Enforcement of Nondiscrimination on the Basis of Disability in Programs or Activities Conducted by the Equal Employment Opportunity Commission and Accessibility of Commission Electronic and Information Technology, 9065-9068 [E8-2863]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 73, Number 33 (Tuesday, February 19, 2008)]
[Proposed Rules]
[Pages 9065-9068]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-2863]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1615

RIN 3046-AA82


Enforcement of Nondiscrimination on the Basis of Disability in 
Programs or Activities Conducted by the Equal Employment Opportunity 
Commission and Accessibility of Commission Electronic and Information 
Technology

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC or 
Commission) proposes to amend its regulation to establish that all 
complaints under section 508 of the Rehabilitation Act of 1973, as 
amended (section 508), whether filed by members of the public or EEOC 
employees, will be processed under the procedures for section 504 
public complaints. The Commission also proposes to update terminology 
which outlines how EEOC enforces section 504 of the Rehabilitation Act 
with respect to its own programs or activities. Finally, the Commission 
proposes to update or eliminate certain sections of this regulation 
that are no longer relevant.

DATES: Written comments on this proposed rulemaking must be submitted 
on or before April 21, 2008.

ADDRESSES: Written comments should be submitted to Stephen Llewellyn, 
Executive Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, 10th Floor, 1801 L Street, NW., Washington, DC 20507. As a 
convenience to commentators, the Executive Secretariat will accept 
comments transmitted by facsimile (``FAX'') machine. The telephone 
number of the FAX receiver is (202) 663-4114. (This is not a toll-free 
number.) Only comments of six or fewer pages will be accepted via FAX 
transmittal to ensure access to the equipment. Receipt of FAX 
transmittals will not be acknowledged, except that the sender may 
request confirmation of receipt by calling the Executive Secretariat 
staff at (202) 663-4070 (voice) or (202) 663-4074 (TTD). (These are not 
toll-free telephone numbers.) You may also submit comments and 
attachments electronically at https://www.regulations.gov, which is the 
Federal eRulemaking Portal. Follow the instructions online for 
submitting comments. Copies of comments submitted by the public will be 
available to review at the Commission's library, Room 6502, 1801 L 
Street, NW., Washington, DC 20507 between the hours of 9:30 a.m. and 5 
p.m. or can be reviewed at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Carol R. Miaskoff or Kerry Leibig, 
Office of Legal Counsel, U.S. Equal Employment Opportunity Commission 
at (202) 663-4638. (This is not a toll-free-telephone number.)

SUPPLEMENTARY INFORMATION: Section 508 of the Rehabilitation Act 
provides that each federal agency must ensure that the electronic and 
information technology it develops, procures, maintains, or uses is 
accessible to individuals with disabilities who are federal employees 
or applicants, or members of the public seeking information or services 
from the agency. Section 508 authorizes individuals to file 
administrative complaints and civil actions limited to the alleged 
failure to procure accessible technology. In addition to amending part 
1615 to address the requirements of Section 508, this notice proposes 
to update terminology and eliminate certain sections of part 1615 that 
are no longer relevant.

Summary of Updates in Proposed Regulation

    In 1992, Congress amended the Rehabilitation Act to replace the 
term ``handicap'' with the term ``disability.'' Public Law 102-569, 106 
Stat. 4344. Accordingly, the Commission proposes to replace the term 
``handicap'' with the term ``disability'' throughout part 1615. The 
Commission similarly proposes, again throughout part 1615, to replace 
the phrase ``individual with handicaps'' with ``individual with a 
disability'' and the phrase ``individuals with handicaps'' with 
``individuals with disabilities.'' Finally, the Commission proposes to 
replace the term ``nonhandicapped persons'' in 1615.130(c) with the 
term ``individuals without disabilities.''
    Throughout this part, the Commission proposes to replace the term 
``Chairman'' with the term ``Chair'' and the terms ``EEO Director'' and 
``Director, Equal Employment Opportunity Staff'' with the term 
``Director of OEO.''
    The Commission proposes to revise the definition at 1615.103 of 
``qualified individual with handicaps,'' as it relates to employment. 
The revised definition will cross-reference 29 CFR 1630.2(m), which 
defines ``qualified individual with a disability'' under the Americans 
with Disabilities Act (ADA), and will delete the previous reference. It 
is necessary to refer to 29 CFR 1630.2(m) in the regulations 
implementing section 504 because the Rehabilitation Act was amended in 
1992 to apply the nondiscrimination standards of Titles I and V of the 
ADA, as amended, to section 504 complaints alleging non-affirmative 
action employment discrimination. See 29 U.S.C. 794(d). The appropriate 
definition of ``qualified individual with a disability'' with respect 
to employment is therefore now found at 29 CFR 1630.2(m).
    The Commission proposes to eliminate the entire text of 1615.110. 
Section 1615.110 requires that the EEOC complete, by June 26, 1990, a 
self-evaluation of policies and practices, and the effects thereof, 
that do not or may not meet the requirements of the regulation. It 
further requires that a description of areas examined, problems 
identified, and modifications made to be kept on file for at least 
three years. Because these requirements were met and the given time 
periods have long

[[Page 9066]]

since passed, this section of the regulation is deleted.
    The Commission proposes to revise section 1615.140, which sets 
forth section 504's prohibition against employment discrimination, to 
cross-reference the Commission's ADA regulations at 29 CFR part 1630, 
and to delete the reference to part 1613, which is no longer in force.
    The Commission proposes to delete paragraphs (c) and (d) from 
section 1615.150. These paragraphs provide time frames by which the 
Commission must make existing facilities accessible, as defined in 
1615.150(a) and (b). These paragraphs further require the Commission to 
develop, by December 1989, a transition plan if structural changes to 
facilities are needed to achieve program accessibility. As these 
requirements have long since been met and the latest of the given time 
frames (June 26, 1992) has long passed, these sections of the 
regulation are deleted.
    The Commission further proposes to update 1615.170(b), which sets 
forth the procedures for processing complaints alleging violations of 
section 504 with respect to employment, to cross-reference 29 CFR part 
1614 rather than 29 CFR part 1613. Part 1614 replaced part 1613, which 
is no longer in force, and sets forth procedures for processing federal 
sector employment discrimination complaints arising under the EEO 
statutes enforced by the EEOC.
    Finally, the Commission proposes to revise 1615.170(j) and 
1615.170(k) to clarify the procedures for processing an appeal and to 
extend the time frame for doing so.

Summary of Section 508 Procedures in Proposed Regulation

    Several sections of the regulation will be amended to set forth the 
procedures for filing a complaint under section 508 against the EEOC.
    The statutory language in section 508 directs agencies to use the 
same complaint processing procedures as they use for section 504 
complaints. The Commission will use its section 504 complaint 
procedures set forth in 29 CFR 1615.170(d)-(m) to process all section 
508 complaints it receives whether from its applicants and employees, 
or from members of the public.
    The Commission will not use the federal sector equal employment 
opportunity administrative complaint procedures, 29 CFR part 1614, for 
section 508 complaints, even if they are filed by a Commission 
applicant or employee. The part 1614 process is reserved for complaints 
alleging employment discrimination. An allegation charging 
discrimination in access to electronic and information technology in 
violation of section 508 is outside the scope of part 1614.\1\
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    \1\ However, if the employee alleges that the denial of access 
to electronic or information technology is a violation of the 
Commission's duty to provide a reasonable accommodation under 
section 501 of the Rehabilitation Act, the Commission will use the 
part 1614 process.
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    If a section 501 complaint filed against the Commission in the part 
1614 process is found to include a separate section 508 claim, the 
Commission's Office of Equal Opportunity (OEO) will process the section 
501 claim through the part 1614 process and it will process the section 
508 claim pursuant to the procedures set forth in 29 CFR 1615.170(d)-
(m).
    Section 508 authorizes administrative complaints and lawsuits on or 
after June 21, 2001, but only with respect to federal agency 
procurements made on or after June 21, 2001, in violation of section 
508. It does not authorize administrative complaints or lawsuits to be 
filed with respect to electronic and information technology that is 
``developed, maintained or used'' by a federal agency. The proposed 
amendment to 1615.170 reflects this fact by describing the compliance 
procedures to be used for complaints alleging violations of the 
agency's responsibility to procure electronic and information 
technology under section 508.\2\
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    \2\ We note, however, that the Commission, like all federal 
agencies, has additional longstanding obligations that are 
enforceable under sections 501 and 504 of the Rehabilitation Act. 
Some of these obligations may be triggered when electronic and 
information technology is ``developed, maintained, or used'' by 
federal agencies and is not accessible. If individuals file 
complaints alleging that electronic or information technology 
acquired or developed prior to June 21, 2001, is inaccessible to 
people with disabilities, the Commission will review the allegations 
to determine if they more properly allege violations of sections 501 
or 504 and process them accordingly.
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    For a discussion of section 508 enforcement methods, interested 
parties are advised to consult the Department of Justice's Section 508 
of the Rehabilitation Act: Accessibility for People with Disabilities 
in the Information Age (Results of 2001 Survey) at Section III.A, which 
discusses administrative complaints and lawsuits under section 508. See 
https://www.usdoj.gov/crt/508/report2/complaints.htm. Interested parties 
may also wish to consult the overview of section 508 provided by the 
Architectural and Transportation Barriers Compliance Board (Access 
Board) available at https://www.access-board.gov/sec508/summary.htm.\3\
_____________________________________-

 \3\ The Access Board issues standards for electronic and 
information technology covered by section 508. These standards set 
forth a definition of electronic and information technology and the 
technical and functional performance criteria necessary for such 
technology to comply with section 508. See 36 CFR part 1194.
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Regulatory Procedures

Executive Order 12866

    In promulgating this notice of proposed rulemaking, the Commission 
has adhered to the regulatory philosophy and applicable principles of 
regulation set forth in section 1 of Executive Order 12866, Regulatory 
Planning and Review. As indicated in the Semi-Annual Regulatory Agenda 
for Fall 2007, this regulation is not a significant regulation within 
the meaning of the Executive Order.

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 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 a federal agency and 
individuals accessing the services of a federal agency. For this 
reason, a regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

    This proposed 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).

List of Subjects in 29 CFR Part 1615

    Administrative practice and procedure, Civil rights, Equal 
employment opportunity, Federal buildings and facilities, Individuals 
with disabilities.
    For the reasons set forth in the preamble, the EEOC proposes to 
amend 29 CFR part 1615 as follows:

[[Page 9067]]

PART 1615--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF 
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION AND IN ACCESSIBILITY OF 
COMMISSION ELECTRONIC AND INFORMATION TECHNOLOGY

    1. Revise the authority citation for 29 CFR Part 1615 to read as 
follows:

    Authority: 29 U.S.C. 794 and 29 U.S.C. 794d(f)(2).

    2. The heading of part 1615 is revised to read as set forth above.
    3. Amend part 1615 to remove the term ``handicap'' wherever it 
appears and add, in its place, the term ``disability.''
    4. Amend part 1615 to remove the phrase ``individual with a 
handicap'' wherever it appears and add, in its place, the phrase 
``individual with a disability.''
    5. Amend part 1615 to remove the phrase ``individuals with 
handicaps'' wherever it appears and add, in its place, the phrase 
``individuals with disabilities.''
    6. Amend part 1615 to remove the term ``nonhandicapped persons'' 
wherever it appears and add, in its place, the term ``individuals 
without disabilities.''
    7. Amend part 1615 to remove the term ``Chairman'' wherever it 
appears and add, in its place, the term ``Chair.''
    8. Amend part 1615 to remove the term ``EEO Director'' wherever it 
appears and add, in its place, the term ``Director of OEO.''
    9. Section 1615.101 is amended by redesignating the current 
paragraph as paragraph (a) and adding a new paragraph (b) to read as 
follows:


Sec.  1615.101  Purpose.

* * * * *
    (b) The purpose of this part is also to effectuate section 508 of 
the Rehabilitation Act, which requires that when Federal departments 
and agencies develop, procure, maintain, or use electronic and 
information technology, they shall ensure accessibility by individuals 
with disabilities who are Federal employees or applicants, or members 
of the public.
    10. Section 1615.102 is revised to read as follows:


Sec.  1615.102  Application.

    This part applies to all programs or activities conducted by the 
Commission and to its development, procurement, maintenance, and use of 
electronic and information technology.
    11. Section 1615.103 is amended as follows:
    A. The definition of ``Complete complaint'' is revised.
    B. A definition of ``Electronic and information technology'' is 
added.
    C. The definition heading ``Individual with handicaps'' is removed 
and ``Individual with a disability'' is added in its place.
    D. The definition ``Qualified individual with a handicap'' is 
removed and a definition of ``Qualified individual with a disability'' 
is added in its place.
    E. A definition of ``Section 508'' is added.
    The revisions and additions read as follows:


Sec.  1615.103  Definitions.

* * * * *
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the Commission's actions 
in sufficient detail to inform the Commission of the nature and date of 
the alleged violation of section 504 or section 508. It shall be signed 
by the complainant or by someone authorized to do so on his or her 
behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Electronic and Information Technology. Includes information 
technology and any equipment or interconnected system or subsystem of 
equipment that is used in the creation, conversion, or duplication of 
data or information. The term electronic and information technology 
includes, but is not limited to, telecommunications products (such as 
telephones), information kiosks and transaction machines, World Wide 
Web sites, multimedia, and office equipment such as copiers and fax 
machines. The term does not include any equipment that contains 
embedded information technology that is used as an integral part of the 
product, but the principal function of which is not the acquisition, 
storage, manipulation, management, movement, control, display, 
switching, interchange, transmission, or reception of data or 
information. For example, HVAC (heating, ventilation, and air 
conditioning) equipment such as thermostats or temperature control 
devices, and medical equipment where information technology is integral 
to its operation, are not information technology.
* * * * *
    Qualified individual with a disability means:
    (1) With respect to any Commission program or activity (except 
employment), an individual with a disability who, with or without 
modifications or aids required by this part, meets the essential 
eligibility requirements for participation in, or receipt of benefits 
from, that program or activity.
    (2) With respect to employment, a qualified individual with a 
disability as defined in 29 CFR 1630.2(m), which is made applicable to 
this part by 1615.140.
* * * * *
    Section 508 means section 508 of the Rehabilitation Act of 1973, 
Public Law 93-112, Title V, section 508, as added Public Law 99-506, 
Title VI, section 603(a), Oct. 21, 1986, 100 Stat. 1830, and amended 
Public Law 100-630, Title II, section 206(f), Nov. 7, 1988, 102 Stat. 
3312; Public Law 102-569, Title V, section 509(a), Oct. 29, 1992, 106 
Stat. 4430; Public Law 105-220, Title IV, section 408(b), Aug. 7, 1998, 
112 Stat. 1203.


Sec.  1615.110  [Removed and Reserved]

    12. Section 1615.110 is removed and reserved.
    13. Section 1615.135 is added to read as follows:


Sec.  1615.135  Electronic and information technology requirements.

    (a) Development, procurement, maintenance, or use of electronic and 
information technology.--When developing, procuring, maintaining, or 
using electronic and information technology, the Commission shall 
ensure, unless an undue burden would be imposed on it, that the 
electronic and information technology allows, regardless of the type of 
medium of the technology--
    (1) Individuals with disabilities who are Commission employees to 
have access to and use of information and data that is comparable to 
the access to and use of the information and data by Commission 
employees who are not individuals with disabilities; and
    (2) Individuals with disabilities who are members of the public 
seeking information or services from the Commission to have access to 
and use of information and data that is comparable to the access to and 
use of the information and data by such members of the public who are 
not individuals with disabilities.
    (b) Alternative means of access when undue burden is imposed.--When 
development, procurement, maintenance, or use of electronic and 
information technology that meets the standards published by the Access 
Board at 36 CFR part 1194 would impose an undue burden, the

[[Page 9068]]

Commission shall provide individuals with disabilities covered by this 
section with the information and data involved by an alternative means 
of access that allows the individual to use the information and data.
    14. Section 1615.140 is revised to read as follows:


Sec.  1615.140  Employment.

    No qualified individual with a disability shall, on the basis of 
disability, be subjected to discrimination in employment under any 
program or activity conducted by the Commission. The definitions, 
requirements, and procedures of section 501 of the Rehabilitation Act 
of 1973 (29 U.S.C. 791), as established by this Commission in 29 CFR 
part 1614, shall apply to employment in federally conducted programs or 
activities. As noted in 29 CFR 1614.203(b), the standards used to 
determine whether section 501 of the Rehabilitation Act has been 
violated in a complaint alleging non-affirmative action employment 
discrimination under part 1614 shall be the standards applied under 
Title I and Title V (sections 501 through 504 and 510) of the Americans 
with Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 
12201) as such sections relate to employment. These standards are set 
forth in the Commission's ADA regulations at 29 CFR part 1630. If a 
section 501 complaint is filed against the Commission in the part 1614 
process and it is found to include a separate section 508 claim, the 
part 1614 process will be used to process the section 501 claim. The 
section 508 claim will be processed separately in accordance with the 
procedures set forth at Sec.  1615.170.


Sec.  1615.150  [Amended]

    15. Section 1615.150(c) and (d) are removed.
    16. Section 1615.170 is amended as follows:
    A. Revise paragraphs (a), (b), and (c).
    B. Revise the first sentences of paragraphs (d)(1) and (d)(2).
    C. Revise the third and fourth sentences of paragraph (i).
    D. Revise paragraph (j).
    E. Revise the first sentence of paragraph (k).
    F. Add a new paragraph (n).
    The revisions and additions read as follows:


Sec.  1615.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
disability in programs or activities conducted by the Commission in 
violation of section 504. This section also applies to all complaints 
alleging a violation of the agency's responsibility to procure 
electronic and information technology under section 508 whether filed 
by members of the public or EEOC employees or applicants.
    (b) The Commission shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by EEOC in 29 CFR part 1614 pursuant to section 501 of the 
Rehabilitation Act of 1973 (29 U.S.C. 791). With regard to employee 
claims concerning agency procurements made in violation of section 508, 
the procedures set out in paragraphs (d) through (m) of this section 
shall be used.
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director, Office of Equal Opportunity (Director 
of OEO).
    (d) * * * (1) * * * Any person who believes that he or she has been 
subjected to discrimination prohibited by this part or that the 
agency's procurement of electronic and information technology has 
violated section 508, or authorized representative of such person, may 
file a complaint with the Director of OEO. * * *
    (2) * * * Complaints shall be filed with the Director of OEO within 
one hundred and eighty calendar days of the alleged acts of 
discrimination. * * *
* * * * *
    (i) * * * An appeal shall be deemed filed on the date it is 
postmarked, or, in the absence of a postmark, on the date it is 
received by the Chair at EEOC headquarters. It should be clearly marked 
``Appeal of Section 504 decision'' or ``Appeal of Section 508 
decision'' and should contain specific objections explaining why the 
person believes the initial decision was factually or legally wrong. * 
* *
    (j) Timely appeals shall be decided by the Chair of the Commission 
unless the Commission determines that an appeal raises a policy issue 
which should be addressed by the full Commission.
    (1) The Chair will draft a decision within 30 days of receipt of an 
appeal and circulate it to the Commission.
    (2) If a Commissioner believes an appeal raises a policy issue that 
should be addressed by the full Commission, he or she shall so inform 
the Chair by notice in writing within ten calendar days of the 
circulation of the draft decision on appeal.
    (3) If the Chair does not receive such written notice, the decision 
on appeal shall be issued.
    (4) If the Chair receives written notice as described in 
subparagraph (2), the Commission shall resolve the appeal through a 
vote.
    (k) The Commission shall notify the complainant of the results of 
the appeal within ninety calendar days of the receipt of the appeal 
from the complainant. * * *
* * * * *
    (n) Civil actions. The remedies, procedures, and rights set forth 
in sections 505(a)(2) and 505(b) of the Rehabilitation Act, 29 U.S.C. 
794a(a)(2) and 794a(b) shall be the remedies, procedures, and rights 
available to any individual with a disability filing a complaint under 
this section.

    Dated: February 7, 2008.
Naomi C. Earp,
Chair.
 [FR Doc. E8-2863 Filed 2-15-08; 8:45 am]
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