Procedures for Previously Exempt State and Local Government Employee Complaints of Employment Discrimination Under Section 304 of the Government Employee Rights Act of 1991, 47850-47853 [2024-12029]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 89, Number 108 (Tuesday, June 4, 2024)]
[Rules and Regulations]
[Pages 47850-47853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12029]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1603

RIN 3046-AB09


Procedures for Previously Exempt State and Local Government 
Employee Complaints of Employment Discrimination Under Section 304 of 
the Government Employee Rights Act of 1991

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC or 
Commission) is amending its existing regulations by which State and 
local government employees who were previously exempt from coverage 
under title VII of the Civil Rights Act of 1964 (title VII) may bring 
claims of employment discrimination pursuant to the Government Employee 
Rights Act of 1991 (GERA). The amendments explicitly provide for 
digital transmission of documents, update the regulation based upon the 
text of other regulations or statutes, and make a number of editorial 
revisions to improve clarity and correct errors.

DATES: This final rule is effective on July 5, 2024.

FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal 
Counsel, at (202) 921-3240 or [email protected]. Requests for this 
document in an alternative format should be made to the Office of 
Communications and Legislative Affairs at (202) 921-3191 (voice), (800) 
669-6820 (TTY), or (844) 234-5122 (ASL Video Phone).

SUPPLEMENTARY INFORMATION: On May 19, 2023, the EEOC published a notice 
of proposed rulemaking (NPRM) in the Federal Register (88 FR 32154) 
seeking public comment on proposed revisions to the EEOC's procedural 
regulations under section 304 of GERA, which extends protections 
against employment discrimination based on race, color, religion, sex, 
national origin, age, and disability to previously exempt State and 
local government employees. 42 U.S.C. 2000e-16c. The revisions are 
intended to serve several purposes. First, recognizing that the EEOC 
has expanded its use of technology in charge and complaint processing 
and has implemented a digital system for charges and complaints of 
discrimination filed with the EEOC, the revisions explicitly provide 
for digital transmission of documents in the GERA complaint process. 
Second, they include a few changes to citations to other regulations or 
statutes, as well as cross-references to sections within part 1603. 
Third, they serve to correct errors and make other clarifying changes. 
Public comments were due in response to the NPRM on or before July 18, 
2023.
    The EEOC received two comments in response to the NPRM, one 
anonymous and another from an advocacy organization. The comments are 
available for review at the Federal eRulemaking Portal at https://www.regulations.gov. The anonymous comment was supportive of the 
proposed changes, while the comment from the organization took issue 
with the proposal in the NPRM to remove paragraphs (b) and (c) of Sec.  
1603.107. The NPRM explained that the agency proposed to remove the two 
paragraphs in an effort to further standardize the EEOC's various 
procedural regulations, noting that similar language had been 
previously removed from 29 CFR part 1601 in part for the same reason. 
The comment argued that because the GERA complaint procedure differs 
from the administrative charge procedures under title VII and other 
statutes enforced by the agency, the agency's stated rationale for 
removal of these two paragraphs was inappropriate. The comment notes 
that under the title VII administrative charge process, the EEOC 
investigates and

[[Page 47851]]

either dismisses the charge with a determination that there is no cause 
to believe discrimination occurred or finds cause and endeavors to 
resolve the charge through conciliation and possibly litigation. In the 
case of a dismissal or a cause finding where the EEOC declines to 
litigate, the aggrieved party receives the right to file a private 
civil action. The comment then characterizes the GERA administrative 
complaint process, by contrast, as assigning the complaint to an 
administrative law judge for resolution without the opportunity for the 
EEOC to file suit or issue the complainant a right to private suit.
    While the comment correctly notes that a portion of the 
administrative GERA process is different from the charge filing process 
under title VII and other statutes, it ignores that prior to assignment 
to an administrative law judge, the EEOC may conduct an investigation 
into the complaint, and that investigative phase of the GERA 
administrative process is largely based upon the administrative process 
for charges in 29 CFR part 1601 for other statutes enforced by the 
agency. Before referring a GERA complaint to an administrative law 
judge, EEOC staff ``may conduct [an] investigation using an exchange of 
letters, interrogatories, fact-finding conferences, interviews, on-site 
visits or other fact-finding methods that address the matters at 
issue.'' 29 CFR 1603.109(a). EEOC staff also are authorized to issue 
administrative subpoenas using the procedures in 29 CFR part 1601. Due 
to the similarity of the investigative practices utilized in GERA 
complaints and charges under title VII and other statutes, 
standardizing the procedural regulations covering these investigative 
practices will promote consistency and efficiency, and will minimize 
confusion among the EEOC personnel charged with conducting these 
investigations. Therefore, upon careful consideration of the comment 
from the advocacy organization, the EEOC declines to make changes to 
its proposed revisions.
    While the Commission is not making changes to the proposed 
revisions based upon the public comments received in response to the 
NPRM, the final rule does reflect a terminology update. After 
publication of the NPRM on May 19, 2023, and after the Pregnant Workers 
Fairness Act (PWFA) became effective on June 27, 2023, the EEOC on 
February 14, 2024, published an interim final rule in the Federal 
Register (89 FR 11167) amending the agency's procedural regulations, 
including those in part 1603, to add references to the PWFA and its 
terms. One such reference was added to Sec.  1603.102(a), and this 
final rule reflects that amendment.

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 and 
does not require an assessment of potential costs and benefits under 
section 6(a)(3) of the order.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to 
rulemakings in which an agency creates a new paperwork burden on 
regulated entities or modifies an existing burden. This rule contains 
no new information collection requirements for the public, and 
therefore it will create no new paperwork burdens or modifications to 
existing burdens that are subject to review by the Office of Management 
and Budget under the PRA.

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 does not affect any small business entities. The 
regulation affects only certain employees of State or local 
governments. 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, and 
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. To the extent that it affects small 
governments by allowing for digital transmission of documents, it will 
save resources of those entities. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Congressional Review Act

    This regulation is a rule subject to the Congressional Review Act 
(CRA), but not a ``major'' rule that cannot take effect until 60 days 
after it is published in the Federal Register. Therefore, the EEOC will 
submit this rule and other required information to the U.S. Senate, the 
U.S. House of Representatives, and the Comptroller General of the 
United States prior to the effective date of the rule.

List of Subjects in 29 CFR Part 1603

    Administrative practice and procedure, Equal employment 
opportunity, Intergovernmental relations, Investigations, State and 
local governments.

    Accordingly, for the reasons set forth in the preamble, the Equal 
Employment Opportunity Commission amends 29 CFR part 1603 as follows:

PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL 
GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER 
SECTION 304 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991

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

    Authority:  42 U.S.C. 2000e-12 and-16c; 42 U.S.C. 2000ff-6(b); 
42 U.S.C. 2000gg-2(d).

0
2. Amend Sec.  1603.102 by:
0
a. Revising paragraphs (a), (b), (c) introductory text, (c)(1) and (2), 
(c)(4), and the last sentence of paragraph (d); and
0
b. In paragraph (e), in the first sentence, removing the commas.
    The revisions 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; 
genetic information; or pregnancy, childbirth, or related medical 
conditions; 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 those Federal laws, may file a complaint not later than 180 days 
after the occurrence of the alleged discrimination or retaliation.
    (b) Where to file a complaint. A complaint may be filed using the 
Commission's designated digital systems, in person, by facsimile, or by 
mail to any Commission office or with any designated agent or 
representative of the Commission. The addresses of the Commission's 
offices may be found at www.eeoc.gov.
    (c) Contents of a complaint. A complaint shall be in writing and 
signed and shall be verified as defined in Sec.  1601.3(a). In 
addition, each complaint should contain the following:
    (1) The full name and contact information of the person making the 
complaint;
    (2) The full name and contact information of the person, 
governmental

[[Page 47852]]

entity, or political subdivision against whom the complaint is made, if 
known (hereinafter referred to as the respondent);
* * * * *
    (4) A statement disclosing whether proceedings involving the 
alleged unlawful employment practice have been commenced before a State 
or local Fair Employment Practices (FEP) agency charged with the 
enforcement of fair employment practice laws and, if so, the date of 
such commencement and the name of the agency.
    (d) * * * A complaint that has been amended after it was referred 
(see Sec.  1603.103) shall not be again referred to the appropriate 
State or local FEP agency.
* * * * *


Sec.  1603.103  [Amended]

0
3. Amend Sec.  1603.103(b) by removing the comma.

0
4. Revise Sec.  1603.106 to read as follows:


Sec.  1603.106  Computation of time generally and for timely receipt by 
the Commission.

    (a)(1) All time periods in this part that are stated in terms of 
days are calendar days unless otherwise stated.
    (2) The first day counted shall be the day after the event from 
which the time period begins to run, and the last day of the period 
shall be included unless it falls on a Saturday, Sunday, or Federal 
holiday, in which case the period shall be extended to include the next 
business day.
    (3) All time limits in this part are subject to waiver, estoppel, 
and equitable tolling.
    (b) Documents submitted to the Commission are deemed timely 
received as follows:
    (1) A document submitted by digital transmission, by facsimile not 
exceeding 20 pages, or by personal delivery or commercial delivery 
service shall be deemed timely if it is received before the expiration 
of the applicable filing period. A document submitted by digital means 
shall be deemed received on the date the EEOC's designated digital 
system records the upload.
    (2) A document submitted by mail shall be deemed timely if it is 
postmarked before the expiration of the applicable filing period or, in 
the absence of a legible postmark, if it is received within 5 days of 
the expiration of the applicable filing period.
    (c) For the purposes of this part, the terms file, serve, receive, 
issue, transmit, send, and any other word forms of these terms, such as 
filing or serving, when used to describe transmission of documents, 
shall include all forms of digital transmission.

0
5. Revise Sec.  1603.107 to read as follows:


Sec.  1603.107  Dismissals of complaints.

    (a) Where a complaint is not timely filed or, except as described 
in Sec.  1603.102(e), fails to state a claim under this part, the 
Commission shall dismiss the complaint.
    (b) Written notice of dismissal pursuant to paragraph (a) of this 
section shall be issued to the complainant and the respondent. The 
Commission hereby delegates authority to dismiss complaints to the 
Director, Office of Field Programs or the Director's designees, and to 
District Directors or their designees.
    (c) A complainant who is dissatisfied with a dismissal issued 
pursuant to this section may appeal to the Commission in accordance 
with the procedures in subpart C of this part.


Sec.  1603.108  [Amended]

0
6. Amend Sec.  1603.108 by:
0
a. In paragraph (c), adding a comma after the words ``employees of the 
Commission''; and
0
b. In paragraph (d), removing the number ``584'' and adding in its 
place the number ``574''.


Sec.  1603.109  [Amended]

0
7. Amend Sec.  1603.109 by:
0
a. In paragraph (a), adding the word ``an'' before the word 
``investigation'' and adding a comma after the word ``visits''; and
0
b. In paragraph (b), in the first sentence, adding a comma after the 
words ``the production of evidence''.


Sec.  1603.201  [Amended]

0
8. Amend Sec.  1603.201 by:
0
a. In paragraph (a), adding a comma after the words ``of this section 
or'';
0
b. In paragraph (c), removing the words ``representatives or 
witnesses'' and adding in their place the words ``representatives, and 
their witnesses''.

0
9. Amend Sec.  1603.202 by, in paragraph (a), adding a comma after the 
word ``place'' and revising paragraph (b) to read as follows:


Sec.  1603.202  Administrative law judge.

* * * * *
    (b) Enter a default decision against a party failing to appear at a 
hearing unless the party shows good cause by contacting the 
administrative law judge either prior to the hearing or within 2 days 
after the scheduled hearing and presenting arguments as to why the 
party or the party's representative could not appear; and
* * * * *

0
10. Revise Sec.  1603.203 to read as follows:


Sec.  1603.203  Unavailability or withdrawal of administrative law 
judges.

    (a) In the event the administrative law judge designated to conduct 
the hearing becomes unavailable or withdraws from the adjudication, 
another administrative law judge may be designated for the purpose of 
further hearing or issuing a decision on the record as made, or both. 
At any time administrative law judges deem themselves disqualified, 
they may withdraw from an adjudication.
    (b) Prior to issuance of a decision on the complaint, any party may 
move that the administrative law judge withdraw on the grounds of 
personal bias or other disqualification by filing with the 
administrative law judge an affidavit setting forth in detail the 
matters alleged to constitute grounds for withdrawal promptly upon 
discovery of the alleged facts. The administrative law judge shall rule 
upon the motion for withdrawal. If the administrative law judge 
concludes that the motion was filed promptly and has merit, the 
administrative law judge shall immediately withdraw from the 
adjudication. If the administrative law judge does not withdraw, the 
adjudication shall proceed.

0
11. Amend Sec.  1603.204 by revising the last sentence of paragraph (a) 
and paragraphs (b) and (d) to read as follows:


Sec.  1603.204  Ex parte communications.

    (a) * * * Communications between the administrative law judge or 
Commission personnel and one party concerning the status of the case, 
the date of a hearing, the method of transmitting evidence to the 
Commission, and other purely procedural questions are permitted.
    (b) ``Decision-making personnel of the Commission'' includes 
members of the Commission and their staffs as well as personnel in the 
Office of Federal Operations but does not include investigators and 
intake staff.
* * * * *
    (d) Where it appears that a party has engaged in prohibited ex 
parte communications, that party may be required to show cause why, in 
the interest of justice, the party's claim or defense should not be 
dismissed, denied, or otherwise adversely affected.


Sec.  1603.205  [Amended]

0
12. Amend Sec.  1603.205(b) by removing the comma after the words ``in 
the adjudication''.

[[Page 47853]]

Sec.  1603.206  [Amended]

0
13. Amend Sec.  1603.206 by:
0
a. In paragraph (a), in the first sentence:
0
i. Removing the words ``his or her'' and adding in their place the 
words ``the administrative law judge's'';
0
ii. Removing the comma after the words ``common parties''; and
0
iii. Adding the word ``common'' before the word ``factual''; and
0
b. In paragraph (b), removing the words ``his or her'' and adding in 
their place the words ``the administrative law judge's'' and adding a 
comma after the word ``claims''.


Sec.  1603.207  [Amended]

0
14. Amend Sec.  1603.207 by:
0
a. In paragraph (b), adding the word ``relevant'' before the words 
``facts or reasons''; and
0
b. In paragraph (c), removing the text ``15 days after the filing'' and 
adding in its place the text ``10 business days after service''.


Sec.  1603.208  [Amended]

0
15. Amend Sec.  1603.208 by:
0
a. In paragraph (b):
0
i. In the first sentence, removing the text ``ten (10)'' and adding in 
its place the number ``10''; and
0
ii. In the last sentence, removing the words ``judge, in his or her 
discretion, orders'' and adding in their place the words ``judge 
exercises discretion to order''; and
0
b. In paragraph (c):
0
i. In the third sentence, adding the words ``or other digital means'' 
after the word ``telephone'';
0
ii. In the last sentence, removing the text ``five (5)'' and adding in 
its place the number ``5'' and adding a comma after the word 
``vacate''; and
0
c. In paragraph (d), removing the words ``dilatory, repetitive or 
frivolous motions'' and adding in their place the words ``motions that 
are repetitive, frivolous, or intended to delay the proceedings''.

0
16. Revise Sec.  1603.209 to read as follows:


Sec.  1603.209  Filing and service.

    (a) Unless otherwise ordered by the administrative law judge, a 
signed original of each motion, brief, or other document shall be filed 
with the administrative law judge, with a certificate of service 
indicating that a copy has been sent to all other parties and stating 
the date and manner of service. Digitally submitted documents may be 
electronically signed. All documents presented in hard copy shall be on 
standard size (8\1/2\ x 11) paper. Each document filed shall be clear 
and legible.
    (b) Filing and service shall be made by first class mail or other 
more expeditious means of delivery, including, at the discretion of the 
administrative law judge, by facsimile, digital transmission, or other 
means. The administrative law judge may exercise discretion to limit 
the number of pages that may be filed or served by facsimile. Service 
shall be made on a party's representative or, if not represented, on 
the party.
    (c) Every document shall contain a caption including the parties' 
names, the complaint number or docket number assigned to the matter, a 
designation of the type of filing (e.g., motion, brief, etc.), and the 
filing person's signature and contact information.


Sec.  1603.210  [Amended]

0
17. Amend Sec.  1603.210(b) by adding a comma after the word 
``admission''.


Sec.  1603.211  [Amended]

0
18. Amend Sec.  1603.211 by:
0
a. In paragraph (a), in the last sentence, adding the word ``state'' 
before the words ``the date and time''; and
0
b. In paragraph (b), in the second sentence, adding the word ``also'' 
before the words ``be served upon''.


Sec.  1603.213  [Amended]

0
19. Amend Sec.  1603.213 by:
0
a. In paragraph (a) introductory text, adding the words ``either 
independently or'' before the words ``upon motion of a party'', and 
removing the words ``or upon his or her own motion'';
0
b. In paragraph (a)(2), removing the word ``ruling'' and adding in its 
place the word ``appeal'', and removing the word ``or'' and adding in 
its place the word ``and'';
0
c. In paragraph (a)(3), removing the word ``ruling'' and adding in its 
place the word ``appeal'';
0
d. In paragraph (b) introductory text, removing the text ``ten (10)'' 
and adding in its place the number ``10''; and
0
e. In paragraph (c), in the last sentence, removing the text ``, within 
his or her discretion,''.


Sec.  1603.214  [Amended]

0
20. Amend Sec.  1603.214 by adding the word ``that'' before the words 
``the rules on hearsay''.


Sec.  1603.215  [Amended]

0
21. Amend Sec.  1603.215 by:
0
a. In paragraph (a), in the first sentence, removing the words 
``mechanically or stenographically reported'' and adding in their place 
the words ``audio or video recorded, stenographically reported, or 
both'' and in the last sentence, removing the words ``and the public''; 
and
0
b. In paragraph (b), removing the comma after the words ``upon motion'' 
and removing the text ``ten (10)'' and adding in its place the number 
``10''.


Sec.  1603.217  [Amended]

0
22. Amend Sec.  1603.217(b), in the last sentence, adding a semicolon 
after the word ``discovery''.


Sec.  1603.301  [Amended]

0
23. Amend Sec.  1603.301 by removing the citation ``Sec.  1613.213'' 
and adding in its place the citation ``Sec.  1603.213''.

0
24. Amend Sec.  1603.302 by revising paragraph (b) and adding paragraph 
(c) to read as follows:


Sec.  1603.302  Filing an appeal.

* * * * *
    (b) An appeal shall be filed with the Director, Office of Federal 
Operations, Equal Employment Opportunity Commission, by mail to P.O. 
Box 77960, Washington, DC 20013, by personal delivery or commercial 
delivery service, by digital transmission, or by facsimile to (202) 
663-7022.
    (c) The appellant shall furnish a copy of the appeal to the 
opposing party at the same time it is filed with the Commission. In or 
attached to the appeal to the Commission, the appellant must certify 
the date and method by which service was made on the opposing party.


Sec.  1603.303  [Amended]

0
25. Amend Sec.  1603.303 by:
0
a. In paragraph (c) introductory text, in the second sentence, adding a 
comma after the word ``order'';
0
b. In paragraph (c)(2), adding a comma after the word ``regulation''; 
and
0
c. In paragraph (e), removing the words ``the appeal and'' and removing 
the citation ``Sec.  1603.209'' and adding in its place the citation 
``Sec.  1603.302(b) and (c)''.


Sec.  1603.306  [Amended]

0
26. Amend Sec.  1603.306 by removing the comma after the word 
``resides''.

    For the Commission,
Charlotte A. Burrows,
Chair.
[FR Doc. 2024-12029 Filed 6-3-24; 8:45 am]
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