Nondiscrimination Provisions, 43919-43923 [2014-17802]

Agencies

• Office of Personnel Management

[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Rules and Regulations]
[Pages 43919-43923]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17802]



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Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules 
and Regulations

[[Page 43919]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 300, 315, 335, 410, 537, and 900

RIN 3206-AM77


Nondiscrimination Provisions

AGENCY: U.S. Office of Personnel Management.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is issuing a final 
rule to update various nondiscrimination provisions to provide greater 
consistency and reflect current law.

DATES: This final rule is effective July 29, 2014.

FOR FURTHER INFORMATION CONTACT: Sharon Wong by telephone at (202) 606-
7140; by TTY at 1-800-877-8339; by fax at (202) 606-6042; or by email 
at diversityandinclusion@opm.gov.

SUPPLEMENTARY INFORMATION: On September 4, 2013, OPM issued proposed 
regulations in the Federal Register (78 FR 54434) to update certain 
regulations that contain nondiscrimination provisions. OPM conducted a 
retrospective review of its regulations, including those with 
nondiscrimination provisions, as part of the Executive Order 13563 
directive that agencies review existing regulations to determine 
whether they should be changed or eliminated. See https://www.opm.gov/Open/Resources/RetrospectiveRegReview.pdf.
    OPM also chose these regulations for retrospective review to 
further respond to a separate instruction issued by President Obama in 
a June 17, 2009, Memorandum on Federal Benefits and Nondiscrimination, 
which directed OPM to issue guidance to promote compliance with 
existing laws that required Federal workplaces to be free of 
discrimination based on non-merit factors. See 5 U.S.C. 2303(b)(10); 
https://www.whitehouse.gov/the-press-office/memorandum-heads-executive-departments-and-agencies-federal-benefits-and-non-discri.
    Our review revealed that the nondiscrimination provisions in 
certain regulations were inconsistently worded or had not been updated 
to reflect recent legal developments, including enactment of the 
Genetic Information Nondiscrimination Act of 2008 (GINA), Pub. L. 110-
233, which prohibits discrimination on the basis of genetic information 
(including family medical history). Accordingly, OPM is issuing these 
final regulations to update the nondiscrimination provisions of certain 
regulations to reflect current law and to make them consistent, to the 
greatest extent possible.
    Some of the nondiscrimination provisions reflect statutory 
prohibitions on discrimination that arise out of the civil service laws 
codified at title 5, United States Code, and OPM's authority to enforce 
the merit system principles. Others were promulgated to reflect the 
provisions of Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e, et seq.), the Rehabilitation Act of 1973, as amended (29 
U.S.C. 701 et seq.), and the Age Discrimination in Employment Act of 
1967, as amended (ADEA) (29 U.S.C. 621-634). As a result, we adopted 
two formulations of the nondiscrimination language. For those grounded 
in Title VII of the Civil Rights Act, the Rehabilitation Act, the ADEA, 
and the GINA (referred to collectively here as ``civil rights laws''), 
the provisions will reflect the statutory prohibitions of 
discrimination on the basis of race, color, religion, sex (including 
pregnancy and gender identity), national origin, age (as defined by the 
Age Discrimination in Employment Act of 1967, as amended), disability, 
genetic information (including family medical history) and retaliation 
for exercising rights under the statutes enumerated above, where 
retaliation rights are available. For those grounded in the civil 
service laws, the provisions reflect the statutory prohibitions of 
discrimination on those bases (5 U.S.C. 2302(b)(1)(A)-(D)), as well as 
prohibitions of discrimination on the basis of marital status (5 U.S.C. 
2302(b)(1)(E)); political affiliation (id.); and sexual orientation, 
labor organization affiliation or non-affiliation, status as a parent, 
or any other non-merit-based factor (E.O. 13087; E.O. 13152; 5 U.S.C. 
2302(b)(10)). It also incorporates retaliation for exercising rights 
under the statutes enumerated above, where retaliation rights are 
available. (5 U.S.C. 2302(b)(9)(A)-(B)).
    We further concluded that the nondiscrimination provisions 
currently appearing in some regulations were grounded in other specific 
legal authorities and appropriately reflected the scope of the laws 
that they are implementing. Therefore, we did not propose changes to 
those provisions. See 5 CFR part 720 and 5 CFR part 724.
    We believe that greater consistency across our nondiscrimination 
provisions will clarify the protections afforded to individuals and 
lessen the confusion that might result from the use of different 
language in various provisions. Also, where appropriate, we updated the 
authority citations for the regulations to reflect a complete list of 
the statutory provisions pursuant to which the regulations are now 
being reissued.
    As part of the update process, in reviewing the proposed text for 
section 300.103(c), we also noticed that the heading, ``Equal 
employment opportunity,'' was not completely descriptive of the 
subparagraph because it encompassed forms of discrimination not 
currently encompassed by the equal employment opportunity laws. 
Accordingly, we have changed this heading to read ``Equal employment 
opportunity and prohibited forms of discrimination.''
    OPM received six sets of comments in response to the proposed 
changes to the regulation in 5 CFR parts 300, 315 and 335. Comments on 
the proposed changes were received from an anonymous commenter, a 
private citizen (law student), one Federal agency, a disability 
advocacy group, a religious organization, and a coalition of advocacy 
groups.
    The anonymous commenter requested to have ``gender, particularly 
trans-gender'' listed as a protected category and age discrimination 
claims expanded to include all ages. With regard to gender, as noted 
above, the category ``gender identity'' is already included within the 
category of ``sex (including pregnancy and gender identity).''

[[Page 43920]]

Accordingly, OPM does not believe any further action on this comment is 
necessary or appropriate. Similarly, with regard to the commenter's 
position on the scope of age discrimination claims, OPM lacks the 
authority to revise the statutory elements for the ADEA through this 
rulemaking process, and thus declines to adopt that comment.
    The individual commenter focused on issues related to the addition 
of ``sexual orientation'' as a protected category in certain 
provisions. The commenter stated that he believed the regulations will 
result in greater inconsistency because the references to sexual 
orientation were limited to the administrative arena and do not include 
the right to file a civil action in a Federal court. He also asserted 
that the absence of a right to Federal court meant the regulations were 
not ``current.''
    In support of his position, the commenter cited a 2002 district 
court ruling, which held that sexual orientation claims are not 
actionable under Title VII. OPM has considered this comment but does 
not agree that the revised regulations will result in ``greater 
inconsistency'' or that the changes have not made the regulations 
``current.'' These regulations seek to reflect the existing state of 
the law. Specifically, under the Civil Service Reform Act (CSRA), OPM 
has broad authority to issue regulations, including defining what is 
meant by ``non-merit-based factors.'' Under this authority, OPM has 
long held that, when tied to an actionable Part 300 claim, a claim of 
sexual orientation discrimination could reach the Merit System 
Protection Board and possibly, the Federal Circuit. Therefore, the 
regulations correctly note that claims of sexual orientation 
discrimination may be brought under the CSRA. On the other hand, these 
regulations seek to reflect, and do not purport to alter, the existing 
state of the law in Federal courts. Consequently, the regulations do 
not, and did not intend to, opine on what kinds of claims may be viable 
sex discrimination claims in Federal courts under Title VII.
    The commenter suggested in the alternative that OPM add language 
explaining what he described as ``the discrepancy between a [F]ederal 
employee's right to administratively pursue a sexual orientation 
discrimination claim and the narrow judicial review sections of the 
CSRA,'' either in the regulation or in the OPM handbook titled 
``Addressing Sexual Orientation Discrimination.'' See Comment at page 
5. OPM has considered this comment but declined to adopt either 
alternative. These regulations are not a strategic guide for 
litigation; rather, they only restate the law as it exists today. 
Accordingly, OPM declines to add specific information regarding 
litigation options for sexual orientation claims. With respect to OPM's 
handbook, OPM notes this document has been rendered out of date as a 
result of significant developments that have occurred since its 
original publication in 2008, including most significantly the Supreme 
Court's decision invalidating Section 3 of the Defense of Marriage Act 
(DOMA). As a result, this handbook has been taken down from OPM's Web 
site for an assessment of whether the document can merely be updated or 
whether a new publication is appropriate.
    The commenter also requested that OPM either define the term 
``sexual orientation'' or add a parenthetical to make the meaning 
clearer, similar to parentheticals added to other bases under Title 
VII. The commenter believed such definitions were needed in order for 
the provisions to truly reflect what he defines as ``current law.'' The 
religious organization also raised a concern that ``sexual 
orientation'' was not defined. OPM considered these comments but 
declines to adopt them. The parentheticals for the Title VII categories 
were included only for clarification and for consistency across the 
regulations with nondiscrimination provisions. Although both commenters 
suggest that the ``meaning'' of sexual orientation is not unified, the 
existing case law demonstrates that the term ``sexual orientation'' is 
generally understood in the context of nondiscrimination jurisprudence, 
and thus not in need of further definition or clarification in these 
regulations.
    The individual commenter, the agency, and the disability advocacy 
organization questioned why certain bases were missing from the list of 
protected bases in certain provisions within Part 300, Employment 
Practices. In particular, each commenter noted the difference between 5 
CFR 300.104 (Appeals, Grievances and Complaints; complaints and 
grievance to an agency) as compared to 5 CFR 300.103 (Basic 
requirements; equal employment opportunity). The commenter recognized 
these two provisions were grounded in different authorities but 
suggested that sexual orientation should be added to section 
300.104(c)(1) \1\ to allow for a complaint alleging sexual orientation 
discrimination within an agency. OPM has considered but declines to 
accept this suggestion. Section 300.103(c), one of the three 
foundations for raising an employment practice claim, identifies the 
statutory categories of discrimination under the civil rights laws and 
prohibited personnel practices under the merit system principles for 
which one can seek redress. Section 300.104(c), however, is an internal 
agency administrative complaints process that was created by regulation 
in order to give another, although more limited, avenue for redress to 
employees. Given the more limited authority for an action under section 
300.104(c), OPM initially decided that it was more appropriate to 
simply update the language within the provision, including changing an 
obsolete procedural citation, but not add any additional bases for a 
claim. Upon further review, however, OPM believes it is appropriate to 
further update the language in this provision to include the same 
formulation for Title VII claims found in 300.103(c) for consistency. 
Therefore, the parenthetical (including pregnancy and gender identity) 
has been added to the category ``sex,'' and ``disability,'' ``genetic 
information (including family medical history),'' and ``retaliation'' 
have been added as separate categories.
---------------------------------------------------------------------------

    \1\ The commenter actually cited ``section 300.103(c)(1),'' but 
OPM believes this is a typographic error because this same sentence 
referenced the right to file a complaint, which is consistent with 
language in ``section 300.104(c)(1).'' Moreover, the term ``sexual 
orientation'' is already included in section 300.103(c).
---------------------------------------------------------------------------

    The agency specifically questioned why ``disability,'' ``genetic 
information,'' and ``retaliation'' were not included in the list of 
protected bases in section 300.104(c)(1) as well as why ``genetic 
information'' and ``retaliation'' were not included in section 
315.806(d) (Appeal rights to the Merit System Protection Board [MSPB]). 
As noted above, upon further review, OPM has decided to further update 
section 300.104(c)(1) to reflect the same formulation for claims under 
the civil rights laws already found in section 300.103(c). So 
``disability,'' ``genetic information (including family medical 
history),'' and ``retaliation'' have now been added as separate 
categories.
    Further, while considering the agency comments, OPM identified an 
error in the final sentence of section 300.104(c)(1). Specifically, the 
sentence refers to ``EEO and grievance procedures.'' The grievance 
procedures, however, are already referenced in section 300.104(c)(2). 
Therefore, OPM removed the duplicative reference to ``grievance'' from 
the last sentence in section 300.104(c)(1).
    In section 315.806(d) of Part 315, OPM addresses probationary 
employees. Longstanding Civil Service Commission and OPM regulations, 
now at 5 CFR

[[Page 43921]]

315.806(d), limit probationers' access to the MSPB to appeals based on 
discrimination claims based on marital status or partisan political 
reasons. The regulations permitted appellants to append allegations of 
other types of discrimination that were then enshrined in statute when 
an employee raised a marital status or partisan political reason 
allegation.
    Consistent with the purpose of these regulations--to ``update 
various nondiscrimination provisions'' in Title 5 of the Code of 
Federal Regulations--OPM proposed to retain the current content of the 
regulation, but change ``handicapping condition'' to ``disability.'' In 
keeping with our objective of conforming the regulation to accurately 
reflect the current state of the law, we also added the parenthetical 
``(including pregnancy and gender identity)'' to the word ``sex.'' The 
separate grounds of ``genetic information (including family medical 
history)'' and ``retaliation'' have not been added, however, because 
those categories would create new rights, which is outside the scope of 
this rulemaking process.
    The disability advocacy organization supported OPM's proposal to 
add disability and genetic information to the non-discrimination 
provisions in sections 300.102, 300.103, and 335.103. Similar to the 
agency, however, the organization also thought ``disability'' and 
``genetic information'' should be added to the list of claims 
actionable under the agency administrative process in section 
300.104(c). For the reasons discussed above, OPM agrees with this view 
and has added ``disability'' and ``genetic information (including 
family medical history).''
    The disability advocacy organization also asked that OPM ``clarify 
in the final regulations that the Uniform Guidelines on Employee 
Selection Procedures (UGESP) does not apply to complaints of 
discrimination based on disability'' in light of statements from the 
EEOC related to UGESP. OPM considered this comment and agrees that 
clarification is needed. On its face, UGESP states that it applies to 
employment selection procedures with an adverse impact on members of a 
race, color, religion, sex, or national origin group. Therefore, 
section 300.103(c) is further revised to make it clear that while the 
categories of claims in this regulation have been updated to reflect 
current law, to the extent possible, OPM did not intend to expand the 
scope of the UGESP.
    The disability advocacy group's final comment asked OPM to revise 5 
CFR 300.103(b) (Relevance), a different provision of the employment 
practice claims regulations. This provision was not part of this update 
process; therefore, this comment is outside of the scope of this 
rulemaking and will not receive any further consideration, beyond 
acknowledging receipt.
    The religious organization questioned the inclusion of ``gender 
identity'' and ``sexual orientation'' to categories to prevent Federal 
workplace discrimination. First, the organization stated the inclusion 
of ``gender identity'' was not authorized by statute and the term is 
ambiguous and not defined in the regulations. OPM has considered these 
comments but disagrees that the category of ``gender identity'' is not 
authorized or that the term is not sufficiently defined. OPM notes that 
since 2012, the Equal Employment Opportunity Commission (EEOC) has 
recognized, in case law, that a gender identity claim is a form of 
discrimination on the basis of sex under Title VII. See Macy v. Holder, 
No. 0120120821, 2012 WL 1435995 *2 (EEOC, Apr. 20, 2012). Operative law 
is defined not only by the literal terms of statute and regulation but 
also by case law developed by the agency upon which authority to 
resolve claims is conferred and any Federal courts with jurisdiction to 
consider such claims. Although the organization cited several cases 
that, in its view, supported its position regarding the viability of 
gender identity claims under Title VII, the position outlined by the 
EEOC in its 2012 Macy decision is the operative precedent with respect 
to how such claims will be handled through the Federal sector EEO 
process, which was our focus in drafting this language. In addition, as 
a substantive matter, two recent Federal court decisions, including one 
involving the Federal sector, have recognized the viability of such 
claims, see Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008); 
Finkle v. Howard Co., ----F. Supp. 2d ----, 2014 WL 1396386, at *8 (D. 
Md. Apr. 10, 2014). Moreover, several Federal courts have allowed 
gender identity discrimination claims to proceed as allegations of sex 
stereotyping under Title VII or section 1983, see, e.g., Glenn v. 
Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011); Barnes v. City of 
Cincinnati, 401 F.3d 729 (6th Cir. 2005). The existing case law 
demonstrates that the term ``gender identity'' is generally understood 
in the context of nondiscrimination jurisprudence, and thus not in need 
of further definition or clarification in these regulations.
    The organization also stated that if the ``gender identity'' claim 
remained in the regulations, then there was no need for a bill such as 
``Employment Non-Discrimination Act'' (ENDA) and that such inclusion 
``would have an adverse impact on the rights of other employees.'' See 
Comment at page 4. It made a similar comment about the negative impact 
of the ``sexual orientation'' category on the rights of other 
employees. OPM has considered but disagrees with these comments. 
Pending legislative actions, such as ENDA, are outside of the scope of 
this rulemaking, but OPM notes that the possibility of future 
legislation is not a basis for declining to act. See Pension Ben. Guar. 
Corp. v. LTV Corp, 496 U.S. 633, 650 (1990) (``Subsequent legislative 
history is a hazardous basis for inferring the intent of an earlier 
Congress. It is a particularly dangerous ground on which to rest an 
interpretation of a prior statute when it concerns, as it does here, a 
proposal that does not become law.'') (internal quotations and 
citations omitted). Moreover, even if passed, ENDA would not be limited 
to the Federal workforce, so would not be redundant to these 
regulations.
    With regard to the rights of other employees, OPM notes it is 
already unlawful to discriminate against Federal employees or 
applicants for Federal employment on the basis of factors not related 
to job performance. 5 U.S.C. 2302(b)(10). The inclusion in these 
regulations of ``gender identity'' and ``sexual orientation'' did not 
change that longstanding prohibition. On the other hand, the suggestion 
that OPM simply incorporate the existing statutory language for 5 
U.S.C. 2302(b)(10) is inconsistent with the purpose of this rulemaking 
process, which is to reduce the likelihood of confusion and 
inconsistent application. So OPM declines to adopt that suggestion.
    Lastly the organization asserts that inclusion of ``gender 
identity'' and ``sexual orientation'' as part of a list of protected 
classes, along with other classes such as race, unfairly equates 
religious or moral opposition to claims of gender identity or sexual 
orientation with racial bigotry. OPM does not make such a moral 
equivalence assertion and does not believe the regulations, as written, 
inherently lead to such comparisons. Therefore, OPM does not believe 
this concern is a basis for removing the category of ``gender 
identity'' or ``sexual orientation'' from the nondiscrimination 
regulations.
    The coalition of advocacy groups agreed with the changes in the 
regulations that added the parenthetical to ``sex'' so that it now 
reads ``sex (including pregnancy and gender identity)'' under the 
formulation for categories under Title VII. The coalition also asked 
that OPM further revise the

[[Page 43922]]

Title VII categories to include sexual orientation. As OPM noted 
previously, the purpose of this rulemaking is to note that claims of 
discrimination based upon factors not related to job performance, such 
as sexual orientation, may be brought under CSRA, the regulations do 
not, and did not intend at this time, to specifically address Title 
VII.
    The coalition also requested that OPM take additional actions to 
work with other agencies to update their EEO policies and update 
existing guidance related to transgender employees. These requests are 
outside of the scope of this rulemaking process but OPM notes that it 
plans to assess all of the OPM published materials in this area to 
determine whether new or updated publications are appropriate.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities because they 
would apply only to Federal agencies and employees.

List of Subjects in 5 CFR Parts 300, 315, 335, 410, 537, and 900

    Administrative practice and procedure, Equal employment 
opportunity, Government employees, Individuals with disabilities, 
Intergovernmental relations.

U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
    Accordingly, OPM amends title 5, Code of Federal Regulations, as 
follows:

PART 300--EMPLOYMENT (GENERAL)

0
1. Revise the authority citation for 5 CFR part 300 to read as follows:

    Authority:  5 U.S.C. 552, 2301, 2302, 3301, and 3302; E.O. 
10577, 3 CFR 1954-1958 Comp., page 218, unless otherwise noted. 
Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 7204, 
and 7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803, E.O. 13087; 
and E.O. 13152. Secs. 300.401 through 300.408 also issued under 5 
U.S.C. 1302(c). Secs. 300.501 through 300.507 also issued under 5 
U.S.C. 1103(a)(5). Sec. 300.603 also issued under 5 U.S.C. 1104.


0
2. Revise Sec.  300.102(c) to read as follows:


Sec.  300.102  Policy.

* * * * *
    (c) Be developed and used without discrimination on the basis of 
race, color, religion, sex (including pregnancy and gender identity), 
national origin, age (as defined by the Age Discrimination in 
Employment Act of 1967, as amended), disability, genetic information 
(including family medical history), marital status, political 
affiliation, sexual orientation, labor organization affiliation or 
nonaffiliation, status as a parent, or any other non-merit-based 
factor, or retaliation for exercising rights with respect to the 
categories enumerated above, where retaliation rights are available.
* * * * *
0
3. Revise Sec.  300.103(c) to read as follows:


Sec.  300.103  Basic requirements.

* * * * *
    (c) Equal employment opportunity and prohibited forms of 
discrimination. An employment practice must not discriminate on the 
basis of race, color, religion, sex (including pregnancy and gender 
identity), national origin, age (as defined by the Age Discrimination 
in Employment Act of 1967, as amended), disability, genetic information 
(including family medical history), marital status, political 
affiliation, sexual orientation, labor organization affiliation or 
nonaffiliation, status as a parent, or any other non-merit-based 
factor, or retaliation for exercising rights with respect to the 
categories enumerated above, where retaliation rights are available. 
Employee selection procedures shall meet the standards established by 
the ``Uniform Guidelines on Employee Selection Procedures,'' where 
applicable.
0
4. Revise Sec.  300.104(c)(1) to read as follows:


Sec.  300.104  Appeals, grievances and complaints.

* * * * *
    (c) Complaints and grievances to an agency. (1) A candidate may 
file a complaint with an agency when he or she believes that an 
employment practice that was applied to him or her and that is 
administered by the agency discriminates against him or her on the 
basis of race, color, religion, sex (including pregnancy and gender 
identity), national origin, age (as defined by the Age Discrimination 
in Employment Act of 1967, as amended), disability, genetic information 
(including family medical history), or retaliation for exercising 
rights with respect to the categories enumerated above, where 
retaliation rights are available. The complaint must be filed and 
processed in accordance with the agency EEO procedures, as appropriate.
* * * * *

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0
5. Revise the authority citation for part 315 to read as follows:

    Authority:  5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O. 
10577, 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; and 
E.O. 13162. Secs. 315.601 and 315.609 also issued under 22 U.S.C. 
3651 and 3652. Secs. 315.602 and 315.604 also issued under 5 U.S.C. 
1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 
also issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606 
also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 
315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also issued 
under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued 
under 5 U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C. 
3304(f). Sec. 315.612 also issued under E.O. 13473. Sec. 315.708 
also issued under E.O.13318, 3 CFR, 2004 Comp. p. 265. Sec. 315.710 
also issued under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Subpart I 
also issued under 5 U.S. C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p. 
264.


0
6. Revise Sec.  315.806(d) to read as follows:


Sec.  315.806  Appeal rights to the Merit Systems Protection Board.

* * * * *
    (d) An employee may appeal to the Board under this section a 
termination that the employee alleges was based on discrimination 
because of race, color, religion, sex (including pregnancy and gender 
identity), national origin, age (as defined by the Age Discrimination 
in Employment Act of 1967, as amended), or disability. An appeal 
alleging a discriminatory termination may be filed under this 
subsection only if such discrimination is raised in addition to one of 
the issues stated in paragraph (b) or (c) of this section.

PART 335--PROMOTION AND INTERNAL PLACEMENT

0
7. Revise the authority citation for 5 CFR part 335 to read as follows:

    Authority:  5 U.S.C. 2301, 2302, 3301, 3302, 3330; E.O. 10577, 
E.O. 11478, 3 CFR 1966-1970 Comp., page 803, unless otherwise noted, 
E.O. 13087; and E.O. 13152, 3 CFR 1954-58 Comp., p. 218; 5 U.S.C. 
3304(f), and Pub. L. 106-117.


0
8. Revise Sec.  335.103(b)(1) to read as follows:


Sec.  335.103  Agency promotion programs.

* * * * *
    (b) Merit promotion requirements--(1) Requirement 1. Each agency 
must establish procedures for promoting employees that are based on 
merit and are available in writing to candidates. Agencies must list 
appropriate exceptions, including those required by

[[Page 43923]]

law or regulation, as specified in paragraph (c) of this section. 
Actions under a promotion plan--whether identification, qualification, 
evaluation, or selection of candidates--must be made without regard to 
race, color, religion, sex (including pregnancy and gender identity), 
national origin, age (as defined by the Age Discrimination in 
Employment Act of 1967, as amended), disability, genetic information 
(including family medical history), marital status, political 
affiliation, sexual orientation, labor organization affiliation or 
nonaffiliation, status as a parent, or any other non-merit-based 
factor, unless specifically designated by statute as a factor that must 
be taken into consideration when awarding such benefits, or retaliation 
for exercising rights with respect to the categories enumerated above, 
where retaliation rights are available, and must be based solely on 
job-related criteria.
* * * * *

PART 410--TRAINING

0
9. Revise the authority citation for 5 CFR part 410 to read as follows:

    Authority:  5 U.S.C. 1103(c), 2301, 2302, 4101, et seq.; E.O. 
11348, 3 CFR, 1967 Comp., p. 275, E.O. 11478, 3 CFR 1966-1970 Comp., 
page 803, unless otherwise noted, E.O. 13087; and E.O. 13152.


0
10. Revise Sec.  410.302(a)(1) to read as follows:


Sec.  410.302  Responsibility of the head of an agency.

    (a) Specific responsibilities. (1) The head of each agency must 
prescribe procedures as are necessary to ensure that the selection of 
employees for training is made without regard to race, color, religion, 
sex (including pregnancy and gender identity), national origin, age (as 
defined by the Age Discrimination in Employment Act of 1967, as 
amended), disability, genetic information (including family medical 
history), marital status, political affiliation, sexual orientation, 
labor organization affiliation or nonaffiliation, status as parent, or 
any other non-merit-based factor, unless specifically designated by 
statute as a factor that must be taken into consideration when awarding 
such benefits, or retaliation for exercising rights with respect to the 
categories enumerated above, where retaliation rights are available, 
and with proper regard for their privacy and constitutional rights as 
provided by merit system principles set forth in 5 U.S.C. 2301(b)(2).
* * * * *

PART 537--REPAYMENT OF STUDENT LOANS

0
11. Revise the authority citation for 5 CFR part 537 to read as 
follows:

    Authority: 5 U.S.C. 2301, 2302, and 5379(g); E.O. 11478, 3 CFR 
1966-1970 Comp., page 803, unless otherwise noted, E.O. 13087; and 
E.O. 13152.


0
12. Revise Sec.  537.105(d) to read as follows:


Sec.  537.105  Criteria for payment.

* * * * *
    (d) Selection. When selecting employees (or job candidates) to 
receive student loan repayment benefits, agencies must ensure that 
benefits are awarded without regard to race, color, religion, sex 
(including pregnancy and gender identity), national origin, age (as 
defined by the Age Discrimination in Employment Act of 1967, as 
amended), disability, genetic information (including family medical 
history), marital status, political affiliation, sexual orientation, 
labor affiliation or nonaffiliation, status as a parent, or any other 
non-merit-based factor, unless specifically designated by statute as a 
factor that must be taken into consideration when awarding such 
benefits, or retaliation for exercising rights with respect to the 
categories enumerated above, where retaliation rights are available.

PART 900--INTERGOVERNMENTAL PERSONNEL ACT PROGRAMS

Subpart F--Standards for a Merit System of Personnel Administration

0
13. Revise the authority citation for 5 CFR part 900, subpart F, to 
read as follows:

    Authority:  42 U.S.C. 4728, 4763; E.O. 11589, 3 CFR part 557 
(1971-75 Compilation); 5 U.S.C. 2301, 2302, E.O. 11478, 3 CFR 1966-
1970 Comp., page 803, unless otherwise noted, E.O. 13087; and E.O. 
13152.


0
14. Revise Sec.  900.603(e) to read as follows:


Sec.  900.603  Standards for a merit system of personnel 
administration.

* * * * *
    (e) Assuring fair treatment of applicants and employees in all 
aspects of personnel administration without regard to race, color, 
religion, sex (including pregnancy and gender identity), national 
origin, age (as defined by the Age Discrimination in Employment Act of 
1967, as amended), disability, genetic information (including family 
medical history), marital status, political affiliation, sexual 
orientation, status as parent, labor organization affiliation or 
nonaffiliation in accordance with chapter 71 of title V, or any other 
non-merit-based factor, or retaliation for exercising rights with 
respect to the categories enumerated above, where retaliation rights 
are available, and with proper regard for their privacy and 
constitutional rights as citizens. This ``fair treatment'' principle 
includes compliance with the Federal equal employment opportunity and 
nondiscrimination laws.
* * * * *
[FR Doc. 2014-17802 Filed 7-25-14; 8:45 am]
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