[Federal Register Volume 77, Number 143 (Wednesday, July 25, 2012)]
[Rules and Regulations]
[Pages 43498-43506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18134]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN Number 3046-AA73
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is issuing this final rule to revise its regulations
for processing equal employment opportunity complaints by federal
sector employees and job applicants. The revisions implement those
recommendations of the Commission's Federal Sector Workgroup which
require regulatory changes. The revisions include: reaffirming the
existing statutory requirement that agencies comply with EEOC
regulations, Management Directives, and Bulletins; providing for EEOC
notices to non-compliant agencies; permitting pilot projects for EEO
complaint processing; requiring agencies to issue a notice of rights to
complainants when the investigation will not be timely completed;
requiring agencies to submit complaint files and appeals documents to
EEOC in digital formats; and making administrative judge decisions on
the merits of class complaints final with both parties having the right
to appeal to EEOC. The Commission is engaged in further review of the
Federal sector EEO complaint process in order to improve its quality
and efficiency. The current rulemaking constitutes the Commission's
initial step in that review. The Commission will consider additional
reforms, including, but not limited to, regulatory changes.
DATES: Effective September 24, 2012.
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, Kathleen Oram, Senior Attorney, or Gary Hozempa, Senior
Attorney, Office of Legal Counsel, 202-663-4640 (voice), 202-663-7026
(TTY). (These are not toll free numbers.) This notice is also available
in the following formats: Large print, braille, audio tape, and
electronic file on computer disk. Requests for this notice in an
alternative format should be made to EEOC's Publications Center at 1-
800-669-3362 (voice) or 1-800-800-3302 (TTY).
SUPPLEMENTARY INFORMATION:
Introduction
EEOC enforces the statutes that prohibit workplace discrimination
in the federal government. These statutes include: section 717 of Title
VII of the Civil Rights Act of 1964, which prohibits discrimination
against applicants and employees based on race, color, religion, sex,
and national origin; section 501 of the Rehabilitation Act of 1973,
which prohibits employment discrimination on the basis of disability;
section 15 of the Age Discrimination in Employment Act of 1967, which
prohibits employment discrimination on the basis of age; the Equal Pay
Act of 1963, which prohibits sex-based wage discrimination; and the
Genetic Information Nondiscrimination Act of 2008, which prohibits
employment discrimination on the basis of genetic information. EEOC is
responsible under these statutes for processing equal employment
opportunity (EEO) complaints by Federal employees and applicants.
The EEO complaint process is initiated when a federal employee or
job applicant contacts an EEO counselor to allege discrimination. If
the allegation is not resolved in counseling, the individual may file a
formal EEO complaint with the employing agency and that agency
investigates the complaint. At the conclusion of the investigation, the
complainant may request a hearing before an EEOC administrative judge
or a final decision by the agency. After the hearing or final decision,
the complainant may appeal to EEOC. Complainants also have the right to
sue the alleged discriminating agency in federal district court if they
are not satisfied with the administrative resolution of their
complaints.
In 2004, former EEOC Chair Cari M. Dominguez asked Commissioner
Stuart J. Ishimaru to lead a workgroup to develop consensus
recommendations from the Commissioners for improvements to the EEO
complaint process. The Federal Sector Workgroup considered testimony
and submissions from the November 12, 2002 Commission meeting on
federal sector reform, draft staff proposals for federal sector reform,
and numerous submissions from internal and external stakeholders with
suggestions for improvements to the federal sector process. The
Workgroup determined that it did not have internal consensus for large
scale revision of the federal sector EEO complaint process at the time,
but that there was agreement on several discrete changes to the
existing regulations that would clarify or build on the improvements
made by the last major revisions to 29 CFR Part 1614 in 1999. The EEOC
plans to accompany this final rule with the issuance of additional
guidance in Management Directive 110 and other program changes at EEOC.
This final rule is part of an ongoing review by the Commission of the
federal sector EEO complaint process in which the Commission is
examining recommendations regarding the investigative function,
including perceived conflicts of interest in the way investigations are
conducted and alternatives to the current investigation process, and
the hearings and appellate review process.
A notice of proposed rulemaking (NPRM) was circulated to all
agencies for comment pursuant to Executive Order 12067 and subsequently
published in the Federal Register on December 21, 2009. 74 FR 67839
(2009). The notice proposed changes to the Commission's federal sector
EEO complaint processing regulations at 29 CFR Part 1614 to implement
the recommendations of the Federal Sector Workgroup. It sought public
comment on those proposals.
The Commission received thirty-five public comments on the NPRM:
fourteen comments from federal agencies; five comments from civil
rights groups; five comments from unions and other groups; five
comments from attorneys; and six comments from individuals. The
Commission has carefully considered all of the comments and has made
several changes to the NPRM in response to the comments. The comments
on the NPRM and the changes made are discussed more fully below.
Agency Process
The Workgroup considered many recommendations for improvement to
[[Page 43499]]
the parts of the federal sector EEO complaint process for which the
agencies bear responsibility--counseling, investigations, and final
actions. The Workgroup made a number of non-regulatory and regulatory
recommendations to improve the agency process. This final rule contains
the following changes to the agency EEO complaint process in part 1614.
Compliance
The final rule adds two new paragraphs to Sec. 1614.102. One
paragraph, Sec. 1614.102(e), requires that agency EEO programs comply
with part 1614 and the Management Directives and Bulletins issued by
EEOC (hereinafter ``compliance proposal'') to carry out section 717 of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-
16, and indicates that the Commission will review programs for
compliance. The final rule further provides that, as part of EEOC's
compliance efforts, the Chair may issue notices to agencies when non-
compliance is found, and may publicly identify non-compliant agencies
(hereinafter ``program review proposal''). With these provisions, the
Commission intends to re-emphasize all agencies' obligations to comply
with EEOC's ``rules, regulations, orders, and instructions,'' as
required by section 717 of Title VII, 42 U.S.C 2000e-16(b), and to
provide some additional mechanisms for reviewing and seeking compliance
from agencies that fail to comply with the requirements of Part 1614,
Management Directive 110, Management Directive 715, and Management
Bulletin 100-1, or any Management Directives or Bulletins that may be
issued in the future to carry out section 717 of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C 2000e-16.
The majority of comments, including those submitted by several
agencies, supported both proposals, with more than a third of them
recommending that EEOC adopt stronger provisions, such as making
reports of non-compliance public and providing for sanctions against
non-complying agencies. A handful of agencies objected to the
compliance proposal, arguing that it is duplicative of Title VII's
requirement that agencies comply with EEOC guidance and instructions,
and that, if enacted, the compliance proposal will give regulatory
effect to EEOC Management Directives and Bulletins without notice and
comment, in violation of the Administrative Procedure Act (APA). With
respect to the program review proposal, several agencies requested that
the regulation specifically provide for agency opportunity to comply or
provide an explanation for non-compliance before EEOC issues a notice
of non-compliance.
EEOC has slightly modified the proposed language of the NPRM to
remove a reference to the Chair identifying non-compliant agencies in
the Annual Report on the Federal Workforce, and has replaced it with a
more general provision stating that, if the Office of Federal
Operation's (OFO) attempts at compliance are not successful, the Chair
may publicly identify non-compliant agencies. The compliance proposal
derives from section 717(b) of Title VII, 42 U.S.C. 2000e-16(b), which
requires an agency to comply with EEOC rules and directives pertaining
to federal sector EEO programs (``the Equal Employment Opportunity
Commission shall have authority to enforce the provisions of subsection
(a) of this paragraph through appropriate remedies * * * and shall
issue such rules, regulations, orders and instructions as it deems
necessary and appropriate to carry out its responsibilities under this
section * * *. The head of each such department, agency, or unit shall
comply with such rules, regulations, orders, and instructions * * *).''
Similarly, Executive Order 12067 authorizes EEOC to develop rules,
policies, and guidelines to administer the federal sector EEO program
and requires agencies to comply with those directives. While the
compliance proposal, as some agencies noted, reiterates the authority
given to EEOC under Title VII, it has been EEOC's experience that not
all agencies understand that they are required to comply not only with
the rules set forth in 29 CFR part 1614, but also with the compulsory
instructions in EEOC's Directives and Bulletins, such as MD-110.
Therefore, the compliance proposal is necessary to underscore both
EEOC's authority over the federal sector EEO program and an agency's
duty to maintain its EEO program consistent with EEOC's mandatory
directives.
Agency concerns that the compliance proposal will deny them an
opportunity to comment upon orders and procedures that EEOC may issue
in the future are misplaced. Under Executive Order 12067, before EEOC
issues a new rule, directive, or bulletin about the federal sector EEO
program, it must first afford each federal agency an opportunity to
comment, advise and consult. As a result, any new rule, directive, or
bulletin contemplated by EEOC will go through this interagency
coordination process and therefore no EEOC rule, directive, or
bulletin, will be issued without agency notice and comment.
With respect to those agency objections that specifically rely on
the APA, the National Employment Lawyers Association (NELA), in its
comments, argues that ``the relationship between the EEOC and federal
agencies is not governed by the APA, which allows a challenge to agency
action only by a `person suffering legal wrong.' '' See 5 U.S.C. 702.
Under the APA, a ``person'' includes entities ``other than agencies.''
5 U.S.C. 551(2). Therefore, NELA argues, an agency is not an entity
afforded the protection an individual enjoys under the APA. Even
assuming that an agency lacks standing under the APA to complain about
APA protections, EO 12067 provides agencies the notice and comment
protections about which the agencies expressed concerns in their
comments. As noted above, agencies will have the opportunity to review
and comment upon future EEOC rules, directives, and bulletins before
they are issued.
EEOC's intent is to assist agencies in perfecting their EEO
programs and to persuade agencies whose EEO programs fall short of EEOC
standards to correct any noted deficiencies. There will not be a single
process for determining non-compliance. Each situation will depend upon
the nature of the alleged non-compliance, how the non-compliance comes
to EEOC's attention, and how the agency responds to EEOC's inquiries
and attempts to obtain compliance. Therefore, it is not feasible to
explain how EEOC will determine in every instance whether an agency is
in compliance with 29 CFR part 1614 or the mandatory language in EEOC's
Directives and Bulletins. In all instances, however, before the Chair
issues an agency a notice of non-compliance, the agency will be given a
reasonable opportunity to justify its non-compliance or persuade EEOC
that it is in compliance with EEOC's regulation or the mandatory
sections of EEOC's Directives and Bulletins. As appropriate, EEOC may
also make the Chair's notice of non-compliance public. The program
review procedures will be set out in MD-110.
Pilot Projects
The second new paragraph in Sec. 1614.102 permits EEOC to grant
agencies variances from particular provisions of part 1614 to conduct
pilot projects for processing complaints in ways other than those
prescribed in part 1614. The NPRM provided that pilots would be subject
to EEOC approval by vote of the Commissioners and that approval would
usually not be granted
[[Page 43500]]
for more than 12 months. The Commission supports pilot projects because
they can provide helpful data for future recommendations regarding
changes to the federal sector EEO complaint process.
All of the agencies and several other commenters supported the
pilot projects proposal. In the NPRM, the Commission specifically
requested comments on the proposed 12 month maximum timeframe for pilot
projects. Comments on the appropriate timeframe for pilot projects were
mixed, with some noting that a year is sufficient, and others arguing
that a two year timeframe would be preferable. The majority of
commenters on the timeframe recommended that EEOC permit extensions of
whatever timeframe is adopted. In addition, several comments suggested
that agencies be permitted to keep pilot projects in place until all
complaints that have entered the pilot project are fully processed.
About a third of the commenters expressed concerns about the pilot
project proposal. Some recommended that pilot projects be limited to
the investigative stage only. Some suggested that pilot projects should
be entirely voluntary with an opt-out feature. Others recommended that
EEOC include in the regulation criteria that will ensure the protection
of complainants' rights in pilot projects. Finally, some commenters
noted that federal employee unions should be involved in the
development of agency pilot projects.
We have amended Sec. 1614.102(f) to extend the maximum timeframe
for variances from the requirements of part 1614 for pilot projects to
24 months. We believe that the proposed 12 month maximum timeframe was
too short for some pilot projects to provide meaningful data for
analysis of alternatives to the part 1614 process. We note, however,
that the timeframe is a maximum only, not a minimum, and that agencies
may develop pilot projects that last less than 24 months as
appropriate. We have also added a provision giving the Director of the
Office of Federal Operations authority to grant, for good cause shown,
requests for extensions of variances for up to 12 months. We note as
well that the 24 month maximum timeframe for pilot projects will permit
agencies to accept complaints into pilot projects for up to 24 months,
and that agencies may conclude processing those complaints in the pilot
project for a reasonable period thereafter.
We have also added a sentence to the regulation stating that pilot
projects must require that complainants knowingly and voluntarily opt-
in to the pilot project. It was always the Commission's intention that
complainants must affirmatively choose to participate in pilot
projects, and that, if they do not opt-in, their complaints would be
processed under the part 1614 process. We note that the Commission
plans to issue guidance in its Management Directive 110 on additional
criteria that the Commission will consider for pilot projects, e.g.,
requirements that such projects are not a subterfuge for diminishing
complainants' rights, that plans for publicizing the pilot among agency
employees should be detailed, that criteria for evaluating the success
of the pilot should be adequate, that interim evaluations will be done,
that the proposed length of the pilot is justified, and that
anticipated start and end dates are reasonable. Guidance will also be
included on the timeframes for pilot projects and requests for
extensions. Agencies may need to consult or negotiate with their unions
about pilot project proposals and, if that is the case, they must do so
before submitting proposals to EEOC for approval.
The Commission believes that it is preferable that EEOC provide
oversight of pilot projects rather than having agencies secure
independent authority to operate pilot projects that deviate from the
requirements of part 1614, as has occurred in the past. Commission
approval of pilot projects will ensure that agency management does not
have unfettered discretion and that pilots will not disadvantage
complainants.
Notice of Rights
The final rule adds a new paragraph to Sec. 1614.108 Investigation
of complaints, that requires agencies that have not completed an
investigation within the 180-day time limit for investigations (or up
to 360 days if the complaint has been amended) to send a notice to the
complainant indicating that the investigation is not complete,
providing the date by which it will be completed, and explaining that
the complainant has the right to request a hearing or file a lawsuit.
The majority of agencies that commented opposed the notice
proposal, arguing variously that it is unnecessary, duplicative, and
would not add value to the complaint process. A few agencies, however,
agreed with the proposal. All other commenters supported the notice
proposal, with half of them recommending that it should include
stronger provisions, including sanctions against agencies that fail to
complete an investigation in 180 days.
The Commission is retaining the notice requirement in the final
rule. The Commission believes that it is important that agencies issue
a notice to complainants about their rights in the EEO process at the
conclusion of the 180-day investigation period so that they can make
informed decisions about whether to wait for completion of the
investigation, request an immediate hearing, or file a lawsuit. In
addition, the Commission believes that requiring such a notice may
shorten delays in agency investigations by providing an incentive for
agencies to timely complete their investigations. The notice must be in
writing, must describe the hearing process and include a simple
explanation of discovery and burdens of proof, and must contain an
estimated investigation completion date. The Commission further notes
that a full range of sanctions are available should an agency not
complete its investigation within the required time period. See, Royal
v. Dept. of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25,
2009); Reading v. Dept. of Veterans Affairs, EEOC Appeal No. 07A40125
(October 12, 2006); Talahongva-Adams v. Dept. of the Interior, EEOC
Appeal No. 0120081694 (May 28, 2010). Nor does a complainant waive his
right to seek sanctions when an agency fails to complete its
investigation within the required timeframe simply because a notice is
issued by the agency. Sanctions may be warranted even if the
complainant elects not to request a hearing but instead waits for the
completion of the investigation, unless a specific extension of time
has been sought from, and granted by, the complainant, or for other
good cause shown.
Rehabilitation Act Coverage
In the NPRM, the Commission proposed to amend Sec. 1614.103(b)(6)
to comport with the coverage provisions of the Rehabilitation Act and
state that part 1614 applies to EEO complaints against the Government
Printing Office, except for complaints under the Rehabilitation Act. We
received only two comments on the proposal, both favorable. The final
rule contains this revision.
Retaliation
EEOC proposed in the NPRM to amend Sec. 1614.107(a)(5) to clarify
that complaints alleging discrimination in proposals to take personnel
actions or other preliminary steps to taking personnel actions should
be dismissed unless the complaint alleges that the proposal or
preliminary step is retaliatory. After explaining its rationale for
this change, EEOC also discussed
[[Page 43501]]
alternative language that had been suggested by an agency during the
E.O. 12067 interagency coordination. The alternative language provided
that complaints alleging discrimination regarding a proposal to take a
personnel action, or other preliminary step to taking a personnel
action, shall be dismissed ``except that with regard to a claim of
retaliation, allegations of severe or repeated threats of adverse
action may state a claim of a hostile work environment that is not
subject to dismissal on such basis.''
The majority of comments supported EEOC's proposal. Non-agency
comments were overwhelmingly supportive, and a handful of them
specifically rejected the alternative discussed in the preamble. The
Leadership Conference on Civil and Human Rights (LCCHR), for example,
argued that the alternative has no basis in law and that there is no
plausible rationale for requiring a different standard for federal
employees. Agency comments were mixed, with some supporting EEOC's
proposal, several supporting the alternative, and others simply
criticizing EEOC's proposal without mentioning the alternative. The
agencies opposing EEOC's proposal generally argued that the change
would encourage premature complaints.
EEOC agrees with the comments favoring its proposed change and has
retained it in the final rule. The change to Sec. 1614.107(a)(5) is
consistent with EEOC policy guidance on retaliation as applied in the
private sector. See 2 EEOC Compliance Manual Sec. 8-II.D.3 (1998)
(``[A]ny adverse treatment that is based on a retaliatory motive and is
reasonably likely to deter the charging party or others from engaging
in protected activity'' is prohibited retaliation). Moreover, the
amendment codifies EEOC appellate decision precedent in the federal
sector. See, e.g., Lorina D. Goodwin v. F. Whitten Peters, Secretary,
Department of the Air Force, EEOC Appeal Nos. 01991301 & 01A01796, 2000
WL 1616337 (October 18, 2000) (holding that the complainant's challenge
of a proposed dismissal as being retaliatory stated a claim because
``proposed actions can be considered adverse actions in the reprisal
context if they are reasonably likely to deter protected activity'').
A number of commenters, such as the National Treasury Employees
Union (NTEU), point out that it is possible that a supervisor might
place an employee on a performance improvement plan or propose an
adverse action against an employee with the intent of deterring that
employee from filing or proceeding with an EEO complaint. And it is not
difficult to imagine that the employee could be deterred. A proposed
personnel action is not an empty gesture which an employee can ignore
without fear of consequences. For example, when a manager proposes a
removal for purported performance deficiencies, any employee not
wanting to be fired 30 days later must answer the proposal and attempt
to refute the agency's allegations of specific performance
deficiencies. See generally 5 CFR 432.105. Defending against a proposal
can be a daunting task, even if the allegations are untrue. Knowing
this, an unscrupulous manager who has been accused of employment
discrimination could initiate a trumped-up proposed removal in order to
cause the employee to drop the complaint and avoid termination. If this
occurs, the manager would have engaged in prohibited retaliation under
EEOC guidance and precedent, and under the Supreme Court's holding in
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68
(2006) (Title VII's anti-retaliation provision protects individuals
from a retaliatory action that a reasonable person would have found
``materially adverse,'' which in the retaliation context means that the
action might have deterred a reasonable person from opposing
discrimination or participating in the EEO complaint process).
Therefore, EEOC believes it is vitally important that an employee be
able to challenge as retaliatory a preliminary step to a personnel
action or a proposed action that is reasonably likely to deter that
employee from engaging in protected activity.
This revision to the dismissal provision does not change the
standard for stating a claim of retaliation under Title VII. Agencies
should dismiss retaliation complaints filed by complainants who have
not engaged in prior EEO activity or opposed unlawful employment
practices. Also, while agencies would no longer be able to dismiss a
claim alleging that a proposal or preliminary step was retaliatory
under 29 CFR 1614.107(a)(5), they would still evaluate the claim under
the failure to state a claim dismissal provision in 29 CFR
1614.107(a)(1). Agencies should dismiss complaints of allegedly
retaliatory proposals and other preliminary steps under 29 CFR
1614.107(a)(1) if the alleged retaliatory actions are not materially
adverse: that is, if the alleged retaliatory proposal or preliminary
step would not dissuade a reasonable worker in the complainant's
circumstances from engaging in protected EEO activity.\1\
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\1\ Additionally, under 29 CFR 1614.105(a)(1), an aggrieved
person is required to contact a counselor within 45 days of the date
of the alleged discriminatory action unless that time period is
extended pursuant to 29 CFR 1614.105(a)(2). Failure to contact a
counselor within 45 days may result in dismissal under 29 CFR
1614.107(a)(2). An aggrieved person who wants to challenge a
proposed or preliminary action, whether alone or in conjunction with
a final action, should be mindful of the applicable time limits. In
order to ensure that a retaliation claim based on a proposal or
preliminary step will not be dismissed as untimely, the aggrieved
person should contact a counselor within 45 days of that preliminary
step or proposal.
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Not all preliminary steps or proposals are materially adverse. As
noted in Burlington Northern, ``[a]n employee's decision to report
discriminatory behavior cannot immunize that employee from those petty
slights or minor annoyances that often take place at work and that all
employees experience.'' 548 U.S. at 68; see also 2 EEOC Compliance
Manual section 8-II.D.3 (1998) (``[P]etty slights and trivial
annoyances are not actionable, as they are not likely to deter
protected activity.''). Therefore, the challenged preliminary step or
proposed action must be likely to deter a reasonable employee from
protected activity. Given all the circumstances, a threatened letter of
warning may not deter a reasonable complainant from filing a complaint,
whereas a proposed suspension may have a deterring effect. ``Context
matters * * * for an `act that would be immaterial in some situations
is material in others.' '' Burlington Northern, 548 U.S. at 69 (quoting
Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 661 (7th Cir.
2005)).
The alternative language discussed in the preamble of the NPRM
regarding 29 CFR 1614.107(a)(5) limits actionable complaints alleging
that a proposal or preliminary step is retaliatory to those containing
allegations of ``severe or repeated threats of adverse action'' that
``state a claim of a hostile work environment.'' The commenters opposed
to the alternative, such as NTEU, Leadership Conference on Civil and
Human Rights, and the NAACP Legal Defense & Educational Fund (LDEF),
were concerned that the burden of proof necessary to establish a
hostile work environment is greater than that necessary to show that a
reasonable employee has been deterred from engaging in protected
activity, especially in the context of threatened actions. These
commenters noted that, under the alternative language, retaliation
involving only a single or a few threats would not rise to the
pervasive level necessary to establish a hostile environment and thus
would be permitted unless the actions are sufficiently severe. They
expressed concern that only a threat pertaining to
[[Page 43502]]
an ultimate employment action, such as a removal, would suffice to
establish severity under the alternative standard and thus state an
actionable claim for retaliation. Under EEOC's proposal, on the other
hand, the inquiry focuses more on the context in which the threat is
made and the effect that threat would have on a reasonable employee. It
is highly unlikely that a threat to transfer an employee's assigned
duties without loss of pay or position, as occurred in Burlington
Northern, would rise to the requisite level of pervasiveness or
severity under the alternative approach, but it could reasonably deter
protected activity and thus state a claim under EEOC's proposal.
The Commission believes the concerns expressed in the comments
about the alternative proposal are well founded. Burlington Northern
states that the anti-retaliation provisions of Title VII do not mirror
the anti-discrimination provisions and that this difference must be
given weight when interpreting the statute. 548 U.S. 53, at 62-63. As
discussed in Martinelli v. Penn Millers Ins. Co., 269 Fed.Appx. 226,
230, 2008 WL 723973 (3d Cir. March 18, 2008), after Burlington
Northern, an employee claiming ``retaliation by workplace harassment''
is ``no longer required to show that the harassment was severe or
pervasive * * *.'' See also Thomas v. Atmos Energy Corp., 223 Fed.Appx.
369, 376 n.2, 2007 WL 866709 (5th Cir. March 21, 2007) (``Burlington
Northern set a lower threshold for finding an adverse employment
action'' and thus the employee need not show that he was retaliated
against with respect to an ``ultimate employment action'' such as a
removal). As noted by the LDEF, the alternative language ignores this
distinction between the anti-retaliation and anti-discrimination
provisions and therefore would require a higher threshold both to state
a claim and to prevail on claims of retaliation. Additionally, the
alternative does not account for threats or actions not related to the
workplace, which also is inconsistent with the Court's ruling in
Burlington Northern. 548 U.S. 53, at 63.
Adopting the alternative language would impose a higher threshold
upon federal employees than exists for employees in the private sector
and would therefore permit a federal agency to take actions against its
employees that would be retaliatory if committed by a private employer.
It also would depart from EEOC's own federal sector precedent regarding
retaliation and threatened actions. In short, there is no legitimate
reason for requiring that only federal employees be subject to the more
stringent ``severe or pervasive'' standard applicable to hostile work
environment claims. The alternative approach would make it harder for
federal employees to prove retaliation than their private-sector
counterparts and would result in significantly less enforcement of the
anti-retaliation protections afforded federal employees.
EEOC Process
Electronic Filing
In the NPRM, the Commission proposed to require that agencies
submit appellate records and complaint files to the Commission
electronically. The NPRM provided that complainants would be
encouraged, but not required, to submit appeals and other documentation
electronically. The majority of commenters expressed concerns about the
electronic filing proposal. The agencies noted that they are concerned
about confidentiality of the records and the security of whatever
system EEOC employs, noting that all documents would have to be
encrypted. They also expressed concerns about costs and the need to
budget for the requirement. A handful of other commenters supported the
proposal, while others noted that EEOC needs to study security
measures, and that the Commission should ensure that there is no
adverse impact on complainants who continue to submit paper documents.
Several commenters suggested that EEOC model its electronic filing
system on the system used by the Merit Systems Protection Board, which
permits electronic filing after a party has registered, but does not
require it.
We wish to reassure agencies and the public that EEOC will comply
with all federal electronic information security requirements with
respect to accepting digital records. EEOC has launched a pilot Web
site portal electronic filing system that is available to all agencies.
In addition, EEOC currently accepts digital complaint files from a
number of agencies. Some agencies place scanned files in a secure
location on their own Web sites that EEOC accesses with a password.
Other agencies submit password-protected CDs containing digital
complaint files to EEOC. We have revised the regulation to require the
submission of digital records rather than electronic filing. This will
allow agencies and others to use the EEOC's portal (when available) or
any of the other means described above to submit digital appeals,
complaint files, and other filings. The final rule requires that
agencies submit these records in an acceptable format to the Office of
Federal Operations, absent a showing of good cause why the agency
cannot do so. We do not anticipate that cost will constitute good cause
in most cases since the cost of scanning equipment is relatively
inexpensive and the staff time required to scan documents will probably
be the same or less than the staff time required to make paper
photocopies of documents. Complainants will be encouraged, but not
required, to submit digital appellate records to the Office of Federal
Operations. EEOC will provide more detailed guidance regarding
acceptable digital formats and what constitutes a showing of good cause
in Management Directive 110.
Filing Date for Opposition Briefs
In the NPRM, the Commission proposed to revise Sec. 1614.403(f) to
require that briefs in opposition to appeals be submitted to the
Commission and served on the opposing party within 35 days of service
of the statement or brief supporting the appeal (as opposed to the
existing requirement that they be filed within 30 days of receipt of
the statement or brief supporting the appeal.) We requested additional
comments on irradiation-based mail delay experience. Nearly all of the
agencies that commented reported that they often have significant
delays in receiving mail because of the irradiation process. They noted
that delays can range from ten days to three or four weeks. If the
deadline for filing opposition briefs is tied to service, rather than
receipt, of the supporting brief, agencies experiencing irradiation
mail delays will have fewer days to prepare and submit opposition
briefs. Because of the frequency and length of irradiation delays, the
Commission can anticipate many motions for extension or apparently
untimely briefs with consequent increase in the number of motions for
default, which would unnecessarily burden the parties and Commission
staff. Accordingly, we have removed the proposed amendment from this
final rule, and the current regulation providing that statements or
briefs in opposition must be filed within 30 days of receipt of the
statement or brief supporting the appeal will remain in effect.
Reconsideration
The final rule amends Sec. 1614.405(b) (redesignated as Sec.
1614.405(c)) to provide that decisions under the section are final for
purposes of filing a civil action in federal court, unless a timely
request for reconsideration is filed by a party to the case. We
received only two comments on this proposal, both favorable.
[[Page 43503]]
Breach
In the NPRM, the Commission proposed to revise Sec. 1614.504(c) to
differentiate the remedies available for breach of settlement
agreements and breach of final decisions. We received only a handful of
comments on the proposal; most were positive. The final rule retains
the provision. For breach of a settlement, the regulation continues to
state that the Commission may order compliance or reinstatement of the
complaint for further processing from the point processing ceased,
whereas for breach of a final decision, the regulation states that
compliance is the only remedy. The Commission is making final its
proposed editorial changes to Sec. Sec. 1614.402, 1614.405(a), and
1614.409 to correct errors and omissions.
Class Complaints
The Workgroup carefully considered the class complaint process and
made a number of recommendations to improve its effectiveness. As a
result of those recommendations, in the NPRM the Commission proposed to
revise the class complaint regulations to make an administrative
judge's decision on the merits of a class complaint a final decision,
which the agency can fully implement or appeal in its final action.
Currently, the administrative judge issues final decisions on the
acceptance of class complaints, and the merits of individual
complaints, but only issues recommended findings and conclusions on the
merits of class complaints, which the agency may accept, reject, or
modify in its final decision. Previously, in a 1999 rulemaking, the
Commission changed the administrative judge's recommended decisions on
the merits of individual complaints and on the acceptance of class
complaints to final decisions that must be fully implemented or
appealed by the agency in its final action. With the current change,
all administrative judge decisions will be final decisions which the
agency can either implement in full or appeal. If the agency does not
fully implement the administrative judge's decision, it only has to
appeal the parts of the decision that it wishes to contest. For
example, if an administrative judge finds that the agency discriminated
against the class and awards reinstatement and backpay, and if the
agency disagrees with the award of reinstatement, the agency's appeal
need only challenge the reinstatement award.
The Commission also proposed in the NPRM to provide for expedited
processing of appeals of decisions to accept or dismiss class
complaints (certification decisions) to shorten the class certification
process. Specifically, the Commission proposed to amend Sec. 1614.405
to provide that decisions on appeals of decisions to accept or dismiss
class complaints will be issued within 90 days of receipt of the
appeal. We received uniform comments supporting both class complaint
process proposals. Therefore, the final rule retains both provisions.
We note that, with respect to the class proposals, several
commenters recommended additional changes to the class complaint
process involving issues such as: Holding individual complaints in
abeyance and subsuming individual complaints, permitting complainants
to opt-out of a class complaint, changing the requirement that agencies
notify class members of certification before appeal, mandating pre-
certification discovery, and ensuring that certified cases are promptly
assigned and processed. While these other comments fall outside of the
scope of the changes proposed in the NPRM, the Commission will consider
them for a future rulemaking. In addition, some of the recommendations
for additional changes not proposed in the NPRM are not regulatory, and
the Commission will separately consider whether any of them should be
implemented independently from the final rule.
Other Changes
The final rule amends Sec. 1614.109(g) to rename the section
``Summary Judgment'' instead of ``Decision without a hearing.'' This
change is intended to convey more clearly the Commission's policy that
the standards of Rule 56 of the Federal Rules of Civil Procedure
governing summary judgments apply in the EEOC hearings process, except
insofar as Commission decision precedent has held or holds otherwise.
This change is not intended, however, to alter existing Commission
policy or practice; Commission decisions on the summary judgment
process will continue to apply.
The final rule includes an editorial change to Sec. 1614.204(f)(1)
to correct the omission of the word ``shall.''
The final rule also amends Sec. 1614.302(c)(2) to correct an
erroneous cross reference. The section now refers to Sec.
1614.107(a)(4).
Finally, the Commission proposed in the NPRM to revise Sec.
1614.502(c) to change the time frame within which agencies must provide
the relief ordered from 60 days to 120 days. The regulation currently
requires an agency to pay an administrative complainant who prevails
before the EEOC within 60 days of EEOC's final decision. Since 1991,
however, complainants have had up to 90 days to file suit in United
States district court if they are dissatisfied with EEOC's decision.
Public comments were mixed on this proposal. While a couple of
agencies supported it, individual commenters strongly opposed it,
recommending that relief be provided immediately, and that remedial
orders should be binding regardless of whether suit is filed. Other
commenters suggested that EEOC should allow complainants to certify
that they will not file suit, and then require agencies to provide
relief within 30 or 60 days of certification. The Commission is
sympathetic to the commenters' concerns about receiving relief in a
timely fashion, but also recognizes that it is difficult in many
instances for agencies to provide relief within the current 60 day
timeframe. More importantly, the Commission believes that agencies
should not be required to provide relief before the expiration of the
complainants' 90-day right to file suit period. In the final rule, the
Commission is adopting the proposal to extend the timeframe for
providing relief to 120 days.
Regulatory Procedures
Executive Orders 13563 and 12866
This final rule has been drafted and reviewed in accordance with
Executive Order (``E.O.'') 12866, ``Regulatory Planning and Review,''
as recently reaffirmed and supplemented by E.O. 13563, ``Improving
Regulation and Regulatory Review.'' This final rule is a ``significant
regulatory action'' under E.O. 12866, section 3(f)(1), and accordingly
was submitted to the Office of Management and Budget for interagency
review. In promulgating this final rule, the Commission has adhered to
the regulatory philosophy and applicable principles set forth in E.O.
13563, which directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its cost
(recognizing that some benefits and costs are difficult to quantify);
tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives; and select, in
choosing among alternative regulatory approaches, those approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; distributive impacts;
and equity).
Based on the information currently available, we anticipate that
most of the changes involve no or negligible cost and will benefit the
agencies or users of the process by clarifying obligations,
[[Page 43504]]
correcting cross references, providing earlier appellate review, and
providing quicker decisions from EEOC. Most agencies, for example,
already comply with Part 1614 and EEOC's Management Directives and
Bulletins, as required by section 717(b) of Title VII of the Civil
Rights Act of 1964, as amended. Therefore, continued compliance will
not require additional expenditures. The compliance proposal may
actually reduce costs, e.g., to the extent that the agency's compliance
obligation is clarified, it may save the agencies, complainants, and
EEOC the time and costs of attempting to secure agency compliance.
With respect to monitoring compliance, EEOC already engages in
compliance activities with its Directives and Bulletins. Therefore, no
new personnel will need to be hired and EEOC's compliance efforts will
not have to be increased. The only new provision is that the EEOC Chair
may issue a notice of non-compliance that may be made public. The
clarification of an agency's compliance responsibilities and the
possibility of a public notice will eliminate some non-compliance and
shorten other instances of non-compliance.
The cost that comes with most of the remaining changes is
relatively small, and all costs are justified by the expected benefit
and would only be borne by the federal government. Requiring an agency
to notify the complainant when it will not complete an investigation in
the required timeframe will have minimal cost but will provide an
incentive for completing investigations timely while protecting the
complainant's rights. Electronic filing will reduce costs and time. The
cost of pilot projects will depend upon what the individual agency
proposes and is likely to be a savings; the benefit of such projects is
that potential changes to the process will be tested before they are
implemented government-wide.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. Sec. 605(b), enacted by the
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not
have a significant economic impact on a substantial number of small
entities, because it applies exclusively to employees and agencies of
the federal government. For this reason, a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Paperwork Reduction Act
This regulation contains no information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the Commission.
Dated: July 18, 2012.
Jacqueline A. Berrien,
Chair.
Accordingly, for the reasons set forth in the preamble, the Equal
Employment Opportunity Commission hereby amends chapter XIV of title 29
of the Code of Federal Regulations as follows:
PART 1614--[AMENDED]
0
1. The authority citation for part 1614 continues to read as follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3
CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1969 Comp., p. 133;
E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3
CFR, 1978 Comp., p. 321.
0
2. In Sec. 1614.102, add paragraphs (e) and (f) to read as follows:
Sec. 1614.102 Agency program.
* * * * *
(e) Agency programs shall comply with this Part and the Management
Directives and Bulletins that the Commission issues. The Commission
will review agency programs from time to time to ascertain whether they
are in compliance. If an agency program is found not to be in
compliance, efforts shall be undertaken to obtain compliance. If those
efforts are not successful, the Chair may issue a notice to the head of
any federal agency whose programs are not in compliance and publicly
identify each non-compliant agency.
(f) Unless prohibited by law or executive order, the Commission, in
its discretion and for good cause shown, may grant agencies prospective
variances from the complaint processing procedures prescribed in this
Part. Variances will permit agencies to conduct pilot projects of
proposed changes to the complaint processing requirements of this Part
that may later be made permanent through regulatory change. Agencies
requesting variances must identify the specific section(s) of this Part
from which they wish to deviate and exactly what they propose to do
instead, explain the expected benefit and expected effect on the
process of the proposed pilot project, indicate the proposed duration
of the pilot project, and discuss the method by which they intend to
evaluate the success of the pilot project. Variances will not be
granted for individual cases and will usually not be granted for more
than 24 months. The Director of the Office of Federal Operations for
good cause shown may grant requests for extensions of variances for up
to an additional 12 months. Pilot projects must require that
participants knowingly and voluntarily opt-in to the pilot project.
Requests for variances should be addressed to the Director, Office of
Federal Operations.
0
3. In Sec. 1614.103, revise paragraph (b)(6) to read as follows:
Sec. 1614.103 Complaints of discrimination covered by this part.
* * * * *
(b) * * *
(6) The Government Printing Office except for complaints under the
Rehabilitation Act; and
* * * * *
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4. In Sec. 1614.107, revise paragraph (a)(5) to read as follows:
Sec. 1614.107 Dismissals of complaints.
(a) * * *
(5) That is moot or alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory, unless the complaint alleges that the proposal or
preliminary step is retaliatory;
* * * * *
[[Page 43505]]
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5. Amend Sec. 1614.108 by redesignating paragraph (g) as paragraph
(h), and adding a new paragraph (g) to read as follows:
Sec. 1614.108 Investigation of complaints.
* * * * *
(g) If the agency does not send the notice required in paragraph
(f) of this section within the applicable time limits, it shall, within
those same time limits, issue a written notice to the complainant
informing the complainant that it has been unable to complete its
investigation within the time limits required by Sec. 1614.108(f) and
estimating a date by which the investigation will be completed.
Further, the notice must explain that if the complainant does not want
to wait until the agency completes the investigation, he or she may
request a hearing in accordance with paragraph (h) of this section, or
file a civil action in an appropriate United States District Court in
accordance with Sec. 1614.407(b). Such notice shall contain
information about the hearing procedures.
* * * * *
Sec. 1614.109 [Amended]
0
6. In Sec. 1614.109, revise the paragraph (g) subject heading to read
``Summary Judgment''.
0
7. Amend Sec. 1614.204:
0
a. In paragraph (f)(1), by removing the words ``administrative judge
notify'' from the first sentence and adding in their place the words
``administrative judge shall notify'';
0
b. By revising paragraphs (i), (j), and (k);
0
c. In paragraph (l)(2), by removing the words ``final decision'' and
adding in their place the words ``final order'';
0
d. In paragraph (l)(3), by removing the words ``final decision'' in the
first and next to last sentences and adding in their place the words
``final order'' and
0
e. By revising the third sentence in paragraph (l)(3).
The revisions read as follows:
Sec. 1614.204 Class complaints.
* * * * *
(i) Decisions: The administrative judge shall transmit to the
agency and class agent a decision on the complaint, including findings,
systemic relief for the class and any individual relief, where
appropriate, with regard to the personnel action or matter that gave
rise to the complaint. If the administrative judge finds no class
relief appropriate, he or she shall determine if a finding of
individual discrimination is warranted and, if so, shall order
appropriate relief.
(j) Agency final action. (1) Within 60 days of receipt of the
administrative judge's decision on the complaint, the agency shall take
final action by issuing a final order. The final order shall notify the
class agent whether or not the agency will fully implement the decision
of the administrative judge and shall contain notice of the class
agent's right to appeal to the Equal Employment Opportunity Commission,
the right to file a civil action in federal district court, the name of
the proper defendant in any such lawsuit, and the applicable time
limits for appeals and lawsuits. If the final order does not fully
implement the decision of the administrative judge, then the agency
shall simultaneously file an appeal in accordance with Sec. 1614.403
and append a copy of the appeal to the final order. A copy of EEOC Form
573 shall be attached to the final order.
(2) If an agency does not issue a final order within 60 days of
receipt of the administrative judge's decision, then the decision of
the administrative judge shall become the final action of the agency.
(3) A final order on a class complaint shall, subject to subpart D
of this part, be binding on all members of the class and the agency.
(k) Notification of final action: The agency shall notify class
members of the final action and relief awarded, if any, through the
same media employed to give notice of the existence of the class
complaint. The notice, where appropriate, shall include information
concerning the rights of class members to seek individual relief, and
of the procedures to be followed. Notice shall be given by the agency
within 10 days of the transmittal of the final action to the agent.
(l) * * *
(3) * * * The claim must include a specific detailed showing that
the claimant is a class member who was affected by the discriminatory
policy or practice, and that this discriminatory action took place
within the period of time for which class-wide discrimination was found
in the final order.
Sec. 1614.302 [Amended]
0
8. In Sec. 1614.302, in paragraph (c)(2), remove the words ``Sec.
1614.107(d)'' wherever they appear and add in their place the words
``Sec. 1614.107(a)(4)''.
Sec. 1614.401 [Amended]
0
9. In Sec. 1614.401, in paragraph (c), remove the words ``a class
agent may appeal a final decision on a class complaint'' and add in
their place the words ``a class agent may appeal an agency's final
action or an agency may appeal an administrative judge's decision on a
class complaint''.
0
10. In Sec. 1614.402, add a sentence to paragraph (a) before the last
sentence to read as follows:
Sec. 1614.402 Time for appeals to the Commission.
(a) * * * Appeals described in Sec. 1614.401(d) must be filed
within 30 days of receipt of the final decision of the agency, the
arbitrator or the Federal Labor Relations Authority.
* * * * *
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11. In Sec. 1614.403, revise the first sentence of paragraph (a), and
add paragraph (g) to read as follows:
Sec. 1614.403 How to appeal.
(a) The complainant, agency, agent, grievant or individual class
claimant (hereinafter appellant) must file an appeal with the Director,
Office of Federal Operations, Equal Employment Opportunity Commission,
at P.O. Box 77960, Washington, DC 20013, or electronically, or by
personal delivery or facsimile. * * *
* * * * *
(g) Agencies are required to submit appeals, complaint files, and
other filings to the Office of Federal Operations in a digital format
acceptable to the Commission, absent a showing of good cause why an
agency cannot submit digital records. Appellants are encouraged, but
not required, to submit digital appeals and supporting documentation to
the Office of Federal Operations in a format acceptable to the
Commission.
0
12. Amend Sec. 1614.405 by revising the second sentence of paragraph
(a), redesignating paragraph (b) as paragraph (c), adding a new
paragraph (b), and revising the first sentence of newly redesignated
paragraph (c) introductory text to read as follows:
Sec. 1614.405 Decisions on appeals.
(a) * * * The Commission shall dismiss appeals in accordance with
Sec. Sec. 1614.107, 1614.403(c) and 1614.409. * * *
(b) The Office of Federal Operations, on behalf of the Commission,
shall issue decisions on appeals of decisions to accept or dismiss a
class complaint issued pursuant to Sec. 1614.204(d)(7) within 90 days
of receipt of the appeal.
(c) A decision issued under paragraph (a) of this section is final
within the meaning of Sec. 1614.407 unless a timely request for
reconsideration is filed by a party to the case. * * *
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13. In Sec. 1614.409, revise the first sentence to read as follows:
Sec. 1614.409 Effect of filing civil action.
Filing a civil action under Sec. 1614.407 or Sec. 1614.408 shall
terminate
[[Page 43506]]
Commission processing of the appeal. * * *
Sec. 1614.502 [Amended]
0
14. In Sec. 1614.502, amend the last sentence of paragraph (c) by
removing the words ``60 days'' and adding in their place add the words
``120 days''.
0
15. In Sec. 1614.504, revise the second sentence of paragraph (c) to
read as follows:
Sec. 1614.504 Compliance with settlement agreements and final action.
* * * * *
(c) * * * If the Commission determines that the agency is not in
compliance with a decision or settlement agreement, and the
noncompliance is not attributable to acts or conduct of the
complainant, it may order such compliance with the decision or
settlement agreement, or, alternatively, for a settlement agreement, it
may order that the complaint be reinstated for further processing from
the point processing ceased. * * *
[FR Doc. 2012-18134 Filed 7-24-12; 8:45 am]
BILLING CODE 6570-01-P