Federal Sector Equal Employment Opportunity, 6669-6671 [2015-02330]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 80, Number 25 (Friday, February 6, 2015)]
[Proposed Rules]
[Pages 6669-6671]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02330]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AB00


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is issuing an Advance Notice of Proposed Rulemaking 
(``ANPRM'') inviting the public to submit comments regarding the 
Federal sector EEO complaint process. The Commission primarily is 
interested in suggestions that will make the process more efficient and 
user-friendly, and more effective in identifying and redressing 
prohibited employment discrimination.

DATES: Comments and suggestions in response to the Advance Notice of 
Proposed Rulemaking must be received on or before April 7, 2015.

ADDRESSES: You may submit comments, identified by RIN Number, by any of 
the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 663-4114. (There is no toll free FAX number). 
Only comments of six or fewer pages will be accepted via FAX 
transmittal, in order to assure 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 (TTY). (These are not 
toll free numbers).
     Mail: Bernadette Wilson, Acting Executive Officer, 
Executive Secretariat, Equal Employment Opportunity Commission, U.S. 
Equal Employment Opportunity Commission, 131 M Street NE., Washington, 
DC 20507.
     Hand Delivery/Courier: Bernadette Wilson, Acting Executive 
Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, 131 M Street NE., Washington, DC 20507.
    Instructions: The Commission invites comments from all interested 
parties. All comment submissions must include the agency name and the 
Regulatory Information Number (RIN) for this ANPRM. Comments need be 
submitted in only one of the above-listed methods. All comments 
received will be posted without change to https://www.regulations.gov, 
including any personal information you provide.
    Comments: For access to the comments received, go to https://www.regulations.gov. Copies of the received comments also will be 
available for review by pre-arranged appointment at the Commission's 
library, 131 M Street NE., Suite 4NW08R, Washington, DC 20507, between 
the hours of 9:30 a.m. and 5 p.m., from April 7, 2015 until the 
Commission publishes a Notice of Proposed Rulemaking (``NPRM'') 
addressing the Federal sector EEO complaint process.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, (202) 663-4668, or Gary John Hozempa, Senior Staff Attorney, 
(202) 663-4666, or (202) 663-7026 (TTY), Office of Legal Counsel, U.S. 
Equal Employment Opportunity Commission. (These are not toll free 
numbers). Requests for this advance notice in an alternative format 
should be made to the Office of Communications and Legislative Affairs 
at (202) 663-4191 (voice) or (202) 663-4494 (TTY). (These are not toll 
free numbers).

SUPPLEMENTARY INFORMATION: As discussed more fully below, Federal 
sector EEO complaint processing procedures did not originate with EEOC 
in 1979, when EEOC was given oversight authority over the Federal 
sector EEO process. Rather, formal, regulatory procedures first were 
promulgated by the Civil Service Commission (``CSC'') in 1966, codified 
at 5 CFR part 713, and the basic framework contained in those 
procedures was adopted by EEOC in 1979. Although EEOC has revised the 
procedures a number of times, the original structure inherited from the 
CSC--counseling, complaint, investigation, hearing, final agency 
action, and appeal--remains.
    The CSC's complaint processing scheme was not created in a vacuum. 
Rather, the CSC developed its procedures based on those established in 
a series of Executive Orders issued by Presidents Roosevelt through 
Nixon. The first administrative system for resolving Federal sector EEO 
complaints was created in Executive Order (``E.O.'') 8802 (June 25, 
1941). Among other things, U.S. agencies involved in ``defense 
production'' were ordered to administer their programs ``without 
discrimination because of race, creed, color, or national origin.'' The 
Order, as amended by E.O. 9346 (May 27, 1943), established a Committee 
on Fair Employment Practice whose function was to formulate policy, 
promulgate rules and regulations, investigate EEO complaints and make 
findings of fact, conduct hearings, and provide relief when 
appropriate. As can be seen, many of the element's in today's Federal 
sector EEO complaint process were created more than 70 years ago.
    E.O. 9980 (July 26, 1948) expanded the reach of the Federal 
Government's EEO policy to include ``all departments and agencies of 
the executive branch . . .'' The Order created within each agency the 
position of ``Fair Employment Officer'' (``FEO''), the precursor to 
today's Director of Equal Employment Opportunity (``EEO Director''). 
The E.O. also introduced an appeal stage, wherein a complainant could 
appeal the decision of the agency head to the Fair Employment Board 
(``Board'') of the CSC. The Board was empowered to ``make 
recommendations'' to the agency head. The Board also was given the 
authority to promulgate ``necessary'' rules and regulations and 
coordinate EEO policies and procedures among the agencies.
    Over the next 20 years, the CSC's authority over the Federal sector 
EEO process was modified by subsequent Presidents. E.O. 10590 (January 
18, 1955), as amended, explicitly superseded E.O. 9980, abolished the 
CSC's Board, and replaced it with a ``President's Committee.'' The 
position of FEO was replaced with an ``Employment Policy Officer,'' 
who, like a current EEO Director, is ``outside of the division handling 
the personnel matters of the . . . agency'' and ``under the immediate 
supervision of the head of his department or agency.'' A complainant 
could appeal an agency final decision to the President's Committee, 
which could issue an

[[Page 6670]]

advisory opinion. The CSC retained the authority to issue ``necessary'' 
regulations.
    E.O. 11246 (September 24, 1965), as amended, explicitly superseded 
all previous E.O.'s regarding the Federal sector EEO process and 
returned oversight authority to the CSC. In addition, the CSC was 
directed to establish a complaint processing procedure that included 
``at least one impartial review with the executive department or agency 
and [an] appeal to the Civil Service Commission.'' \1\ In response, and 
as noted above, the CSC issued its first formal complaint processing 
regulations in 1966. Selectively adopting procedures from the various 
E.O.'s, CSC's regulations required that a complaint be filed with and 
investigated by the agency alleged to have engaged in discrimination, 
that an agency offer the complainant a hearing, and that the agency 
issue a final decision on the complaint. A complainant could appeal an 
agency's final decision to the CSC. E.O. 11478 (August 8, 1969) 
directed agencies to ``provide access to counseling for employees who 
feel aggrieved and shall encourage the resolution of employee problems 
on an informal basis.'' \2\ Thus, CSC revised its regulations to 
include counseling and informal resolution.
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    \1\ E.O. 11375 (October 13, 1967) added sex as a prohibited 
basis.
    \2\ In subsequent Executive Orders, additional bases of 
discrimination were added to E.O. 11478: handicap and age (E.O. 
12106 (December 28, 1978)); sexual orientation (E.O. 13087 (May 28, 
1998)); status as a parent (E.O. 13152 (May 2, 2000)); and, gender 
identity (E.O. 13672 (July 21, 2014)).
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    In 1972, the Equal Opportunity Act of 1972 was enacted, amending 
Title VII of the Civil Rights Act of 1964. New section 717(a) provided 
that ``all personnel actions affecting employees or applicants for 
employment'' in the executive branch (with some exclusions and 
additions) ``shall be free from any discrimination based on race, 
color, religion, sex, or national origin.'' Importantly, section 717(c) 
gave Federal employees the right to file de novo suit in Federal court 
once administrative remedies had been exhausted. While the Act was 
being debated, some members of Congress criticized the CSC's 
administrative EEO complaint process, noting the conflict of interest 
inherent in an agency investigating itself and determining whether it 
had engaged in prohibited discrimination, and the lack of confidence 
Federal employees had in its effectiveness. See S. Rpt. 92-416 at 14, 
H. Rpt. 92-238 at 23-24. The Senate Report stated that ``[o]ne feature 
of the present equal employment opportunity program which deserves 
special scrutiny by the Civil Service Commission is the complaint 
process.'' Furthermore, one version of section 717(b) transferred 
administrative oversight of the Federal sector EEO complaint process 
from the CSC to EEOC. The final bill, however, retained oversight 
authority in the CSC. In October 1972, the CSC revised its regulations 
at 5 CFR part 713, adding provisions to reflect that a Federal 
complainant who had filed an administrative EEO complaint had the right 
to file a civil action in an appropriate United States District Court.
    The Civil Service Reform Act of 1978 abolished the CSC and created 
in its place the Office of Personnel Management. The Act also created 
the Merit Systems Protection Board (``MSPB''), the Federal Labor 
Relations Authority, and the Office of Special Counsel. Pursuant to the 
Reform Act, Reorganization Plan No. 1 of 1978, and E.O. 12106 (December 
28, 1978), the CSC's functions under section 717 of Title VII were 
transferred to EEOC effective January 1, 1979. At the same time, EEOC 
was given enforcement responsibility regarding the provisions 
applicable to Federal employees contained in the Equal Pay Act of 1963, 
the Age Discrimination in Employment Act of 1967, and the 
Rehabilitation Act of 1973.
    Pursuant to E.O. 12106, EEOC was made ``responsible for directing 
and furthering the implementation of the Policy of the Government of 
the United States to provide equal employment opportunity in Federal 
employment for all employees and applicants for employment * * * and to 
prohibit discrimination in employment because of race, color, religion, 
sex, national origin, handicap, or age.'' The Order directed EEOC, 
``after consultation with all affected departments and agencies,'' to 
``issue such rules, regulations, orders, and instructions and request 
such information from the affected departments and agencies as it deems 
necessary and appropriate to carry out [E.O. 12106].''
    At the time of the transfer of functions from the CSC to EEOC, EEOC 
adopted CSC's complaint processing procedures, only making changes to 
reflect EEOC's oversight authority. Thus, for example, an 
administrative hearing was held before an EEOC ``Complaints Examiner'' 
(now referred to as an Administrative Judge (``AJ'')), and a 
complainant could appeal an agency final decision to EEOC's ``Office of 
Review and Appeals'' (now called the Office of Federal Operations). 
Thus, CSC's basic complaint processing structure--counseling, filing of 
complaint with the agency accused of discrimination, investigation of 
the complaint by that agency, a hearing at complainant's request, an 
agency final decision, and an optional appeal--remained intact.\3\
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    \3\ Although E.O. 12106 revised E.O. 11478 to eliminate the 
counseling and informal resolution language of E.O. 11478, EEOC 
chose not to drop these components when it adopted the CSC 
regulations.
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    EEOC's regulations were codified at 29 CFR part 1613. EEOC amended 
part 1613 in 1980 to authorize agencies to award attorney's fees and 
costs to prevailing complainants. In 1983, EEOC and the MSPB added 
mixed case complaint procedures to their respective regulations, at 29 
CFR part 1613 and 5 CFR part 1201, respectively.
    In 1987, EEOC enacted additional, minor revisions to part 1613. 
Among other things, a provision was added requiring an agency to notify 
an aggrieved person of the election of remedies pertaining to filing an 
EEO complaint, an appeal with MSPB, or a grievance under a collective 
bargaining agreement. Official time for complainants to prepare and 
pursue complaints was addressed. The EEOC's then private sector policy 
statement on remedies and relief was incorporated into the Federal 
sector process.
    In 1992, EEOC issued a final rule abolishing 29 CFR part 1613 
(except with respect to complaints filed before a certain date), and 
replaced it with 29 CFR part 1614. While EEOC made significant changes 
to many parts of the complaint process, the basic structure inherited 
from the CSC remained.
    In 1995, EEOC established a Federal Sector Workgroup which 
evaluated the complaint process and made numerous recommendations for 
reform. The Commission published a Notice of Proposed Rulemaking in 
1998, proposing many of the Workgroup recommendations, including 
requiring alternative dispute resolution (hereinafter ``ADR'') during 
the counseling and investigative stages, and making an AJ decision 
final. In their comments, agencies contended that EEOC could not make 
an AJ decision final because section 717 of Title VII gives an agency 
the right to take final action on an administrative EEO complaint. 
Consequently, the Final Rule, published in 1999, while retaining the 
ADR requirements, provided an agency with the opportunity to issue a 
notice of final action after receiving an AJ decision. That final 
action was not termed a decision, but it allowed an agency to indicate 
whether it would fully implement the decision of the AJ. If not, the 
agency was required to file an appeal with EEOC.

[[Page 6671]]

    EEOC established another Federal Sector Workgroup in 2004, again to 
consider ways in which to improve the Federal sector EEO complaint 
process. The Workgroup failed to reach internal consensus for large 
scale revisions, but did reach agreement on several discrete changes 
that clarified and built upon the improvements made by the last major 
revisions in 1999. The resulting final rule was published on July 25, 
2012. See 77 FR 43498. One revision authorizes EEOC, after it reviews 
an agency program for compliance with EEOC rules and directives, to 
issue a notice to an agency when non-compliance is found and not 
corrected. Another revision allows an agency to seek approval from EEOC 
to conduct a complaint processing pilot project. An AJ's decision on 
the merits of a class complaint was made final in the revised 
regulation, which meant that an agency could implement it or appeal. 
Additionally, there is now a provision which requires an agency that 
has not completed its investigation of a complaint in a timely manner 
to notify the complainant that the investigative period has expired and 
that, as a result, the complainant has an immediate right to request a 
hearing or file a civil action.
    As previously noted, although the Federal sector EEO complaint 
process has undergone various permutations over the last seven decades, 
certain procedures, once introduced, have remained. The Truman 
administration, for example, introduced agency self-investigation and 
the opportunity to appeal an agency decision to an outside entity. The 
Eisenhower administration created the hearing and required an agency to 
appoint an EEO Officer who worked outside the personnel office and was 
under the immediate supervision of the agency head. Under President 
Nixon, pre-complaint counseling was established. Thus, when the CSC 
issued its last regulations in 1972, the Federal sector complaint 
process consisted of a combination of requirements first introduced in 
the various Executive Orders and certain rights provided by section 717 
of Title VII.
    In this regard, when most of the Executive Orders discussed above 
were issued, EEOC either did not exist or did not have oversight 
authority for the Federal sector. Questions that the Commission wishes 
the public to explore and answer in response to this ANPRM are as 
follows:
    1. If EEOC were to create a new Federal sector EEOC complaint 
process, what current elements would you retain or remove, and what new 
elements would you introduce?
    a. With respect to a current element you believe should be 
retained, in what way does that element provide value, efficiency, or 
fairness?
    b. With respect to a current element you believe should be removed, 
how will its removal improve the process for the complainant, the 
agency, or both?
    c. With respect to a new element, why should it be included, and 
how will it improve the process for the complainant, the agency, or 
both?
    2. Should the process include an investigative stage?
    a. Should agency personnel investigate complaints filed against the 
agency?
    b. Should agencies pick from a pool of investigators made up of in-
house personnel from various agencies so that no agency is investigated 
by one of its own investigators?
    c. Should investigators employed by EEOC conduct all 
investigations, similar to the process EEOC uses when an aggrieved 
individual from the private sector files a charge of employment 
discrimination with EEOC?
    3. Should the hearing stage be retained?
    a. If the hearing stage is retained as a matter of right, should 
the administrative hearing take place after an investigation?
    b. If there is a hearing, should the hearing be a continuation of 
the investigative process, as it is now, or should the hearing be 
adversarial in nature, such as those conducted by the MSPB?
    c. Should there be a hearing as of right only as an alternative to 
an investigation?
    d. Should a hearing always be discretionary, and if so, at whose 
discretion?
    4. What time limits should be imposed at various stages of the 
process?
    a. How many days should a complainant have to contact a counselor 
from the date of the alleged discriminatory matter?
    b. How many days should a complainant have to file a complaint 
following the conclusion of counseling?
    c. If there is an investigative stage, within how many days should 
the investigation be completed?
    d. How many days should a complainant and agency have to file an 
appeal from an agency final action?
    5. What standard of review should apply when EEOC considers an 
appeal?
    a. What standard of review should apply when there is a hearing 
decision?
    b. What standard of review should apply when there is only an 
agency decision?
    6. How can the Commission continue to enhance its ability to ensure 
agencies' compliance with Federal sector equal employment opportunity 
requirements and the Federal sector EEO complaint process?
    a. For example, pursuant to 29 CFR 1614.102(e), should the EEOC 
conduct Commission meetings from time to time to review agencies' 
compliance efforts?
    b. Also, for example, as part of the complaint process, should the 
Commissioners from time to time hear arguments on appeals from final 
agency actions?
    c. What value would these and any other related ideas bring to the 
Federal sector complaint process?
    7. When discrimination is found, what enforcement mechanisms can 
EEOC use to ensure agency compliance?
    The above questions are not meant to be exhaustive and, in fact, 
only touch upon the many issues and stages of the current complaint 
process. Therefore, EEOC is interested in any ideas and comments 
regarding all aspects of the process. In this regard, EEOC will 
consider comments that advocate abolition of all or part of the current 
system coupled with ideas for a replacement system, as well as comments 
from those who believe that only a few changes are necessary in order 
to improve the Federal sector complaint process.
    In drafting comments, stakeholders and other members of the public 
should keep in mind the requirements imposed by section 717 of Title 
VII, which cannot be altered or discarded. This means for example, that 
any administrative process must include agency final action on a 
complaint and the opportunity for a complainant to appeal the agency's 
final action to EEOC. Additionally, a complainant's right to file a 
civil action and the time limits applicable to that right cannot be 
changed. Comments advocating that EEOC retain any non-mandated feature 
of the current process should be based on a fresh assessment of the 
extent to which that element has served to advance the policy goals and 
purposes of the EEO statutes.

    For the Commission,

    Dated: January 30, 2015.
Jenny R. Yang,
Chair.
[FR Doc. 2015-02330 Filed 2-5-15; 8:45 am]
BILLING CODE 6570-01-P