Notice of Final Equal Employment Opportunity Program Circular, 67047-67051 [2016-23505]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Notices]
[Pages 67047-67051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23505]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket Number: FTA-2016-0013]


Notice of Final Equal Employment Opportunity Program Circular

AGENCY: Federal Transit Administration, DOT.

ACTION: Notice of availability of final Circular.

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SUMMARY: The Federal Transit Administration (FTA) has placed in the 
docket and on its Web site guidance in the form of a Circular to assist 
recipients in complying with various Equal Employment Opportunity 
regulations and statutes. The purpose of this Circular is to provide 
recipients of FTA financial assistance with instructions and guidance 
necessary to carry out the U.S. Department of Transportation's Equal 
Employment Opportunity regulations. FTA is updating its Equal 
Employment Opportunity Circular to clarify the requirements for 
compliance.

DATES:  Effective Date: The final Circular becomes effective October 
31, 2016.

FOR FURTHER INFORMATION CONTACT: For program questions, Anita Heard, 
Office of Civil Rights, Federal Transit Administration, 1200 New Jersey 
Avenue SE., Room E54-306, Washington, DC 20590, phone: (202) 493-0318, 
or email, anita.heard@dot.gov. For legal questions, Bonnie Graves, 
Office of Chief Counsel, 90 Seventh Street, Suite 15-300, San 
Francisco, CA 94103, phone: (202) 366-4011, fax: (415) 734-9489, or 
email, bonnie.graves@dot.gov.

SUPPLEMENTARY INFORMATION: This notice provides a summary of the final 
changes to the EEO Circular and responses to comments. The final 
Circular itself is not included in this notice; instead, an electronic 
version may be found on FTA's Web site, at www.transit.dot.gov, and in 
the docket, at www.regulations.gov. Paper copies of the final Circular 
may be obtained by contacting FTA's Administrative Services Help Desk, 
at (202) 366-4865.

Table of Contents

I. Overview
II. Chapter-by-Chapter Analysis
    A. Chapter 1--Introduction and Applicability

[[Page 67048]]

    B. Chapter 2--EEO Program Requirements
    C. Chapter 3--EEO Compliance Oversight, Complaints, and 
Enforcement
    D. Attachments

I. Overview

    FTA is updating its EEO Circular to clarify what recipients must do 
to comply with Titles VI and VII of the Civil Rights Act of 1964, Title 
II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 49 
U.S.C. Chapter 53 (Federal Transit law), other Federal civil rights 
statutes, and the U.S. Department of Transportation (DOT) regulations 
in 49 CFR part 21.
    FTA issued a notice of availability of the proposed Circular and a 
request for comments in the Federal Register (81 FR 11348) on March 3, 
2016. The comment period closed May 2, 2016. We received comments from 
19 entities, including transit agencies, State DOTs, individuals, and 
the American Public Transportation Association. In addition, in 
accordance with Executive Order 12067, FTA coordinated development of 
this final Circular with the Equal Employment Opportunity Commission 
(EEOC). We have made clarifying edits in response to EEOC comments on 
the Circular. This notice addresses comments received and explains 
changes we made to the Circular in response to comments.

II. Chapter-by-Chapter Analysis

General Comments

    The Circular is organized topically. Each chapter begins with an 
introduction and is divided into sections and subsections. The 
organizational structure includes the text of the guidance, followed by 
a clearly delineated discussion section (as needed), which provides the 
means of complying with the law, as well as relevant good practices.
    One commenter requested a clarification of items presented as 
``good practices.'' The commenter expressed concern that the good 
practices might form the basis for a deficiency finding in a future FTA 
oversight review. To address this concern we added a statement at the 
beginning of chapter 1: ``Good practices, while encouraged, are not 
requirements. Agencies that do not utilize these practices are not 
subjecting themselves to findings in oversight reviews.''
    One commenter objected to the statement on the cover page of the 
Circular that states, ``FTA reserves the right to update this Circular 
to reflect changes in other revised or new guidance and regulations 
that undergo notice and comment, without further notice and comment on 
this Circular.'' This language appears on the cover page of all FTA 
circulars. In the event a regulatory or other cross-cutting requirement 
has changed, it has changed with a notice and comment process, so there 
is no need for a second notice and comment process in order to update 
the Circular to reflect the change. FTA encourages stakeholders to sign 
up for email updates on FTA's Web site, www.transit.dot.gov.
    One commenter suggested that FTA should monitor recipients more 
closely instead of relying on recipients' certification of compliance. 
FTA conducts reviews of all recipients on a triennial basis, conducts 
specialized EEO reviews, and investigates complaints. In addition, 
recipients' employees have the right to file complaints with the Equal 
Employment Opportunity Commission. Given the remedies available to 
employees, the large number of FTA recipients, and limited FTA 
resources, we believe our level of monitoring recipients for compliance 
is appropriate.

A. Chapter 1--Introduction and Applicability

    Chapter 1 of the Circular is an introductory chapter that reviews 
the organization of the Circular, the authority for establishing the 
Circular, and applicability to recipients.
    One commenter suggested we add ``disability,'' ``veteran status,'' 
and ``genetic information'' to the list of bases on which 
discrimination is prohibited, and we have added those terms in section 
1.2, Organization of this Circular. In section 1.3, Authorities, we 
have added the Equal Pay Act, the Age Discrimination in Employment Act, 
Title I of the Americans with Disabilities Act, Sections 501 and 505 of 
the Rehabilitation Act of 1973, and Title II of the Genetic Information 
Nondiscrimination Act of 2008. In the Definitions section we have made 
clarifying edits to the terms Complainant, Concentration, Disability, 
Discrimination, Disparate Impact, Disparate Treatment, Protected Class, 
and Underutilization. We have added definitions for the terms Four-
fifths Rule, Reasonable Accommodation, Retaliation, and Sex-based 
Discrimination. Finally, we replaced the term Primary Recipient with 
the term Direct Recipient, and replaced the term One-person Rule with 
the term Whole-person Rule.
    FTA requested comments regarding a potential change to the 
threshold for Equal Employment Opportunity Program submission from the 
current standard of recipients with 50 transit-related employees, to 
recipients with 100 transit-related employees. Commenters supported 
this threshold increase, and we have adopted the increased threshold in 
the final Circular. Further, agencies with 50-99 employees will not be 
required to conduct a utilization analysis with goals and timetables or 
to submit an EEO Program to FTA. They will instead prepare and maintain 
an abbreviated EEO Program and provide it to FTA upon request or for 
any State Management Review or Triennial Review. The Circular does not 
apply to transit employers with fewer than 50 employees.
    One commenter asked FTA to clarify the 100 transit-related 
employees threshold and to more clearly define what collateral duties 
include for part-time employees. This information is in section 1.4 of 
the Circular and in a footnote in that section. When calculating the 
total number of transit-related employees, agencies are required to 
include all part-time employees and employees with collateral duties 
that support the transit program. For example, a budget analyst who 
processes payments for the transit program would be considered a 
transit-related employee.
    FTA requested comments on potential changes to the Memorandum of 
Understanding (MOU) between FTA and the Federal Highway Administration 
(FHWA). We received no comments. The Circular has been revised to 
reflect that pursuant to an MOU with FHWA, FHWA and FTA will jointly 
review, monitor, and approve State DOT EEO Programs.

B. Chapter 2--EEO Program Requirements

    Chapter 2 explains the seven required elements of an EEO Program 
for FTA review. The chapter details required language, required 
supporting documentation, the type of analysis that must be conducted, 
and the acceptable methods to report the results of that analysis.
2.1 Frequency of Update
    FTA proposed that EEO Programs be updated and submitted to FTA on a 
triennial basis or as major changes occur in the workforce or 
employment conditions. One commenter suggested FTA add the language, 
``whichever comes first'' at the end of the sentence to clarify that 
FTA requires the EEO Program to be updated at a minimum every three 
years, or sooner if conditions warrant. We have made that change.
    In addition, given that transit agencies must submit data to the 
EEOC every

[[Page 67049]]

other year, we have changed the reporting requirement to FTA to every 
four years. This should lessen the burden on transit agencies and allow 
them to report to EEOC and to FTA in the same year using the same data. 
FTA plans to publish a submission schedule for all agencies with 100 or 
more transit-related employees. In order to get all agencies on a four-
year schedule, some agencies may be required to submit an updated EEO 
Program sooner than they would otherwise have to. FTA will work to 
minimize impacts on agencies as we get all agencies on a new four-year 
schedule.
    FTA proposed removing the following sentence, which appears in the 
1988 Circular: ``At the discretion of FTA Office of Civil Rights, less 
information may be requested where the recipient's previously submitted 
EEO Program has not changed significantly.'' Several commenters 
disagreed with this proposal, asserting a requirement for a full update 
of an EEO Program when there are no significant changes places an 
unnecessary burden on small agencies that are in compliance and have 
limited staff, and is not necessary for agencies with strong EEO 
Programs or EEO Programs that have not changed significantly. In 
response to commenters, we have restored that language.
2.2.1 Statement of Policy
    FTA proposed that agencies would be required to update their EEO 
policy annually or after the naming of a new CEO/GM or EEO Officer. One 
commenter suggested that if there are no changes to the EEO policy, 
there would be no need to update it. We revised the language to require 
a review and update at least every four years, when the EEO Program is 
submitted to FTA, or after the naming of a new CEO/GM or EEO Officer.
2.2.2 Dissemination
    FTA proposed that top management officials would need to meet 
quarterly to discuss the EEO Program and its implementation. Several 
commenters objected to this frequency, asserting it would be overly 
burdensome for the agency, and recommending semiannual or annual 
meetings would be sufficient. We agreed with those comments and revised 
the Circular to reflect that the meetings take place at least 
semiannually.
    In this section, FTA proposed that agencies be required to conduct 
EEO training for all new supervisors or managers within 30 days of 
their appointment. Two commenters suggested this timeframe should be 
extended; one suggested the training take place within six months, and 
one recommended it take place within 90 days. We have revised the 
Circular to require that training for supervisors and managers be 
conducted within 90 days of their appointment.
    FTA proposed that agencies be required to meet with employees of 
protected classes and affinity groups to seek input on EEO Program 
implementation. Two commenters suggested that all employees should be 
invited to provide input on the program implementation, not just 
members of protected classes or affinity groups. We have revised the 
Circular to require meetings with all employees and affinity groups to 
seek input on EEO Program implementation.
2.2.3 Designation of Personnel
    In order to ensure impartiality and independence of the EEO 
Officer, FTA proposed that the EEO Officer would need to be separated 
from human resources officials. Several commenters objected to this 
proposal. The general consensus was that in agencies where the 
administrative staffs are small, separation of duties is impossible. 
One agency asserted that to create an EEO position separate from human 
resources would dilute the department's effectiveness to ensure EEO and 
legal compliance. Others suggested such a separation would cast 
concerns on the ability of the human resources department to protect 
equal employment opportunity. One commenter suggested FTA should not 
attempt to dictate how individual agencies avoid such conflicts of 
interest and that there would be substantial costs involved. Another 
commenter asserted the proposed separation ignored the normal function 
and role of a human resources department--to be knowledgeable about and 
enforce labor and employment laws, regulations and workplace rules--and 
that attempting to carve out functions in a way that is illogical would 
only serve to confuse all employees in the organization. In response, 
we have revised this section to state that in order to maintain the 
independence and integrity of the EEO Officer, it may be necessary to 
separate the function from human resources. Agencies are not required 
to separate EEO and HR. However, in the event the EEO Officer is part 
of HR, we have added language that requires the agency to include in 
its EEO Program a detailed method for eliminating conflicts of interest 
in complaint investigations, including a narrative describing how 
independence and integrity of the EEO process will be achieved and 
maintained.
    Similar to the separation of function between EEO and HR, FTA 
proposed that in order to maintain distance between the investigation 
of EEO complaints and defense of the agency, that the functional unit 
that reviews EEO matters be separate and apart from the functional unit 
that represents the agency in EEO complaints. Several commenters 
objected to this proposal. One commenter expressed concern about the 
phrasing of the language, specifically that attorneys rather than EEO 
Officers would represent an agency at administrative hearings. Another 
commenter expressed concern that the separation could inhibit a 
lawyer's ability to provide legal guidance on EEO requirements or could 
require the creation of two EEO offices, for internal and external 
complaints. Another commenter stated that the EEO Officer is better 
suited to report to a legal office because of the need for advice 
regarding perplexing or difficult EEO matters and the level of 
expertise needed to navigate the numerous EEO laws, regulations, and 
court rulings. In response, we clarified that the attorney who provides 
legal expertise to the EEO Officer in the investigation of a case 
cannot represent the agency in the same EEO case.
    FTA proposed that in order to ensure complaints are investigated 
effectively, those individuals charged with investigating complaints 
must have EEO investigative training. Two commenters requested 
clarification on what would constitute sufficient EEO investigative 
training for EEO Officers. We have revised the Circular to include the 
specific information that should be covered in this training.
    FTA proposed removing the requirement that EEO Officers concur on 
hires and promotions. Several commenters objected to this change. They 
asserted this requirement ensured the EEO Officer was involved in the 
process. They also suggested the removal of this function would 
undermine their ability to be part of the process. Two commenters 
supported the removal of the statement, stating the requirement was 
overly burdensome. We reinstated the statement and provided a sample 
concurrence checklist in an Attachment that clarifies what 
``concurrence'' entails.
2.2.4 Utilization Analysis
    The utilization analysis is a comparative analysis in which the 
female and minority availability for each EEO subgroup is compared with 
the current workforce representation of females and minorities.

[[Page 67050]]

    There was a concern that ``two or more races (not Hispanic or 
Latino)'' is a subcategory that is currently not collected on the EEO-4 
forms. OMB approved the change of the EEO-4 categories to be consistent 
with the EEO-1, including two or more races.
    One commenter was concerned that extending to agencies with fewer 
than 100 transit employees the requirement to complete the FTA's 
electronic database for analysis and utilization of hires, promotions, 
and personnel's applications, without additional financial resources, 
would be extremely burdensome for smaller agencies to complete and 
track. The commenter urged FTA to consider limiting the FTA analysis 
and utilization database submittal only to agencies that meet the 
threshold for the submittal of an EEO Program. In response, we revised 
the Circular to provide that agencies with 50-99 employees will not be 
required to submit a full plan to FTA every four years, and will not be 
required to conduct a utilization analysis.
    Two commenters sought clarification on how to track individuals 
with disabilities and veteran status with no baseline for availability. 
We have included language in section 2.2.6 that states we are not 
asking agencies to set a goal for veterans or persons with disabilities 
based on availability numbers. There is no whole person rule or four-
fifths analysis. The agency can set its own specific aspirational 
goals, but the Circular asks agencies to track raw numbers; for 
example, the number applied, number hired, number applied for 
promotion, and number promoted.
    One commenter requested clarification on setting department/unit/
functional area goals. The Circular states, ``Although FTA requires 
utilization data summarized for each job category, agencies are 
encouraged to compile workforce statistics for each department, job 
category, grade/rank of employee (e.g., Road Supervisor I or II, 
Mechanic A or B, etc.), and job title to include salary ranges and 
principal duties for the jobs in each subcategory.'' We did not revise 
the Circular based on this comment, as the Circular states setting 
goals based on workforce statistics for each department, job category, 
grade/rank of employee is an encouraged good practice. It is not a 
requirement.
2.2.5 Goals and Timetables
    One commenter asserted that setting long-term and short-term goals 
and timetables for each individual minority group, broken down by 
specific racial/ethnic subcategories for men and women, could only be 
achieved by conducting targeted recruitments, which could be perceived 
as discriminatory in California under the Fair Employment and Housing 
Act (FEHA). FTA did not revise the proposal, as the short-term and 
long-term goals are aspirational goals based on identified 
underutilization and the results of the employment practices analysis.
2.2.6 Assessment of Employment Practices
    FTA proposed that agencies be required to describe their efforts to 
locate, qualify, and train employees in protected classes. One 
commenter asserted all employees, not just employees of a protected 
class, should be able to receive training and that any action to 
locate, qualify, and train employees in protected classes could be 
perceived as discriminatory under FEHA. Certainly all employees should 
be able to avail themselves of training; the only documentation FTA 
requires in the EEO Program is those efforts to locate, qualify, and 
train employees in protected classes.
    Another commenter asked for clarification on whether or not test 
validation documentation is required for all candidate selections. As 
clarification, test validation is completed per test, not per 
candidate. The commenter also asked FTA to clarify or remove the 
requirement that agencies provide a narrative of current seniority 
policies and procedures for union and non-union workers. We have 
revised the Circular to provide that agencies must provide a narrative 
for union and non-union workers if the seniority policies are 
different. In order to conduct a qualitative assessment of seniority 
practices to determine any potential disparate impact, a narrative must 
be provided.
    One commenter noted that revising union agreements is a complex 
process that cannot be done unilaterally by an agency. In response, we 
revised the Circular to state, ``When agencies are negotiating or 
amending union agreements, FTA requires agencies to review and revise 
the agreements wherever current provisions are identified as barriers 
to equal employment.'' The commenter further asserted, with regard to 
disciplinary procedures and termination practices, that it would be 
unreasonable to require agencies to use the ``same'' standard for 
determining when a person will be demoted, disciplined, or laid off in 
light of collectively bargained-for procedures and practices, and in 
light of state civil service law provisions governing the appointment, 
promotion and continuance of employment of certain agency employees 
(including layoffs). We have not revised the Circular in response to 
this comment, as the Circular provides for placing employees in 
similarly situated groupings (e.g., subject to the same schedule of 
disciplinary charges) and requires separate analyses for employees 
subject to different disciplinary processes.
2.2.7 Monitoring and Reporting
    FTA proposed that agencies would be required to evaluate their EEO 
Programs at least quarterly. Several commenters objected to meeting 
with management quarterly to discuss the EEO Program and its 
implementation. They asserted it would be overly burdensome for the 
agency. We revised the Circular to reflect the evaluation should take 
place, at a minimum, semiannually.
    Some commenters suggested that unit managers should not have access 
to EEO information and that tracking this information is entirely a 
human resources function. There was also concern that reviewing this 
information with all levels of management could breach confidentiality 
for smaller agencies. The Circular has been revised to say all 
``program'' EEO-related meetings should be discussed. The meetings that 
are conducted with managers are to discuss the agency's progress in 
terms of meeting their EEO Program goals and requirements, not to 
discuss individual EEO complaints.
    One commenter questioned whether FTA is requiring the agency to 
track the agenda and outcome of every single meeting that the EEO 
Officer has with the CEO/GM, with any management official, and with 
human resources, with a concern on resource management. We are revising 
the Circular to provide documentation of meetings where EEO is 
officially discussed; for example, official EEO training and official 
meetings with management to report on EEO Program progress and plans of 
actions. There is no need to document every conversation.
    FTA proposed that one element of a successful EEO Program is to, 
``Produce documentation that supports actions to implement the plan for 
minority and female job applicants or employees and informs management 
of the program's effectiveness.'' One commenter suggested replacing 
``for minority and female'' with ``to improve diversity of.'' FTA did 
not adopt this suggestion. We believe it is important to specifically 
state ``minority and female'' as opposed to the more general ``improve 
diversity,'' in order to ensure agencies are documenting their efforts 
appropriately. FTA proposed that one of the EEO Program attachments 
would be an

[[Page 67051]]

organization chart showing the reporting relationships of all 
positions. One commenter suggested the organizational chart section 
should be revised so that it did not include the names of all 
employees. We have revised the Circular to clarify that only directors, 
department heads, and executive leadership are to be named on the 
organization chart.
    FTA sought comment on how long it would take to develop an EEO 
Program with the requirements set out in chapter 2 of the Circular. FTA 
also sought suggestions from recipients regarding how to use 
information technology to decrease the amount of time it takes to 
develop an EEO Program. One commenter suggested that the Circular has 
new data collection requirements that will require coordination with 
departmental units such as human resources and information technology. 
The commenter sought a 12-month grace period before new statistical 
data is required. As stated above, FTA will be drafting a new schedule 
for quadrennial submission of EEO Programs to FTA. FTA will work with 
agencies that find themselves on the ``earlier'' side of the schedule 
and that may need to update their internal practices in order to 
develop an effective EEO Program.

C. Chapter 3--EEO Compliance Oversight, Complaints, and Enforcement

    One commenter requested additional clarity and definition of 
factors and concerns that may trigger a discretionary review. We 
revised the Circular to clarify the six factors that contribute to the 
selection for a civil rights specialized review.

D. Attachments

    In the proposed Circular, FTA included several Attachments: 
Attachment 1, References; Attachment 2, Sample EEO Policy Statement; 
and Attachment 3, Sample Excel Charts. We did not receive comments on 
any of the Attachments. In response to comments that the EEO Officer 
should concur in the hiring and promotion process, we have added a new 
Attachment, Sample Concurrence Checklist. Additionally, we added a copy 
of the EEO-4 form, Program Submission checklist, EEO Program checklist. 
The Circular now includes: Attachment 1, Sample Policy Statement; 
Attachment 2, Sample Concurrence Checklist; Attachment 3, EEO-4 Form; 
Attachment 4, Sample Employment Practices and Utilization Analysis 
Excel Charts; Attachment 5, EEO Program Submission Checklist; 
Attachment 6, Sample EEO Program Checklist; Attachment 7, References.

Carolyn Flowers,
Acting Administrator.
[FR Doc. 2016-23505 Filed 9-28-16; 8:45 am]
 BILLING CODE 4910-57-P