Amendment of Procedural and Administrative Regulations To Include the Genetic Information Nondiscrimination Act of 2008 (GINA), 63981-63985 [E9-29012]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Rules and Regulations]
[Pages 63981-63985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29012]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Parts 1601, 1602, 1603, 1607, 1610, 1611, 1614, 1625, and 
1690

RIN 3046-AA88


Amendment of Procedural and Administrative Regulations To Include 
the Genetic Information Nondiscrimination Act of 2008 (GINA)

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission''), through this final rule, amends some of its existing 
regulations to include references to title II of the Genetic 
Information Nondiscrimination Act of 2008 (``GINA''), which prohibits 
employment discrimination based on genetic information.

DATES: Effective Date: January 6, 2010.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, (202) 663-4668, or Erin N. Norris, Senior Attorney, (202) 663-
4876, Office of Legal Counsel, 131 M Street, NE., Washington, DC 20507. 
Copies of this final rule are available in the following alternate 
formats: large print, braille, electronic computer disk, and audio-
tape. Requests for this final rule in an alternate format should be 
made to the Publications Center at 1-800-699-3362 (voice), 1-800-800-
3302 (TTY), or 703-821-2098 (FAX--this is not a toll free number).

SUPPLEMENTARY INFORMATION: On May 21, 2008, President George W. Bush 
signed the Genetic Information Nondiscrimination Act of 2008 (``GINA'') 
into law. Title II of GINA protects job applicants, current and former 
employees, labor union members, and apprentices and trainees from 
discrimination based on their genetic information. On May 20, 2009, 
EEOC proposed to amend its procedural and administrative regulations to 
add references to GINA and sought public comment (74 FR 23674). EEOC 
received two comments. One comment expressed support for the proposed 
changes. The other comment, which raised seven points, was considered; 
however, we declined to make any of those changes, because the items 
either dealt with

[[Page 63982]]

substantive GINA issues beyond the scope of this rulemaking or asked 
for inclusion of language that was either already included in the 
regulations or was unrelated to GINA.

Regulatory Procedures

Executive Order 12866

    The Commission has complied with the principles in section 1(b) of 
Executive Order 12866, Regulatory Planning and Review. This rule is not 
a ``significant regulatory action'' under section 3(f) of the Order 
12866, and does not require an assessment of potential costs and 
benefits under section 6(a)(3) of the Order.

Paperwork Reduction Act

    This regulation contains no new information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities because it only adds references and does not impose a burden 
on any business entities. For this reason, a regulatory flexibility 
analysis is not required.

Unfunded Mandates Reform Act of 1995

    This 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.

Congressional Review Act

    This action 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 Parts 1601, 1602, 1603, 1607, 1610, 
1611, 1614, 1625, and 1690

    Administrative practice and procedure, Equal Employment 
Opportunity.

    For the Commission.

    Dated: November 30, 2009.
Stuart J. Ishimaru,
Acting Chairman.

0
Accordingly, parts 1601, 1602, 1603, 1607, 1610, 1611, 1614, 1625, and 
1690 are amended as follows:

PART 1601--PROCEDURAL REGULATIONS

0
1. The authority citation for Part 1601 is revised to read as follows:

    Authority:  42 U.S.C. 2000e to 2000e-17; 42 U.S.C. 12111 to 
12117; 42 U.S.C. 2000ff to 2000ff-11.


0
2. Section 1601.1 is revised to read as follows:


Sec.  1601.1  Purpose.

    The regulations set forth in this part contain the procedures 
established by the Equal Employment Opportunity Commission for carrying 
out its responsibilities in the administration and enforcement of title 
VII of the Civil Rights Act of 1964, the Americans with Disabilities 
Act of 1990, and the Genetic Information Nondiscrimination Act of 2008. 
Section 107 of the Americans with Disabilities Act and section 207 of 
the Genetic Information Nondiscrimination Act incorporate the powers, 
remedies and procedures set forth in sections 705, 706, 707, 709 and 
710 of the Civil Rights Act of 1964. Based on its experience in the 
enforcement of title VII, the Americans with Disabilities Act, and the 
Genetic Information Nondiscrimination Act, and upon its evaluation of 
suggestions and petitions for amendments submitted by interested 
persons, the Commission may from time to time amend and revise these 
procedures.

0
3. Section 1601.2 is revised to read as follows:


Sec.  1601.2  Terms defined in title VII of the Civil Rights Act, the 
Americans with Disabilities Act, and the Genetic Information 
Nondiscrimination Act.

    The terms person, employer, employment agency, labor organization, 
employee, commerce, industry affecting commerce, State and religion as 
used in this part shall have the meanings set forth in section 701 of 
title VII of the Civil Rights Act of 1964. The term disability shall 
have the meaning set forth in section 3 of the Americans with 
Disabilities Act of 1990. The term genetic information shall have the 
meaning set forth in section 201 of the Genetic Information 
Nondiscrimination Act of 2008.

0
4. Section 1601.3 is amended by revising paragraph (a) to read as 
follows:


Sec.  1601.3  Other definitions.

    (a) For the purposes of this part, the term title VII shall mean 
title VII of the Civil Rights Act of 1964; the term ADA shall mean the 
Americans with Disabilities Act of 1990; the term GINA shall mean the 
Genetic Information Nondiscrimination Act of 2008; the term Commission 
shall mean the Equal Employment Opportunity Commission or any of its 
designated representatives; Washington Field Office shall mean the 
Commission's primary non-Headquarters office serving the District of 
Columbia and surrounding Maryland and Virginia suburban counties and 
jurisdictions; the term FEP agency shall mean a State or local agency 
which the Commission has determined satisfies the criteria stated in 
section 706(c) of title VII; and the term verified shall mean sworn to 
or affirmed before a notary public, designated representative of the 
Commission, or other person duly authorized by law to administer oaths 
and take acknowledgements, or supported by an unsworn declaration in 
writing under penalty of perjury.
* * * * *

0
5. Section 1601.28 is amended as follows:
0
a. In paragraphs (a)(3) and (b)(1), remove the words ``title VII or the 
ADA'' and add in their place the words ``title VII, the ADA, or GINA'' 
wherever they appear;
0
b. Revise paragraph (e)(1) to read as follows:


Sec.  1601.28  Notice of right to sue: Procedure and authority.

* * * * *
    (e) * * *
    (1) Authorization to the aggrieved person to bring a civil action 
under title VII, the ADA, or GINA pursuant to section 706(f)(1) of 
title VII, section 107 of the ADA, or section 207 of GINA within 90 
days from receipt of such authorization;
* * * * *


Sec. Sec.  1601.6, 1601.7, 1601.10, 1601.11, 1601.13, 1601.18, 1601.21, 
1601.22, 1601.24, 1601.25, 1601.26, 1601.30, 1601.70, and 
1601.79  [Amended]

0
6. Remove the words ``title VII or the ADA'' and add in their place the 
words ``title VII, the ADA, or GINA'' wherever they appear in the 
following places:
    a. Sec.  1601.6(a);
    b. Sec.  1601.7(a);
    c. Sec.  1601.10;
    d. Sec.  1601.11(b);
    e. Sec.  1601.13(a)(3)(i), (a)(4)(i);
    f. Sec.  1601.18(a);
    g. Sec.  1601.21(a), (e)(2)(iii);
    h. Sec.  1601.22, third sentence;
    i. Sec.  1601.24(c);

[[Page 63983]]

    j. Sec.  1601.25;
    k. Sec.  1601.26(a);
    l. Sec.  1601.30(a);
    m. Sec.  1601.70(d);
    n. Sec.  1601.79.


Sec. Sec.  1601.16, 1601.17, 1601.30, and 1601.34  [Amended]

0
7. Remove the words ``title VII and the ADA'' and add in their place 
the words ``title VII, the ADA, and GINA'' wherever they appear in the 
following places:
    a. Sec.  1601.16(a);
    b. Sec.  1601.17(a);
    c. Sec.  1601.30(a);
    d. Sec.  1601.34.


Sec.  1601.22  [Amended]

0
8. In the first sentence of Sec.  1601.22 remove the words ``the ADA or 
title VII'' and add in their place the words ``title VII, the ADA, or 
GINA'' wherever they appear.

PART 1602--RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE 
VII, THE ADA, AND GINA

0
9. The authority citation for part 1602 is revised to read as follows:

    Authority:  42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501 et seq.; 
42 U.S.C. 12117; 42 U.S.C. 2000ff-6.


0
10. The heading for part 1602 is revised to read as set forth above.

0
11. Section 1602.1 is revised to read as follows:


Sec.  1602.1  Purpose and scope.

    Section 709 of title VII (42 U.S.C. 2000e), section 107 of the 
Americans with Disabilities Act (ADA) (42 U.S.C. 12117), and section 
207(a) of the Genetic Information Nondiscrimination Act (GINA) (42 
U.S.C. 2000ff-6) require the Commission to establish regulations 
pursuant to which employers, labor organizations, joint labor-
management committees, and employment agencies subject to those Acts 
shall make and preserve certain records and shall furnish specified 
information to aid in the administration and enforcement of the Acts.


Sec. Sec.  1602.11, 1602.12, 1602.19, 1602.26, 1602.37, 1602.45, and 
1602.54  [Amended]

0
12. Remove the words ``title VII or the ADA'' and add in their place 
the words ``title VII, the ADA, or GINA''; and remove the words 
``section 709(c) of title VII or section 107 of the ADA'' and add in 
their place the words ``section 709(c) of title VII, section 107 of the 
ADA, or section 207(a) of GINA'' wherever they appear in the following 
places:
    a. 1602.11;
    b. 1602.12;
    c. 1602.19;
    d. 1602.26;
    e. 1602.37;
    f. 1602.45;
    g. 1602.54.

PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL 
GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER 
SECTION 321 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991

0
13. The authority citation for part 1603 is revised to read as follows:

    Authority:  42 U.S.C. 2000e-16c; 42 U.S.C. 2000ff-6(b).


0
14. Section 1603.102(a) is revised to read as follows:


Sec.  1603.102  Filing a complaint.

    (a) Who may make a complaint. Individuals referred to in Sec.  
1603.101 who believe they have been discriminated against on the basis 
of race, color, religion, sex, national origin, age, disability, or 
genetic information, or retaliated against for opposing any practice 
made unlawful by federal laws protecting equal employment opportunity 
or for participating in any stage of administrative or judicial 
proceedings under federal laws protecting equal employment opportunity 
may file a complaint not later than 180 days after the occurrence of 
the alleged discrimination.
* * * * *

PART 1607--UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES 
(1978)

0
15. The authority citation for Part 1607 continues to read as follows:

    Authority:  Secs. 709 and 713, Civil Rights Act of 1964 (78 
Stat. 265) as amended by the Equal Employment Opportunity Act of 
1972 (Pub. L. 92-261); 42 U.S.C. 2000e-8, 2000e-12.


Sec.  1607.2  [Amended]

0
16. In Sec.  1607.2, paragraph D,, remove the word ``handicap'' and add 
in its place the word ``disability.''

PART 1610--AVAILABILITY OF RECORDS

0
17. The authority citation for Part 1610 continues to read as follows:

    Authority:  42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by 
Pub. L. 93-502, Pub. L. 99-570, and Pub. L. 105-231; for Sec.  
1610.15, non-search or copy portions are issued under 31 U.S.C. 
9701.


0
18. Section 1610.7(a)(4) is revised to read as follows:


Sec.  1610.7  Where to make request; form.

    (a) * * *
    (4) Materials in office investigative files related to charges 
under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
seq.); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 621 et seq.); the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); or the Genetic 
Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.).
* * * * *

0
19. Section 1610.17(f) is revised to read as follows:


Sec.  1610.17  Exemptions.

* * * * *
    (f) Section 107 of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12117) and Section 207(a) of the Genetic Information 
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-6) explicitly adopt the 
powers, remedies, and procedures set forth in sections 706 and 709 of 
title VII. Accordingly, the prohibitions on disclosure contained in 
sections 706 and 709 of title VII as outlined in paragraphs (b), (c), 
(d), and (e) of this section, apply with equal force to requests for 
information related to charges and executed statistical reporting forms 
filed with the Commission under the Americans with Disabilities Act or 
the Genetic Information Nondiscrimination Act.
* * * * *

PART 1611--PRIVACY ACT REGULATIONS

0
20. The authority citation for Part 1611 continues to read as follows:

    Authority: 5 U.S.C. 552a.

0
21. Section 1611.13 is amended by revising the introductory text, the 
first sentence of paragraph (a), and the first sentence of paragraph 
(c) to read as follows:


Sec.  1611.13  Specific Exemptions--Charge and complaint files.

    Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2), 
systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-
3 (Title VII, Americans with Disabilities Act, and GINA Discrimination 
Case Files), EEOC-15 (Internal Harassment Inquiries) and EEOC/GOVT-1 
(Equal Employment Opportunity Complaint Records and Appeal Records) are 
exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), and (f) of the Privacy Act. The Commission has

[[Page 63984]]

determined to exempt these systems from the above named provisions of 
the Privacy Act for the following reasons:
    (a) The files in these systems contain information obtained by the 
Commission and other Federal agencies in the course of harassment 
inquiries, and investigations of charges and complaints that violations 
of Title VII of the Civil Rights Act, the Age Discrimination in 
Employment Act, the Equal Pay Act, the Americans with Disabilities Act, 
the Rehabilitation Act, and the Genetic Information Nondiscrimination 
Act have occurred. * * *
* * * * *
    (c) Subject individuals of the files in EEOC-1 (Age and Equal Pay 
Act Discrimination Case Files), EEOC-3 (Title VII, Americans with 
Disabilities Act, and GINA Discrimination Case Files), and EEOC/GOVT-1 
(Equal Employment Opportunity Complaint Records and Appeal Records) 
have been provided a means of access to their records by the Freedom of 
Information Act. * * *
* * * * *

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

0
22. The authority citation for Part 1614 is revised to read as follows:

    Authority:  29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 
2000e-16 and 2000ff-6(e); 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
23. Section 1614.101 is revised to read as follows:


Sec.  1614.101  General policy.

    (a) It is the policy of the Government of the United States to 
provide equal opportunity in employment for all persons, to prohibit 
discrimination in employment because of race, color, religion, sex, 
national origin, age, disability, or genetic information and to promote 
the full realization of equal employment opportunity through a 
continuing affirmative program in each agency.
    (b) No person shall be subject to retaliation for opposing any 
practice made unlawful by title VII of the Civil Rights Act (title VII) 
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act 
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)), 
the Rehabilitation Act (29 U.S.C. 791 et seq.), or the Genetic 
Information Nondiscrimination Act (GINA) (42 U.S.C. 2000ff et seq.) or 
for participating in any stage of administrative or judicial 
proceedings under those statutes.

0
24. Section 1614.102(a)(4) is revised to read as follows:


Sec.  1614.102  Agency program.

    (a) * * *
    (4) Communicate the agency's equal employment opportunity policy 
and program and its employment needs to all sources of job candidates 
without regard to race, color, religion, sex, national origin, age, 
disability, or genetic information, and solicit their recruitment 
assistance on a continuing basis;
* * * * *
0
25. Section 1614.103(a) is revised to read as follows:


Sec.  1614.103  Complaints of discrimination covered by this part.

    (a) Individual and class complaints of employment discrimination 
and retaliation prohibited by title VII (discrimination on the basis of 
race, color, religion, sex and national origin), the ADEA 
(discrimination on the basis of age when the aggrieved individual is at 
least 40 years of age), the Rehabilitation Act (discrimination on the 
basis of disability), the Equal Pay Act (sex-based wage 
discrimination), or GINA (discrimination on the basis of genetic 
information) shall be processed in accordance with this part. 
Complaints alleging retaliation prohibited by these statutes are 
considered to be complaints of discrimination for purposes of this 
part.
* * * * *

0
26. Section 1614.105(a) introductory text is revised to read as 
follows:


Sec.  1614.105  Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated 
against on the basis of race, color, religion, sex, national origin, 
age, disability, or genetic information must consult a Counselor prior 
to filing a complaint in order to try to informally resolve the matter.
* * * * *
0
27. Section 1614.204(a)(1) is revised to read as follows:


Sec.  1614.204  Class complaints.

    (a) * * *
    (1) A class is a group of employees, former employees or applicants 
for employment who, it is alleged, have been or are being adversely 
affected by an agency personnel management policy or practice that 
discriminates against the group on the basis of their race, color, 
religion, sex, national origin, age, disability, or genetic 
information.
* * * * *
0
28. Section 1614.302(a) is revised to read as follows:


Sec.  1614.302  Mixed case complaints.

    (a) Definitions--(1) Mixed case complaint. A mixed case complaint 
is a complaint of employment discrimination filed with a federal agency 
based on race, color, religion, sex, national origin, age, disability, 
or genetic information related to or stemming from an action that can 
be appealed to the Merit Systems Protection Board (MSPB). The complaint 
may contain only an allegation of employment discrimination or it may 
contain additional allegations that the MSPB has jurisdiction to 
address.
    (2) Mixed case appeals. A mixed case appeal is an appeal filed with 
the MSPB that alleges that an appealable agency action was effected, in 
whole or in part, because of discrimination on the basis of race, 
color, religion, sex, national origin, disability, age, or genetic 
information.
* * * * *

0
29. Section 1614.304(b)(3) is revised to read as follows:


Sec.  1614.304  Contents of petition.

* * * * *
    (b) * * *
    (3) A statement of the reasons why the decision of the MSPB is 
alleged to be incorrect, in whole or in part, only with regard to 
issues of discrimination based on race, color, religion, sex, national 
origin, age, disability, or genetic information;
* * * * *


Sec.  1614.601  [Amended]

0
30. Section 1614.601 is amended as follows:
0
a. Remove the word ``handicap(s)'' and add in its place the word 
``disability'' in paragraph (a);
0
b. Remove the word ``handicap'' and add in its place the word 
``disability'' wherever it appears in paragraphs (f) and (g);
0
c. Remove the word ``handicaps'' and add in its place the word 
``disabilities'' wherever it appears in paragraph (f).
0
31. Section 1614.702(j) is revised to read as follows:


Sec.  1614.702  Definitions.

* * * * *
    (j) The term basis of alleged discrimination refers to the 
individual's protected status (i.e., race, color, religion, reprisal, 
sex, national origin,

[[Page 63985]]

Equal Pay Act, age, disability, or genetic information). Only those 
bases protected by Title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. 2000e et seq., the Equal Pay Act of 1963, 29 U.S.C. 
206(d), the Age Discrimination in Employment Act of 1967, as amended, 
29 U.S.C. 621 et seq., the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 791 et seq., and the Genetic Information Nondiscrimination Act, 
42 U.S.C. 2000ff et seq., are covered by the federal EEO process.
* * * * *

PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT

0
32. The authority citation for Part 1625 continues to read as follows:

    Authority:  81 Stat. 602; 29 U.S.C. 621, 5 U.S.C. 301, 
Secretary's Order No. 10-68; Secretary's Order No. 11-68; sec. 12, 
29 U.S.C. 631, Pub. L. 99-592, 100 Stat. 3342; sec. 2, Reorg. Plan 
No. 1 of 1978, 43 FR 19807.


Sec.  1625.31  [Amended]

0
33. In Sec.  1625.31(a), remove the word ``handicapped'' and add in its 
place the phrase ``individuals with disabilities.''

PART 1690--PROCEDURES ON INTERAGENCY COORDINATION OF EQUAL 
EMPLOYMENT OPPORTUNITY ISSUANCES

0
34. The authority citation for Part 1690 continues to read as follows:

    Authority:  Sec. 715 of title VII of the Civil Rights Act of 
1964, as amended, (42 U.S.C. 2000e-14); Reorganization Plan No. 1 of 
1978, 43 FR 19807; E.O. 12067, 43 FR 28967.


Sec.  1690.102  [Amended]

0
35. In Sec.  1690.102, remove the word ``handicap'' and add in its 
place the word ``disability.''
[FR Doc. E9-29012 Filed 12-4-09; 8:45 am]
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