be filed
not less than 30 days after giving notice or more than two years
after the discrimination occurred.
The bill amends' the CSRA to delete the Special Panel and mixed
case procedures, and provides for processing of such complaints
under § 717.
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summary ot H.R. 1111: The Proposed
Federal Employee Fairness Act ot 1993
The Federal Employee Fairness Act of 1993 proposes to amend
§ 717 of Title VII of the civil Rights Act of 1964, § 15 of the
Age Discrimination in Employment Act of 1967 and §§ 7121 and 7702
of the Civil Service Reform. Act of 1978. The most significant
changes are proposed in the amendments to§ 717 of Title VII,
which are explained below. The bill proposes to amend the Age
.Discrimination in Employment Act to provide that complaints by
federal employees or applicants will be processed in acco~dance
with § 717 of Title VII. The Civil Service Reform Act amendments
alter the election mechanisms for federal employees (among EEO
complaint, grievance or MSPB appeal) and eliminate much of the
current mixed case scheme.
•
Proposed Amendments to Title VII:
Agency Process: In the proposed bill, a federal employee or
applicant (complainant) must file a complaint alleging
discrimination with the head of the agency where the alleged
discrimination occurred. or with the EEOC within 180 days after
the alleged. discrimination occurred. The respondent agency has
30 days (extended to 60 with the complainant's consent) to
conciliate the complaint. 1 If conciliation does not result in
resolution of the complaint, the respondent must give written
notice to the complainant that he or she has 90 days either to
file with EEOC a request for a determination by MSPB or by
negotiated grievance procedure2 or by an EEOC administrative
judge, or to file a civil· action for de novo review in district
.court. The bill also requires that the respondent agency collect
and preserve documents and information relevant to the complaint
throughout the administrative and judicial process in accordance
with regulations issued by EEOC.
EEOC Administrative Judge Process:· When a complainant
requests a determination by an EEOC administrative judge, EEOC
will send a copy of the complaint to the respondent and appoint
an administrative judge. The respondent must send copies of the
relevant documents and information it has collected to either the
1 The bill contains a general provision requiring agencies to
make counseling available to those employees who choose to notify
the agency that they believe discrimination has occurred and to
establish a voluntary alter·native dispute process.
Neither
counseling nor mediation are required, however, as part of the
formal complaint process. Conciliation is proposed in place of the
counseling stage required by the current regulatory system.
2
If the complainant requests a determination by MSPB or
through the negotiated grievance procedure, EEOC must send the
complaint to the appropriate agency for determination.
�MSPB or the EEOC, depending on the complainant's election. The
administrative judge will determine if the information supplied
by the respondent is complete and accurate and, unless good cause
is shown, will impose sanctions if it is not. If an
administrative judge determines that reasonable grounds exist to
believe a stay of a personnel action is necessary, he or she may
request that a member of the Commission issue a stay of 15 days
(with possible extensions of 30 days or more).
The bill provides that administrative judges will dismiss
frivolous claims and complaints that fail to state a claim under
Title VII. If a complaint is not dismissed, the proposed bill
provides opportunity for discovery by either party to the'extent
the administrative judge believes it necessary, with sanctions
imposed for a party's failure to respond. The bill also provides
an opportunity for a hearing. It provides for hearing
transcripts upon request by either party or the adminlstrative
judge, the cost to be borne by the respondent. The bill gives
administrative judges authority to control hearings, and gives
administrative judges and the EEOC subpoena authority. within
210 days of the filing of the complaint (or 270 for class
complaints), the administrative judge must issue a written order
determining the merits of each claim. 3 The administrative
judge's determination will contain findings of fact and
conclusions of law and will provide notice of the right to sue,
or to appeal the determination to the Commission.
The bill provides individuals with 180 days to file a
complaint and 90 days to decide whether to pursue it through the
EEOC, MSPB or grievance process. It allows an EEOC AJ 210 days
(270 in class complaints) to review the record, impose sanctions,
process requests for stays, supervise discovery, hold a hearing,
and issue a decision, and allows the Commission 150 days (with a
possible 30 day extension) to issue a decision on appeal.
Additional time frames include: 10 days for EEOC to transmit
complaints to agencies; 1'5 days for non-respondent agencies to
transmit complaints to EEOC; three days for respondent agenices
to inform EEOC of complaints; 10 days for transmittal of
complainant's request for MSPB or grievance determination by
EEOC; seven days for transmittal of the record of hearing by an
AJ when an appeal is filed.
EEOC Appeal Process: Either party may appeal an
administrative judge's determination within 90 days of its
receipt if the complainant has not filed a suit in district
,
,
The time limit for an administrative judge to issue' an order
will not begin to run until 30 days after the administrative judge
is assigned to the case if he or she cert,ifies in writing that the
30 day period is necessary to complete the administrative record.
The bill also contains provisions for an additional 30 day
extension of the. time limit and for further extension by the
Commission if manifest injustice wOl,lld occur without the extension.
3
�court. The bill provides for ·enforcement of interim relief if an
appeal or lawsuit relates to only part c)f a case. When the EEOC
receives a timely appeal, it will send copies to the other party
and the administrative judge. . The administrative judge then must
transmit the hearing record and information submitted by the
respondent to the Commission. After allowing'the parties to
submit briefs, the EEOC will issue an order affirming, reversing
or modifying the administrative judge's order within 150 days of
receiving the appeal (with a possible extension of an additional
30 days). The administrative judge's determination will be
affirmed if supported by sUbstantial evidence and his or her
findings of fact will be conclusive unless the Commission
determines they are clearly erroneous. The Commission will
provide the complainant with a.notice of right to sue in addition
to the order on appeal.
Suit Rights: The bill provides that a complainan~ may file
a lawsuit in district court for de novo review of a complaint
within 90 days of receiving:
(1) notice from the agency that the
complainant may file a request for an administrative
determination by EEOC, MSPB or through the negotiated grievance
procedure, or (2) an administrative judge's determination, or (3)
the Commission's order on appeal. In addition, a complainant has
exhausted administrative remedies and may file a lawsuit in
district court during the period beginning 300 days after
requesting an administrative judge's determination and ending
when the administrative judge issues such determination or during
the period beginning 180 days after filing an appeal and ending
when EEOC issues an order on appeal. When a lawsuit is timely
filed, the administrative judge/s or Commission's jurisdiction
over the case terminates.
.
.
In addition, the bill provides that a prevailing complainant
or the EEOC may bring a lawsuit in district court to enforce a
settlement agreement, an administrative judge's order (if it is
not appealed and if no de novo lawsuit has been filed) or the
Commission's order on appeal (if no de novo lawsuit has been
filed) •
.
, Remedies and Other provisions: The proposed bill provides
for interest on back pay. It provides that amounts awarded
against a respondent will be paid by funds made available to that
respondent by appropriation or otherwise. It also provides for
official time for the complainant for the administrative
complaint and paid leave for the complainant for time spent on a
civil action (to be defined by EEOC. in regulations). The bill
requires that· a respondent discipline an individual found by EEOC
or a court to have engaged in unlawful discriminatory conduct and
provides for referral to the Office-of Special Counsel of cases
where EEOC finds that the sanctions imposed were inadequate.
3
�Proposed Amendments to the Age Discrimination in Employment Act
and the civil Service Reform Act:
ADEA: The bill proposes to amend S 15 ,of the ADEA to
provide that a federal employee or applicant alleging
discrimination prohibited by the ADEA shall file a complaint and
a civil action in accordance with S'717 of Title VII of the Civil
Rights of 1964, as amended. The bill also amends the provision
, in S 15 covering notices of intent to sue td require that if a
complainant does not file an administrative complaint, he or she
may file a lawsuit not less than 30, days after filing a notice of
intent to sue with the EEOC and not more than two years after the
alleged violation occurred. (The notice of intent to sue
proposal eliminates the current requirement that the complainant
file the notice within 180 days of the alleged discrimination,
and adds a two year statute of limitations.)
CSRA: The bill proposes to amend S 7121 of the civil
Service Reform Act to delete the current provision requiring
election between the EEO process and the negotiated grievance
procedure. The bill places the election requirement currently'
found in S 7121(d) into S'717 of Title VII.
Under the bill all federal employm1ent complaints will come
to EEOC after the r~spondent conciliates for 30 days (extended to
60 days with the complainant's consent), with the complainant
electing among three processes, the administrative and judicial
procedures provided for in SS 7701 ,and 7703, a negotiated
grievance procedure under S 7121 'or an EEO complaint under S 717
of Title VII, .when he qr she sends the complaint to EEOC. The
bill proposes to eliminate the current lnixed caSe scheme in which
complainants may request EEOC review of MSPB decisions and vice
versa. The bill eliminates the Special Panel procedures
currently found in S 7702. Proposed new S 7702 provides that an
employee must raise a mixed case (an appealable action involving
an allegation of discrimination) with EEOC and then elect among
the three processes noted above. ,If . thE:! complainant elects, the
EEO process and EEOC dismisses the case as frivolous or for
failure to state to state a claim, the complainant will have 90
days to raise the matter with the MSPB or under the negotiated
grievance procedure absent the allegations of discrimination.
Miscellaneous Provisions:
Regulations: The bill provides that EEOC. must issue
regulations within one year of enactment to assist agencies with
the provision that they collect and preserve documents and
'information throughout the administrative and judicial process,
and to establish a uniform written "official notice to be used to
comply with § 717 of Title VII.
4
�.
~
.
Effective D'ate and Application: The bill provides for an
effective date of January 1, 1994.
The amendments will apply to
complaints filed on or after the effective date.
�MA.JOR'rv MeMBERS:
MINORITY MEMBERS;
. MAiTHEW G. MARTINEZ. CAUFORNIA, CHAIRMAN
HARRIS w. FAWELt! ILLINOIS
E, THOMAS COLEMAN, MIS ::lOVRl
DALE E. l(JtDH. MICHIGAN
NITA M. LOWEY, NEW YORI(
RON DE lUGO, VIRGIN ISLANDS
WiLLIAM 0, fORO, MiCHIGAN,
Bltl BARRETT, NEBRASKA
EX OffiCIO
12021225-1850
COMMITTEE ON EDUCATION AND LABOR.
u.s. HOUSE OF REPRESENTATIVES
B-34~
RAYBURN HOUSe OFFice BUILDING
WASHINGTON, DC 20515-6106
SUBCOMMITTEE ON HUMAN RESOURCES
STATEMENT OF CHAIRMAN MATTHEW G. MARTINEZ
JQINT OVERSIGHT HEARING OF
EDUCATION AND LABOR SUBCOMMITTEE ON
EMPLOYMENT OPPORTUNITIES
AND
POST OFFICE AND CIVIL SERVICE SUBCOMMITTEE ON
CIVIL SERVICE
REGARDING
HR 3613. The Federal Employee Fairness Act of 1992
April 9, 1992
2175 Rayburn HOB
Beginning at 10:00 AM
Good morning. I would like to thank Chairman Sikorski and Chairman Perkins for
scheduling this important hearing and for their leadership on behalf of federal employees in
supporting this legislation. In addition. I take special pleasure in thanking today"s witnesses
,.
who come before us to describe their painful experiences.
What is striking about the unusual public attention this bill has received: and the reason I
bring it up today. is the fact that the country is openly discussing the issue of work place
discrimination and harassment in a way it never has before. Fro~ the conversations I've had it
is very apparent that people realize job discrimination and harassment on the job is a reality in
Amenca.
. .
What is also striking is that federal employees are' vividly aware that the very system
currently in place to adjudicate harassment claims is so completely outdated and ineffective
that most choose not to use it. It was pointed ,out. to me that even Anita Hill. a successful
attorney, decided not to pursue her claim through this system.
"
For the last several years, Chairman Sikorski and'l have worked to revamp this system:
We jointly convened several hearings to hear from experts fr.om the Equal ,Employment
Opportunities Commission. interested labor and civil rights groups, and victims of this
..
"
' , '
inequitable and ~rthaic system.
As a r:esult of these hearings. we introduced HR 3613 on October 22, 1991, with the full
support of over 32 of our colleagues. Currently there are nearly 70 other Members who have'
now signed on. The bill also has the support of organizatioRS like American Federation of
Government Employees. National Treasury Emplo.)'ee Union. National Federation of Federal
Employees. Washington Lawyers Committee on CivIl Rights Under Law. Blacks in Government.
and Federally Employed Women.
'
,
At the time of introduction. this reform package 'was the first real proposal to revise the'
procedures governing the processing of equal employment opportunity claims since 1972. when
�....•
',
the protections of Title Vn.'of the Civil Rights act were extended to federal employees and the
Executive Branch. Since that time however. the EEOC has approved revisions of the
regulations. These new rules are known a~ the Part 1614 regulation~. .
I am not going to go into great detail about the bill and the 1614 regulations here today.
But I would like to point out several differences between the two approaches.
First. THE BILL WOULD TAKE FEDERAL AGENCIES OUT OF THE BUSINESS OF
JUDGING THEMSELVES. Currently federal agencies. and other federal units of government.
are responsible for investigating and ruling on discrimination cases brought against them. In
addition. they are free to reject the fmdings of the Equal Employment Opportunities
Commission. an independent agency chartered to investigate discrimination claims.
The bill would end this inequity caused when the fox guards the hen house by
transferring agency adjudicating to the EEOC.
'......
Second. THE BILL ELIMINATES DUPLICATION IN THE PROCESSING OF
DISCRIMINATION CLAIMS. Each agency is required to keep their own equal employment
opportunity staff. Currently there are over. 120 different agencies and units of government
that are covered by the existing system.
The bill would greatly enhance tlle accountability for managing the processing of
discrimination claims by placing principle responsibility in ONE AGENCY AND NOT MANY
AGENCIES. The agencies would. however. still retain critical responsibilities for counseling
complainants. attempting to resolve the claims and gathering relevant records.
Third. THE BILL WOULD BRING SEVERAL TIME LIMIT PROVISIONS THAT
CURRENTLY APPLY TO THE PRIVATE SECTOR TO FEDERAL EMPLOYEES. These time
limitations would greatly streamline the process. For instance, the bill would extend the time
within which discnmination claims can be filed from the current 30 days for the federal sector
to 180 days. as is the case in the private sector.
Fourth. THE BILL ENSURES THAT A HEARING WILL BE BASED ON A COMPLETE
AND FAIR RECORD. . The conflict of interest of having agencies· be responsible for
investigation discrimination claims against them has often produced inaccurate or inadequate
files on which to base fair decision.
The bill gives the EEOC the responsibility to ensuring that the record is complete and
accurate. In addition. the administrative law judge responsible for adjudicating the case would
have the authority to rule against or sanction an agency if the record is incomplete.
Fifth. THE BILL PROVIDES THE SAME PROCEDURAL IMPROVEMENTS TO
VICTIMS OF AGE DISCRIMINATION. Federal employees currently have to follow a
'different adjudicative process if they want to bring a claim of age discrimination. The bill
amends the Age Discrimination in Employment Act to adopt the same refinements the bill
makes to claims pr-ocessed through Title VII of the ~ivil Rights Act of 1964.
Sixth, THE BILL STREAMLINES -THE PROCESS BY WHICH "MIXED CASES" ARE
ADJUDICATED. Mixed cases. which involves the jurisdiction of both the Merit Systems
Protection Board. currently are adjudicated in separate system,s.
The bill would give the
claimant of a "mixed case" the option of pursuing their claimln either one. or both. of the
relevant systems. The different claims would not au'lomatically be separated.
Lastly. THE BILL ALLOWS CLAIMANTS FROM THE EEOC WHO FILE AGAINST
THE EEOC TO HAVE THEIR CLAIMS HEARD BY AN OBJECTIVE PARTY. It is the
current practice throughout the system that cases involving discrimination claims against parties
�,
I'
..
~
< •
who would be responsible for gathering investigatory data would be contracted out to other
agencies for investigation. The bill allows this practlce to remain in tact for EEOC claimants.
and such claims may be contracted out to another agency.
. I am encouraged by the recent action of the EEOC and of Chairman Evan Kemp in taking
some forceful action to reform this process. However. I am troubled by the regulations that
. have been approved. I will only .Outlme a few primary concerns.
First. Part 1614 regulations do not fix the inequity of the fox guarding the hen house
because EEOC decisions are not finaL Agencies will stlll have veto power over decisions.
Secondly. Part 1614 regulations will not reduce any administrative burden on the part of
the agencies because they will still be required to review and rule on EEOC decisions. The
duplication of effort still exists.
.......
',
Thirdly. although Part 1614 makes some improvements in the area time 'limits. these
deadlines do not solve the inefficiency of the system because they are not enforceable by the
EEOC. Agencies have no real incentive to meet these deadlines.
Fourth, while 1614 claims to make modifications. it merely compounds existing problems
for the victim. The federal agency would continue .to investigate Itself. with an untenable
process for reimbursemel!t of EEO~ ~ntervention in investigati~ns. and decisions would still be
consensual by the agency Itself. ThIS IS a preposterous abommatlon of due process.
In closing I would like to briefly touch on the issue of funding for this bill. I am aware
of criticisms that the EEOC is already burdened by the new responsibility of the Americans
with Disabilities Act. and the limited funds to handle those claIms. However. the General
Accounting Office (GAO) study released in March'regarding what the Cabinet level agencies are
currentl}: spending on counseling and processing discrimination complaints reveals that the cost
of this bIll would be more than offset by cost savings on the part of agencies.
The study 9.uestioned 29 agencies about the costs associated with investigating. counseling
and processing dIscrimination claims against them. The study found that these agencies are
spending an estimated $139 million annual to handle these claIms. When you understand that
these agencies will no longer be charged with some of the responsibility they currently have.
the possibility .Of tremendous savings becomes obvious.
As Chairman Kemp stated in his interview with the Washing ten Pest en Match 4. 1992.
giving the EEOC the autherity to make this system werk lies with Cengress. It is my earnest
hepe that we meve quickly te enact this legislatien. I think it has been far. too long in refining
thIS ?rchaic system. Federal employees have been treated as secend class citizen~ by this system
.
and It should not be tolerated any lenger.
I thank my colleagues again for their leadership in convening this important hearing. I
know their constituents whe are federal employees are likewise thankful. I look forward te
hearing from these witnesses and will net delay their te~timony any further.
�statement of
American Association of Retired Persons
American Federation of Government Employees
Blacks in'Government
Federally Employed Women, Inc.
Federally Employed Women Lega,l & Education F,'J.l1d
George Chuzi of Kalijarvi & chuzi
IMAGE
Mexican-American Legal Defense & Education Fund
NAACP Legal Defense & Educational Fund, Inc.
National Federation of Federal Employees
,
National Treasury Employees Union
National Women's Law center
Terris, Pravlik & Wagner
Washington Lawyers committee for civil Rights Under the Law
Women's Legal Defense Fund
Before
The Subcommittee on Employment Opportunities
,of the
House Committee 'on Education and Labor
and
The Subcommittee on civil Service
of the
House Committee on Post Office and Civil Service
April ,9, 1992
�Weare pleased to appear bef.ore the Subcommittee on Employment
opportunities and the Subcommittee on civil Service to comment upon
the Federal Employee Fairness Act and upon the urgent need for such
legislation.
There
should
administrative process,
be
no
question
that
the
existing
by which federal workers may challenge
... " ....
employment discrimination to .which· they· have
fundamentally flawed.
in
all
protected
religion,
age,
been exposed,
is
'This process was designed to cover, workers
categories
and disability.
race,
color,
Unfortunately,
sex,
ethnicity,
for years this
system has poorly served the federal government and its employees.
While we applaud the . EEOC • s ef·forts, spanning more than a decade,
to address. these problems, we must 'conclude that the regulatio~s
,
that its 29 C.F.R.
§
.
1614 will fail to correct many of the existing
flaws in this system. l
While we believe that some provisions of
the Federal Employee Fairness Act require reexamination, we fully
support this Bill.
I. The Federal EEO Administrative Process
Remains Fundamentally Flawed
We need not look far or hard to·find compelling evidence that
the existing EEO administrative process is riddled with defects.
The
Congress,' including
these
subcommittees,
has
compiled
an
extensive record from Cl parade ofwi,tnesses I including victims and
These' regulations, scheduled to ..J:>ecome effective -on
October 1, 1992, will be codified at 29 C.F.R: §'1614 and have,not
yet been formally published. There:fore, we will refer to them a's
the § 1614 regulations and to the appropriate subparts.
�professionals
intimately
acquainted
with
this
process,
which
-demo.nstrates that this system needs to be fundamentally overhauled.
And,
virtually
every
Chair of
the
EEOC
since
1972,
when the
protections against employment discrimination were extended to
federal employees,2 has recognized that this system has fallen far
short of the high expectations that Congress has had for this
system.
Not surprisingly, therefore, bipartisan support exists to
refashion this system.
At the hearing jointly held
~~fore
these
subcommittees on March I, 1990, extensive evidence was presented
for
the
record of the deficiencies
administrative process. 3
of
the
federal
sector EEO
Since then, these subcommittees have also
heard from victims of this process at hearings held on August 1,
1990 and November 20, 1991, at which time we were reminded of the
high price that is daily paid in pain and suffering by those
victims of discrimination for whom the noble promise of this system
is really a cruel hoax."
on
Employment
And, years before then, the Subcommittee
and Housing
of
the
House Government
operati~n's
2
The Age Discrimination in Employment Act (ADEA) was
extended to federal employees in 1974.
See Pub. L. 93-259, 88
Stat. 74 (1974).
3
See Subcommittees on Employment opportunities '& Civil
,Service, Joint Oversight Hearing 'on EgualEmployment Opportunity:
Commission's Proposed Reform of Federal Regulations, 101st Cong.,
2d Sess. (1990) ("Joint oversight Hearing lf ) .
4
The first hearing was conducted on August 1, 1990 and the
proceedings
are
reported
in
Subcommittees
on
Employment
opportunities &- Civil Service,' Joint Oversight 'Hearing on Equal
Employment Opportunity: Complaint Process, 101st Cong., 2d Sess.
(1990). The second hearing was held on November 20, 1991 and the
proceedings
are
reported
in
Subcommittees' on 'Employment
opportunities & Civil Service, Joint oversiq!l.t Hearing on Victims
ofEEO Complaints Process, 102nd Cong., 1st ~ess. (1991) .
....
2
�committee conducted a series of four hearings on the,shortcomings
of this process. 5
Together,
these hearing records and reports
comprise hundreds of pages of documentation in painful detail of
the
extensive
and
entrenched
problems
that
have
for
years
undermined the legitimacy and effectiveness of this system.
In addition, the remarks of the Chairs of the EEOC, the agency
entrusted
with
responsibility
for
administering
confirm that this system is badly in need of repair.
J.
Kemp,
this
process,
Cqqirman Evan
Jr. testified two years ago before these subcommittees
that:
As a former federal employee who fil't9d a complaint of
discrimination against my agency, I know well the
shortcomings of the current system from a complainant's
point of view. The criticisms heard most often are:
1.
The system is too complex; there are too many steps
and pitfalls for the unwarYi
5
The first hearing was conducted ,on October 8, 1985 and the
proceedings are reported in Subcommittee on Employment and Housing,
Processing EEO complaints in the Federal Sector--Problems and
Solutions, 99th Cong., 1st Sess. (1985).
The second hearing was
held on June 17, 1986' and its proceE~dings are reported in
subcommittee on Employment and Housing, Processing EEO Complaints
in the Federal Sector--Problems and Solutions (Part 21, 99th Cong. ,
2d Sess. (1986). The third hearing was held on September 25~ 1986
and its proceedings are reported in Subcon~ittee on Employment and
Housing, Processing EEO Complaints in the Feaeral Sector--Problems
and Solutions (Part 3), 99th Cong., 2d Sess. (1986). Thefourth
hearing was held on June 25, 1~87and its proceedings are reported
in Subcommittee on Employment and- Housing, Processing of EEO
Complaints in the Federal Sector: . Problems and Solutions, 100th
Cong., 'lst Sess. (1987) ("Fourth Hearing").,'
The findings and recommendations from these' hearings were
reported on November 23, . 1987 and appear in Committee on Government
Operations, overhauling the Federal Complaint Processing System: A
New Look at a. Persistent Problem, H. R. Doc~ NO. 100-456 , 100th
Cong., 1st Sess. (1987).
3
':: :
�2. \ There is a perceived conflict of interest in having
the accused agency control the development; of the record;
3.
There are
decision; and
inordinate
delays . to
get
to
a
final
4. . There is a lack of sanctions against agencies for
inadequate investigations and inexcusable delay.
These problems with the process disadvantage everyone
involved, most particularly federal ,Yorkers. 6
Before him,
Clarence 'Thomas I
who was then Chairman of the
EEOC, repudiated this administrative process.
Chairman....T homas was
asked: "[ I] s the message t.o Federal workers that if you can afford
to hire an attorney you I re better off doiIig so and going to court
right away?"
He replied:
The amount of time that it takes for that· process to end
and then be reviewed by EEOC admittedly -- I think there
is enough blam~ to go around for everybody -- it takes
too long. If there is a way to circumvent that process
- and that includes going to Federal court -- until that
is corrected, then I would have to suggest that would be
the best way to gO.'
This fundamental lack of confidence from the Chairman of the agency
charged with overseeing this process is a
~rofound
indictment of
this system.
And, Eleanor Holmes Norton, who has been the Chair of the EEOC
and is a now meinber. of the civil service Subcommittee, commented at
an earlier hearing before these Subcommittees that:
The inherent conflicts· of interest,; 1:he time delays,· the
complexity cif the machinery, and the lack of sa,Qctions
have produced a situatio~ in which .government .workers . are
not afforded the rights that.areavailablet6 workers in
,
See Joint oversight Hearing, at 7 (statement of EvanJ.
Kemp, . Jr.) •
6
1
Fourth Hearing, a·t 59-60.
4
"
�the private sector. The irony is that Federal employees
are second-class citizens in a complaint system that is
supposed to eliminate second-class status . . . . I cannot
overestimate the urgency of change. It is appalling that
the government allows for itself what it does not permit
or countenance in the private sector.
Together, this documentation and these disturbingobservations
from Chairs of the EEOC spanning the political spectrum compel the
~onclusion
that there are
the,EEO complaints
co~on
adjudicat~on
and enduring problems afflicting
process which require,C\.n immediate
legislative solution.
And,
these problems,
documented over more than a
continue to plague this system.
demonstrate
the
currency
of
decade,
Although there are many ways to
the
defects
in
this
system, ,two
examples should suffice.
First,- the pace at which complaints are adjudicated in this
system continues to be intolerably slow.
In Fiscal Year 1990, the
most recent year for which. data is publicly available from the
EEOC, the average time consumed in adjudicating EEO claims on the
merits was 526 days.8
And, $ome agencies operated much more slowly
than at even this unacceptable rate.
took 1083 days
-~
The Department of Justice
nearly three years -- to decide these claims on
the merits 9 i while the Department of Housing and Urban Development
took 1002 daysl0 and the Department of state took 1466 days to
8
See EEOC, Report-on Pre-Complaint Counseling & Complaint
Processing for FY 1990,at 39 (1990) ("EEOC Report for FY 1990").
9
See id. at A-16.
10
..
5
�adjudicate these claims administratively.1l
And, the pace has not improved over time.
adjudicate claims on the merits in FY 1988
1983 was
524 days. 12
Although the
The
averag~
time to
was 607 days and in FY
intolerably slow speed with
which these claims are processed has been recognized as a problem
for years, the pace has not improved.
These
time
delays
are
simply
intolerable,
robbing
the
complaints processing system of any legitimacy as an' effective
means to resolve EEO claims.
systems
with
many
steps,
And, these delays are a product of a
administered "by
different
staff
at
different stages, in which there have been no deadlines requiring
the agencies to complete the processing of claims in a
fashion.
timely
In addition, since the complaints processing is conducted
separately
at· each
agency,
there
are
complaints
adjudication
systems operating simultaneously at nearly 120 agencies, some more
efficiently
than
others,
but
none
,operate
with
any
real
accountability to the EEOC or to "the Congress.
Second,
the
current
system
entrusts
to
the
agencies
the
investigation and adjudication of the claims brought against them,
creating the perception, and unfortunately the reality at times, of
a
serious and de'billtating confli'ctof interest.
Even though
claimants may elect to have their claims tried before independent
administrative judges at the . EEOC, those judges issue decisi()ns
that are, merely recommendations" that the agencies are
11
id. at A-17.
.p
12
See EEOC Report for
FY-198~,
6
at 34.
free to
�to
findings
th~y
that
hadn't discriminat:ed than that they had
committed discrimination. IS
No legal system can achieve legitimacy,
even if it had no
.
.
other afflictions, with disparities in treatment of this enormity.
It· s
not
surprising,
that
then,
complainants
report
an
overwhelming desire to avoid this complaints adjudication process
and either proceed through the negotiated grievance process, when
they are covered by a collective bargaining agreement, or go to the
., .......
courts at the earliest possible time.
. Few,
however,
have the
benefit of
legal representation or the resources to engage in
protracted
and
therefore,
this process affords the only forum' in which their
expensive
litigation.
claims of. discrimination .. can be heard.
To
most
complainants,
And these victims deserve
a level field •...
. Conflicts of interest and time 'delays are but two of :the many
shortcomings of the present EEO complaints adjudication systems
through which federal employees w~th equal employment claims are
required by statute.to ·proceed.
range
fr~m
other problems with the system
the inadequacy of the factual records compiled by the
agency-conducted . investigations
and
the
limited
authority
of
adlninistrative judges to compel the attendance of witnesses at
hearings of these. claims, to
the~
overly complex and slow system for
15
Disparities of comparable magnitude have appeared every
year for. which this data has been . published.
In FY. 1983, for
example, agencies rejected 39.4% or'the findings of discrimination
while rejecting only 0.4%·of the findings of no discrimination and
in FY 1985,
agencies rejected 45.5% of the findings of
discrimination while rejecting only 1.3% of the findings of no
discrimination. See EEOC Report forFY 199ar at 50-51.
8
�reject or modify.
Therefore, the agencies decide the cases that
are brought against them, relying largely upon evidence obtained.
from investigations that the same agencies also conduct.
The extent of this conflict of interest can be measured by
comparing
the
receptivity
of
the
agencies
to
findings
of
discrimination, recommended by the EEOC administrative judges, with
their receptivity to recommended findings of no discrimination.
Agencies that approach discrimination
claims with
would be expected to treat these findings alike,
impartiality
rejecting and
accepting these findings with comparable frequency.
however, falls far short of this expectation.
for example,
executive agencies as a
'!he reality,
In Fiscal Year 1990,
group rejected 60% of the
recommended findings of discriminati'on while rejecting only 0.5% of
the recominended findings of no discrimination. 13
This disparity is
ofa staggering significance.
It reflects that executive agencies
are
willing
nearly
120
times
more
to
reject
a
finding
of
discrimination than a finding of no discrimination •.
This problem too appears entrenched.
Disparities of dramatic
proportions have recurred each year for which the EEOC has made
this data publicly available.
In Fiscal Year 1989, for example,
executive? agencies rejected 58.5% of the findings of discrimination
recommended by EEOC Administrati,ve Judges 'Ylhile rejecting only 0.2%
of the recommended findings of, no discrimination. 14
In FY 1989,
therefore, executive agencies were about 290 times more receptive
13
See EEOC Report for FY 1990, at 50-51 •
14
See EEOC Report for FY 1990, at 50-51 •
.
7
.;
�the
of EEO claims mixed with alleged civil service
adj~dication
violations I
managers
to
whose
the
frequent
conduct has
reluctance
been
proved
of
to
agencies
be
to
punish
discriminatory.
Together, these obvious weaknesses in the current system, and the
broad,
bipartisan consensus that this system poorly serves our
government, should ring·a" clarion call for fundamental change.
II.
The EEOC's New
1614 Regulations
§
00 Little to Remedy These Persistent Problems
Re~eDtly,
the EEOC issued new rules that will supplant the
existing system for adjudicating EEO complaints in the federal
sector. 16
§
These regulations, which will be codified at 29 C.F.R.
1614, have been. under consideration and review at the EEOC for
more than a decade. 17
afflicting
the
While they may address some of the defects
administrat:ive
process,
there
is
much
that
regulatory change, constrained 'asit is by political and statutory
limitations,
cannot
change.
acknowledged last month,
Even
the
Cha irman
of
the
when the final version of the
§
EEOC
1614.
regulations were issued, that the final solution to the problems
afflicting
this
process
must
be
addressed
by
Congress. 18
Accordingly" while we commend the EEOC for its efforts to address
the faults of the complaintsadjudicaticm system, the regulations
that it has issued are more noteworthy for the areas they do not,
16
The current system
29C.F.R. § 1613.
is governed by regulations found at
·n.
.
Since these rules wil l appear at 29 C.F.R. § 1614, we. will
refer to them as the § 1614 regulation~.
,
18
,See Priest, "EEOC Revises Bias,
Washington Post (March 5, 1992).
•
9
D~ability
Rules, tt The
�and probably cannot; address than for the improvements that are
accomplished.
The
most
significant
development
achieved
fixE~d
regulations is the establishment of
by
these
new
periods within which
agencies must conduct investigations of EEO claims and within which
Administrative Judges at the EEOC must issue their decisions .19
co~plainant
In the past, only the
was subject to time limitations
within which he or she was required to-act, leaving the'?gency and
the EEOC unconstrained by any time limitations within which each
must perform its duties.
These new rules will bring some measure
of parity between the parties to act in a timely fashion and may
speed up the processing of some claims.
Change in these areas is
a welcome development.
But, we remain concerned that even these modest improvements
will
have
limited
success.
In
ordE~r
for
these
reforms I
particularly the deadline for completing investigations, to have
any signif icant impact, there must be' an
~nforcement
mechanism that
will impose real consequences if an agency fails to act in a timely
fashion.
and
Only then will agencies devote the necessary resources
attention
to
the
vigorous
and
expeditious
completion
of
however,
the
investigations.
As
the
teeth' behind
this
time
limitation,
regulations simply authorize Administrative Judges to draw adverse
-
'
inferences from the absence of materials that should' have been
included within an unfinished investigation.
But, Administrative
~
19
See 29 C . F . R. § § 1614. 108 .. ( f),
,10
• 109
( g) .
�Judges have had such authority in the past and failed to exercise
it with the frequency that seems warra,nted.
regulations continu~,
agencies
de,cisions
agencies
the
may
as Title VII .requires,
discretion
issued
by
More importantly, the
to
reject
or
Administrative
repudiate
a ,judge'S
to entrust to the
mOdify
recommended
Accordingly,
Judges.
reliance
the
upon
such
the
adverse
inferences in rendering the recommended decision.
The sanction
that may be imposed for failing to conduct a proper
~n, d
..
complete
investigation in a timely fashion, there{ore, lacks any real teeth
as
long as the agencies retain final de:cisionmaking authority.
Since this time limitation for the completion of investigations is
only
as
effective as
the
sanctions
which 'may
be
imposed
for
noncompliance, we have little hope that real' expedition will be
achieved by this rule:. 20.
While the regulations achieve other healthy changes, including
a
brief
expansion
of
the
time
within
which
to
initiate
the
complaints adjudication process and the more direct involvement by
the Administrative Judg,es in overseeing discovery by the parties,
they are modest departures from the cumbersome, ineffective system
that is currently in use.
Indeed,
what is most striking about
these new regulations is that they change little of
the current system.
consequence in
As a press account ,issued at the time that the
,section 1614 regulations "were issued confirms, the EEOC had more
20
Even if investigations are"" conducted more rapidly, the
1614 regulations maintain the, practice of the agencies
investigating themselves, perpetuating a longstanding conflict of
interest and', leaving unaddressed the inadequacies of many
investigations that agencies conduct.
.;
,§
1i
�ambitious plans for these rules but they foundered at the Office of
Management and Budget. 21
patchwork
Between the constraints imposed by the
of statutes governing this
system
and the political
hurdles that regulatory changes must surmount, it is not surprising
that these new regulations leave the status quo largely intact.
III.
The Federal Employee Fairness Act
The profound and intractable defects afflicting the current
complaints adjudication process and the modest impact"of the new
EEOC regulations compel the conclusion that comprehensive reform of
this system is needed and it is needed now.
While some :r;-egulatory
improvements in the system have occurred, many of the problems with
the current system are rooted in a flawed structure that is created
by statute.
any
Accordingly, we believe that only legislation holds
promise of
ultimately remedying
the many defects
of this
system.
A list of these fundamental and persistent defects, which the
EEOC's new regulations fail to address,
confirms the need for
legislation.
1.
It is fundamentally unfair for agencies, against
which EEO claims are pending, to investigate an,d
adjudicate those claims themselves.
Therefore, it is
necessary
for
the
factualdev1elopment
and
the ..
adjudication of these claims to be conducted by some
other means.
2.
The investigations that the agencies have conducted·
have often created files that, although voluminous, omit
information that is critical to the full and fair
adjudication of 'the EEO - claims.
Therefore, i t · is
necessary to devise another way to develop the· facts with
21
See Priest, "EEOC Revises Bias, D:iJ;ability Rules," The
Washington Post (March 5, 1992).
12
�.
which the parties may present their positions at hearings
on the EEO claims.
3.
The time period within which complainants may
initiate the process for pursuing an EEO claim should be
expanded to permit reflection and an opportunity to look
into their suspicions of discrimination before any action
is taken. The EEOC regulations expand from 30 to 45 days
the time from the last discriminatory incident within
which complainants must contact an agency counselor to
begin pursuing a claim.
This time period must be
con~iderably expanded.
4.
Deadlines are needed within which the agency, the
EEOC, as well as the complainant must discharg~_their
respective
responsibilities
within
the
complaints
adjudication system.
The deadlines established by the
section 1614 regulations are a good start but fail to
create any real incentive for agency 60mpliance.
5.
Although the civil Rights, Act of 1991 clearly
provided for the award of compensatory damages to Title
VII' claimants
who
proved
that
their
employers
intentionally discriminated against them, the section
1614 regulations do not authorize Administrative Judges
to award such relief. ' Legislation would clarify that the
mandate of the Congress is reflected in that. Act,.
6. . Employees whose claims encompass both an EEO claim
and a challenge under the civil service rules, and who
,therefore present a "mixed case," are compelled to
proceed before another agency,
the Merit Systems
Protection Board, and., then may present their EEO claim to
the EEOC.
Where those agencies differ, the claim is
submitted to a special panel. This system is enormously
complex and time consuming and requires modification.
7.
Too often, employees who commit discrimination do so
with· impunity, retaining their employment and sometimes
reaping promotions instead of receiving punishment for
.illegal conduct.
Legislation is needed to ensure that
persons'~found
to have committed discrimination are
subject to appropria~e sanctions.
8.
There are several judicial interpretations given the
statutes and rules governing this system that have
warranted revision for years and which legislation must
address.
We endorse the Federal Employee Fairness Act because it offers
fundamental revisions to the current complaitts processing system
•
13
�and regard its app'roach as providin9 the best hope of transforming
this system into one that will fairly and promptly address·the
While there are many
federal sector claims of discrimination.
facets of this legislation that warrant it:s commendation, several
should be noted here.
First, we applaud the removal from the executive agencies of
the responsibility for investigating -and adjudicating complaints 'cif
discrimination. 22
For the ,first time since 1972, when" Title VII
.
r
coverage was extended to federal employees, the fox would no longer
guard the chicken COOPi the stain' from the conflict of interest
which inevitably' taints the complaints adjudication system would
finally be 'removed.
decisions,
rather
The Act would entru~t· authority to issue firial
thi:ln
simply'
recommendations,
to
the
much of
this
Administrative Judges of the EEOC. n
We
also
endorse the Act· s
consolidation
of
complaints adjudication process into one agency, the EEOC, which
operates
independently of the. other executive agencies against
which EEO claims are lodged. 24
In addition, we expect that this
centralization of the complaints adjudication process will yield
22
Since Title VII expressly en1trusts final action on
complaints of discrimination to the executive agencies, removal of
this. function from those agencies requir«~slegi~lation.
See 42
U.S.C. § 2000e-16 (c).
n
Of· course, either party should be entitled, and tne Act
provides for appeals from the judges' final decisions to the EEOC.
Of course,' the Act must afford employees of the EEOC with
.discrimination claims the ·opportunity, if they so choose, to have'
the factual development and adjudication oft!l'Ose claims conducted
by another agency.
,
24
.
14
'. ":.,.
...~
�other significant benefits.
these claims can, and will,
The
assignmen~
We expect that the staff handling
be regularly and properly
trained.~
of these functions to a single agency also should
increase the accountability for the operation of this system to the
Congress and the public.
create
economies
of
And, we are hopeful-that the Act will
scale
which
ensure 'that
the
complaints
adjudication system-can be fully and properly funded.
The General Accounting Office (GAO)
associated
with
complaints at 29
month,
GAO
counseling
and
processing
Federal agencies. 26
concluded
that
those
has computed" ..the costs
In a
agencies
of
report 'issued last
alone
million on this complaints adjudicat~on process. v
reforms of the existing system will
discrimination
expended
$139
Even modest
inevitably result in cost
savings that will more than offset any new
funds required to
implement the Act.
Second, we endorse the Act's creation of a new system by which
the facts relating to claims'of discrimination, and the defenses to
such claims,
are discovered and collected.-
Under the current
ru'les, the agencies conduct investigations of themselves, creating
~,
Toward that end, we endorse any enhancement in the grade
levels for Administrative Judges and other staff affiliated with
the federal complaints adjudication system that will ensure that
the EEOC can attract and retain'qualified staff.
26
There are about ,90 Federal agencies that the GAO has not
yet examined.
The total c6'st of _the complaints adjudication
process throughout the Federal, go:vernmeilt is undoubtedly, much
higher.
n
See GAO, Federal Workforce:
Agencies' Estimated Costs
-for Counseling and Processing Discriminatio~ Complaints (March,
1992).
•
15
�another conflict of interest that'the EEOC's section 1614 rules do
not eliminate.
The current process for conducting investigations
also suffers from another serious defect that the Act addresses.
Investigations often result in the compilation of files which,
although voluminous,
omit facts that in the preparation for the
hearing
or
the
parties
the
Administrat~ive
relevant and should have been collected.
the
investigations vary significantly;
Judge discover
are
Moreover, the quality of
some are conducted more
vigorously than others.
The Act, as we understand it, would transfer the principal
fact
gathering
to
the
parties under the sup~rvision of the Administrative Judge. 28
We
applaud
this
responsibility
approach
from
since
it
the
agencies
entrusts
alone
this
important
responsibility to the parties who have t:he greatest interest: in
seeing it conducted properly.
And, it permits the parties, with
involvement from the judge who will hear the claim, to define the
scope of the discovery and to identify the facts that are needed to
prove and rebut the claims.
We understand that, when a complainant is unrepresented, the
Act contemplates that the Administrative Judge will require that
28
We also believe, and the Act seems to recognize, that the
,agencies should continue to play an important role in the fact
finding process. The agencies are necessarily more familiar with
the documents created in connection with any challenged personnel
-action. It is, important, therefore, that the agencies continue to
have responsibility, for the collection of documents relevant to
proving, and rebutting, claims of discrimination. In addition, the
agencies should retain, and we read thl~ Act as providing, the
opportunity' for bri'ef investigation of 1:he 4illlegations that may
facilitate the conciliation of those claims.
,
.
16
�.
the
record
be
sufficiently
developed
and,
if
necessary,
will
identify the discovery needed by the complainant to ensure that a
full
and
fair
discovery
critical
o,f
to
hearing
facts
the
is
where
conducted.
the
process
provided
complainant
protection of
federal equal employment laws.
by' the
This
these
provision
is
rights
for
the
unrepresented
guaranteed
by
is
the
We are hopeful that the discovery
Act will
improve
the
quality
of
the
factfinding upon which the hearings must rely.
I
must
Third; the Act expands the time period within which claimants
initiate
the
complaint
process.
'. Under
current
rules,
claimants must initiate the process within 30 days of the last
incident
of
discrimination that
is
alleged. 29
The
regulations would extend that period to 45 days.3o
EEOC f S
new
Employees in
the private sector, however, are entitled to. a minimum of 180 days
within which to initiate the process available to them. 31
And,
even more closely related, the civil Rights Act of 1991 affords
employees of the U.S. Senate 180 days before they must initiate the
complaints adjudication process available to them.32
executive agencies should be accorded, and the Act
Employees of
provide~,
the
same time period of '180 days within: which t:o initiate the complaint
"
process. This additional time affords employees the opportunity to
deliberate, to consult legal counsel,and t:o informally investigate
29
30
31
32
See ~9 C.F.R.§ 1613.,214 ,(a) (l){i).
See 29 C.F.R. § 1614.105.
See 4.2 U.S.C. § 20003-5 (eli 29 U.S.C. § 626{d) •
.p
See Pub. L. No. 102-166, 1Q5 Stat. 1071, (Nov. '1991).
17
�the circumstances surrounding the incident tha:t they may challenge.
Fourth, deadlines are needed within 'Ylhich the agency and the
EEOC as well as .the complainant will be obligated to complete the
tasks
assigned to
them by the complaints adjudication
system.
'Here, the EEOC's new regulations make a significant contribution,
creating for the first time limitations applicable to the agencies
and to the' EEOC. 33 .
But, as we observed earlier
as long as' the
I
agencies retain final' decisionmaking authority I
they'''' remain at
liberty to reject any sanctions that an Administrative Judge might
impose for noncompliance with ,the time deadlines.
the
authority to
Judges,
render
final
decisions
to
By entrusting
the Administrative
as well as prescribing the consequences that would flow
.
.
'
from noncompliance with the deadlines, the Act would substantially
increase the likelihood that the deadlines would be honored.
Fifth,
the civil Rights Act of
employees 'of
opportunity
governments
to
recover
and
the
1991 expressly extends to
private
compensatory
discrimination prohibited by Title' VII
Disabilities
-Act.~
In
its
new
administrative
33
damages
f·or
alike
the
intentional
and the Americans' With
regulations,
the
EEOC
has
.
.
apparently' failed
sector
to permit the award of such damages, in the
process. 35
In
the
civil' Rights' Act
See 29 C.F.R. §§ 1614.105, .106, .108,
.109, .110.
See Pub. L. No. 102-66, 105'Stat. 1071, § 102 (a), (1)
,
"
19~1,
of
&
'
(2)
35
The EEOC's definition of remedies that comprise full
-relief does not include any reference to dam~es .. 29 C.F.R.
§.1614.501.
.
..
18
�Congress
failed' to
make . any distinction
between the
award
damages in the courts and in the administrative process.
such a distinction be wise.
the
administrative
of
Nor would
If damages cannot be awarded through
process,
this
deficiency
will
quickly
and
dramatically diminish the value and attractiveness of this process
to complainants.
The availability of damages in the courts will
create just the kind of incentive to proceed to that forum that
this Act
is designed to moderate.
The same
remedie'!S must be
This Act
available in the administrative and judicial forums.
should clarify Congress' intent to achieve such parity.
Sixth, the current system for handling mixed cases, by which
claims of discrimination are joined with challenges arising under
the
civil
service
Employees,
agency
rules,
employers,
is
hopelessly
and
the
complex
and
administrative
long.
agencies
involved in the mixed case procedure spend a great deal of time and
effort attempting to resolve often simple cases, with inconclusive
results.
The central idea of the mixed case procedure, that the
EEOC and Merit Systems Protection Board (MSPB) could both resolve
the same case, with each having parity with .the other, seems in
retrospect to have been doomed from the st:art.
This splitting of
jurisdiction. was rooted in uncertainty over how well the newly
created institutions would do their jobs, and a mistrust of the
ability of
EEOC and MSPB to decide matters
jurisdiction.
Fortunately,
these-' concerns
outside their own
have proven to
be
largely misplaced, and the track, records of these decision-making
entities provides a basis for employees to eVaAfuate the appropriate
,
19
�forum for a particular case.
To rectify the extraordinary delays and procedural confusion
which now characterizes the processing of mixed cases,
the Act
permits employees to choose the forum -- MSPB, EEOC, or grievance
arbitration -- in which they wish to proceed.
Rather than have
,several different agencies engage in separate and time-consuming
review of each other's decisions, the Act allows the chosen forum
., ......
to decide all of the issues -- civil service, discrimination, or
contractual -- presented to it in accordance with established case
law. 36
At
the
end
of
the
process,
employees
alleging
discrimination retain the right to de novo review of that claim.
The Act will resolve mixed cases far faster than under the old
system,
and allow for more consistency
in the adjudication of
discr{minationclaims.
Seventh, agencies are often reluctant: to punish employees who
are found by either an administrative or jUdicial forum to" have
committed
discrimination.
The
witnesses
who" testified, at
an
earlier hearing before these Subcomniittees confirmed a suspicion
which many have held that managers who cc::)mmit
rarely punished.
"Not surprisingly,
the
discrimination are
failure to discipline
~
proven discriminators breeds contempt, or at least disregard, for
the EEO laws.
commit
Managers are left with the impression that they can
discrimination
with' impunity
and ,the
employees
they
Of course, ,the EEOC will be obligated to defer to the
interpretations of civil service law construed by the MSPB, while
the MSPB will be obligated to defer to the in~rpretations of equal
employment laws given by the EEOC. t
36
20
�supervise become demoralized and reluctant to exercise their rights
under the equal employment laws on the belief that no improvements
will' ensue.
While
some
agencies
are
undoubtedly diligent
in
imposing penalties where the commission of discrimination has been
proved,
there are enough occasions when this does not occur to
warrant a change.
The Act would create a system by which employees who are found
in a final order, in either an administrative orjudicia:t forum, to
have committed discrimination wbuld
sanctions.
be subj ect
to
appropriate
Any such system, of course, must ensure that the proven
discriminators
ar~
afforded whatever process they may be due to
challenge the' sanctions that are imposed.
Whether or not the
precise approach set forth in the Act is the optimal approach, some
system is necessary to ensure that agencies are accountable for the
treatment
they
discrimination.
afford
. employees
found
to
have
committed
Since agencies typical iy deny the existence of
discrimination in their workforce, they.may be reluctant to punish
managers
I
later
found
administrative. or
agency.
agencies'
to
have
judicial
committed
proceeding
such
that
conduct
ruled
in
against
an
the
Accordingly i the Act should provide for a system by which
are
appropriate 'to
obligated
the
conduct committed.
nature
t o ' consider
and
.and
severity of
impose
punishment
the discriminatory
And, the Act should require that 'the agencies
be readily accountable for the decisions they render regarding such
sanctions and that such decisions will be scrutinized to ensure
. they are supported by the record.
21
�Eighth, the Act provides for a number of minor revisions to
th~
existing
complaints
adjudication
addresses an important shortcoming ...
system,
each
of
which
As an example, claimants who
fail within the time allowed to name the head of their agency as
the defendant in actions filed in the courts will have their case
dismissed. 37
Simple
lapses
committed
by
unwary
complainants,
particularly those unable to retain legal counsel, therefore lead
to draconian results.
The Act
should,
amendment. to this technical defect
as
and does ,pl:ovide for
it does
for other such
obstacles that have arisen in the interpretation and application of
the federal equal employment laws.
IV.
Conclusion
This year marks' the twentieth anniversary of the amendment of
Title VII that extended to federal employees the full protections
against employment discrimination.
The complaints adjudication
system, which was created with the noble ambition that it afford an
inexpensive, speedy and fair means of resolving EEO claims, has
fallen far shor.t of each of these goals.
We
.have the benefit of
an extensive record that documents the nature and extent of the
entrenched defects in this system.
And, we believe the Federal
Employee
first
Fairness
Act
offers
the
opportun~ty
for
the
37
This result occurs because Title VII provides that the
head of the . agency shall be named as the defendant 'in judicial
actions and requires that such actions ·be filed within 90 days of
final agency action.
42 U.S.C.- § 2000e-16 (c),. as amended by
the Civil Rights Act of 1991. The failure to name the agency head,
or otherwise put the agency head on notice of the action, within
th~ 90 day allotted period has been grounds for dismissal of the
action.
See,~, Johnson v.Burnley, 88'P F.2d 471. (4th.cir.
1989); Johnston v. Horne, 875 F.2d 1415 (9th Cir. 1989).
.
22
�fundamental reform of this
syst~m
that is so sorely needed.
We
urge these Subcommittees to revise the bill where it is needed and
report it for passage in this Congress.
We look forward to working
with you' in this important effort.
-.
.
23
',~
.
�
Dublin Core
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Stephen Warnath - Civil Rights Series
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Stephen Warnath
Civil Rights Series
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<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
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Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
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