Rule2023-18100
Federal Sector Equal Employment Opportunity
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 24, 2023
Effective
August 24, 2023
Issuing agencies
Equal Employment Opportunity Commission
Abstract
The Equal Employment Opportunity Commission ("EEOC" or "Commission") is issuing a final rule revising its Federal sector complaint processing regulations to allow for the digital transmission of equal employment opportunity hearing and appellate documents and to address various uses of the Commission's Electronic Public Portal.
Full Text
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<title>Federal Register, Volume 88 Issue 163 (Thursday, August 24, 2023)</title>
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[Federal Register Volume 88, Number 163 (Thursday, August 24, 2023)]
[Rules and Regulations]
[Pages 57879-57881]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18100]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AB23
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is issuing a final rule revising its Federal sector
complaint processing regulations to allow for the digital transmission
of equal employment opportunity hearing and appellate documents and to
address various uses of the Commission's Electronic Public Portal.
DATES: Effective August 24, 2023.
FOR FURTHER INFORMATION CONTACT: Kathleen Oram, Assistant Legal
Counsel, at (202) 921-2665 or <a href="/cdn-cgi/l/email-protection#ef848e9b87838a8a81c1809d8e82af8a8a808cc1888099"><span class="__cf_email__" data-cfemail="1972786d71757c7c7737766b7874597c7c767a377e766f">[email protected]</span></a>, or Gary J.
Hozempa, Senior Staff Attorney, at (202) 921-2672 or
<a href="/cdn-cgi/l/email-protection#d2b5b3a0abfcbabda8b7bfa2b392b7b7bdb1fcb5bda4"><span class="__cf_email__" data-cfemail="0b6c6a7972256364716e667b6a4b6e6e6468256c647d">[email protected]</span></a>, Office of Legal Counsel, U.S. Equal Employment
Opportunity Commission. Requests for this document in an alternative
format should be made to the EEOC's Office of Communications and
Legislative Affairs at (202) 921-3191 (voice), 1-800-669-6820 (TTY), or
1-844-234-5122 (ASL video phone).
SUPPLEMENTARY INFORMATION:
Introduction
On September 27, 2022, the EEOC published in the Federal Register a
Notice of Proposed Rulemaking (``NPRM'') announcing its intention to
amend 29 CFR part 1614 by authorizing the EEOC, the Office of Federal
Operations (``OFO''), and the EEOC's Administrative Judges (``AJs'') to
issue and receive documents electronically instead of, or in addition
to, using first class U.S. mail (``first class mail''). Currently, 29
CFR 1614.109(i) provides that an AJ ``shall send copies of the hearing
. . . decision to the parties.'' Section 1614.405(a) requires that a
Commission appellate decision be ``transmitted to the complainant and
the agency by first class mail.'' The NPRM proposed authorizing the
Commission to transmit its hearing and appellate decisions, orders, and
related documents to registered complainants through the EEOC
Electronic Public Portal (``Public Portal'' or ``Portal''). It also was
proposed that complainants could file hearing requests, appeals, and
related documents through the Portal. The NPRM further proposed
requiring agencies to notify complainants that they can use the Public
Portal to file hearing requests and appeals. Finally, the NPRM asked
commenters to address when an EEOC decision transmitted through the
Portal should be considered to be received.
The final rule formalizes the current use of electronic
communications between the EEOC and its stakeholders by explicitly
providing for the digital transmission of complaint files, hearing
requests and associated documents, appeals and associated documents,
and Commission decisions. The final rule confirms that the digital
receipt of hearing requests, appeals, Commission hearing and appellate
decisions, and related documents, is equivalent to receipt by first
class mail. Nevertheless, the final rule makes clear that a
complainant's use of the Portal is voluntary.
Thus, for complainants who choose not to establish a Portal
account, or who establish an account but do not agree to receive EEOC
communications only through the Portal, OFO will use first class mail
to communicate with, and send documents to, complainants, even while
transmitting the same documents to agencies via FedSEP (the EEOC's
separate electronic Portal for agency-only use); AJs also will use
email to transmit documents. These same complainants will be able to
file hearing requests, appeals, and related documents through the
current methods available (first class and registered mail, facsimile,
personal delivery, and email).
Comments Generally
The EEOC received five comments about the NPRM, four from
individuals and one from an attorney organization (``organization'').
The commentors generally favor authorizing the EEOC and its AJs to
transmit decisions and orders through the Portal. They also approve of
allowing complainants to use the Portal to transmit hearing and
appellate requests and documents. The organization opposes certain
proposals while it and some of the individuals recommend specific
modifications. Most provided suggestions regarding determining a
receipt date for Portal-transmitted decisions.
Specific Comments and EEOC's Response
Complainant Opt-In To Communicate via the Portal
The NPRM provided that, where a complainant registers with the
Portal, the EEOC will communicate with the complainant only through the
Portal unless and until the complainant informs the EEOC that they want
to receive EEOC documents by first class mail. The organization argues
for a final rule specifying that a complainant will receive documents
electronically only after the complainant affirmatively consents, or
opts-in, to receive documents through the Portal. It further proposes
that, even when providing consent, the complainant should retain the
option to send and receive documents by other methods, such as first
class mail, in addition to receiving these same documents through the
Portal. To this end, the organization proposes that a final rule should
require agencies and the EEOC to provide complainants with relevant
contact information for all filing methods
[[Page 57880]]
during all stages of the complaint process.
The EEOC agrees that complainants who establish Portal accounts
should be given an opportunity to affirmatively declare whether they
agree to receive documents only through the Portal. A functionality
will be added to the Portal for complainants to indicate this
preference. Complainants who do not give their consent will receive OFO
communications through first class mail and AJ communications through
first class mail or email (if they provide an email address). However,
the EEOC does not think it efficient to continue to use first class
mail or other methods of communicating after a complainant
affirmatively agrees to communicate via the Portal. Receipt by OFO of
documents in the same matter through multiple means will complicate OFO
recordkeeping, increase expenses, and cause delays.
Regarding addressing the various ways a complainant may communicate
with an agency, the EEOC declines to implement the organization's
recommendations as they exceed the scope of this rule. The EEOC did not
intend to address in this rulemaking either an agency's communication
methods with a complainant or a complainant's communication methods
with an agency. Absent an opportunity for public comment on these
matters, it is not appropriate to address them in this final rule.
Receipt Date of Decisions Issued via the Portal
As noted earlier, the NPRM specifically asked commenters to suggest
when a decision or other document sent through the Portal should be
deemed to be received by the complainant. Three individuals suggest
that the receipt date should be the date the decision is first accessed
by the complainant, regardless of when it is uploaded to the Portal.
Two of these individuals stated that if the EEOC uses a standard such
as, ``a decision is deemed to be received within X days of when it is
uploaded to the Portal,'' the rule also should state that this
presumption does not apply if the EEOC learns that the decision ``did
not reach the person to be served.''
The organization suggests creating two separate rules regarding
receipt dates, depending on whether only the Portal is used, or email
is used as well. If only email is used, the organization favors a
rebuttable receipt date of seven days from the date of the email. If
only the Portal is used, receipt should be deemed to occur when the
complainant downloads the document. If both means of transmittal are
used, the receipt date should be the date the decision is accessed via
the Portal or email, or seven days after the email is sent, whichever
occurs first.
The EEOC appreciates receiving these suggestions about a receipt
date and concludes that it will address this topic based on these
submissions. The final rule borrows from some of the comments and 29
CFR 1614.604(b), which deems receipt of regular mail to occur within
five days of when a document is mailed. Thus, for Portal, email, and
all other digital communications, the final rule provides that receipt
is deemed to occur when a document is accessed on the Portal or
received via electronic means, or within 5 days of when a document is
uploaded to the Portal or transmitted electronically, whichever occurs
first. Further, 29 CFR 1614.604(c), which allows equitable tolling of
time frames, will apply to all transmissions, digital or otherwise.
Finally, 29 CFR 1614.605(d) provides that receipt of a document is
calculated from the complainant's receipt, unless the complainant is
represented by an attorney, in which case the attorney's receipt
controls. This provision requires no edits to apply to digital
receipts.
Useability of the Portal
The organization discusses difficulties it and its clients have had
with certain features of the Portal. The organization offers a number
of proposed technical enhancements to the Portal designed to make the
Portal more user-friendly. These suggestions, while helpful, are not
the proper subject matter for this final rule. Nevertheless, the EEOC
will continue to work with its stakeholders to improve the
functionality of the Public Portal (and FedSEP).
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 NPRM 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) applies to
rulemakings in which an agency creates a new paperwork burden on
regulated entities or modifies an existing burden. This final rule
contains no new information collection requirements on the public, and
therefore, it creates no new paperwork burdens or modifications to
existing burdens subject to review by the Office of Management and
Budget.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this NPRM will
not have a significant economic impact on a substantial number of small
entities because it applies exclusively to employees, applicants for
employment, and agencies of the Federal Government and does not impose
a burden on any business entities. For this reason, a regulatory
flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This NPRM will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This NPRM does not substantially affect the rights or obligations
of non-agency parties and, accordingly, it is not a ``rule'' pursuant
to the Congressional Review Act. Therefore, the reporting requirement
of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Age discrimination, Color
discrimination, Equal employment opportunity, Equal pay, Genetic
information discrimination, Government employees, Individuals with
disabilities, National origin discrimination, Pregnancy discrimination,
Race discrimination, Religious discrimination, Sex discrimination.
Accordingly, for the reasons set forth in the preamble, the Equal
Employment Opportunity Commission amends chapter XIV of title 29 of the
Code of Federal Regulations as follows:
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY [AMENDED]
0
1. The authority citation for 29 CFR part 1614 continues to read as
follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16 and 2000ff-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p.
218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR,
1969 Comp., p. 133; E.O.
[[Page 57881]]
12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3 CFR,
1978 Comp., p. 321.
0
2. Amend Sec. 1614.108 by:
0
a. Adding a sentence at the end of paragraph (f); and
0
b. Revising the first sentence in paragraph (h).
The additions read as follows:
Sec. 1614.108 Investigation of complaints.
* * * * *
(f) * * * The notice that the complainant has the right to request
a hearing and decision from an administrative judge shall inform the
complainant that the hearing request may be filed using the EEOC Public
Portal, available at <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>.
* * * * *
(h) Where the complainant has received the notice required in
paragraph (f) of this section or at any time after 180 days have
elapsed from the filing of the complaint, the complainant may request a
hearing by submitting a written request for a hearing directly to the
EEOC office indicated in the agency's acknowledgment letter, or by
filing a request for a hearing through the EEOC Public Portal.
* * * * *
Sec. 1614.109 [Amended]
0
3. In Sec. 1614.109 amend paragraph (i) in the second sentence by
removing the word ``send'' and adding in its place the word
``transmit''.
0
4. Amend Sec. 1614.110 by adding paragraph (c) to read as follows:
Sec. 1614.110 Final action by agencies.
* * * * *
(c) When an agency takes final action by issuing a final order or
decision that requires the agency to include a notice that the
complainant has the right to file an appeal with the EEOC, the notice
shall inform the complainant that the appeal may be filed using the
EEOC Public Portal, available at <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>.
0
5. Amend Sec. 1614.204 by adding sentences at the end paragraphs
(j)(1) and (l)(3) to read as follows:
Sec. 1614.204 Class complaints.
* * * * *
(j)(1) * * * When an agency takes final action by issuing a final
order or decision that requires the agency to include a notice that the
class agent has the right to file an appeal with the EEOC, the notice
shall inform the class agent that the appeal may be filed using the
EEOC Public Portal, available at <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>.
* * * * *
(l)(3) * * * When an agency takes final action by issuing a final
order or decision that requires the agency to include a notice that the
class member has the right to file an appeal with the EEOC, the notice
shall inform the class member that the appeal may be filed using the
EEOC Public Portal, available at <a href="https://publicportal.eeoc.gov">https://publicportal.eeoc.gov</a>.
Sec. 1614.403 [Amended]
0
6. Amend Sec. 1614.403 paragraph (a) by adding the words ``by email,
or through FedSEP or the EEOC's Public Portal, as applicable,'' after
the word ``electronically''.
0
7. Amend Sec. 1614.405 by revising paragraph (a) to read as follows:
Sec. 1614.405 Decisions on appeals.
(a) The Office of Federal Operations, on behalf of the Commission,
shall issue a written decision setting forth its reasons for the
decision. The Commission shall dismiss appeals in accordance with
Sec. Sec. 1614.107, 1614.403(c) and 1614.409. The decision shall be
based on the preponderance of the evidence. The decision on an appeal
from an agency's final action shall be based on a de novo review,
except that the review of the factual findings in a decision by an
administrative judge issued pursuant to Sec. 1614.109(i) shall be
based on a substantial evidence standard of review. If the decision
contains a finding of discrimination, appropriate remedy(ies) shall be
included and, where appropriate, the entitlement to interest,
attorney's fees or costs shall be indicated. The decision shall reflect
the date of its issuance, inform the complainant of his or her civil
action rights, and be transmitted to the complainant and the agency.
For complainants who are not registered with the EEOC Public Portal,
the decision will be transmitted by first class mail. For complainants
who are registered with the Public Portal, the decision will be
transmitted via the Portal provided the complainant affirmatively
consents to receive the decision through the Portal. For registered
complainants who do not provide affirmative consent, and for
complainants who affirmatively consent but subsequently notify the
Commission that they withdraw their consent, the decision will be
transmitted by first class mail. The Commission will transmit the
decision to the agency via FedSEP.
* * * * *
0
8. Amend Sec. 1614.604 by:
0
a. Redesignating paragraphs (c) and (d) as paragraphs (f) and (g).
0
b. Adding new paragraphs (c), (d), and (e).
The additions read as follows:
Sec. 1614.604 Filing and computation of time.
* * * * *
(c) A hearing request, appeal, brief, or other document filed by a
complainant using the EEOC Public Portal, or filed by an agency using
FedSEP, shall be deemed filed on the date the document is uploaded to
the Public Portal or FedSEP. The timeliness of documents submitted
through the Public Portal and FedSEP will be determined based on the
time zone from which the document was submitted.
(d) An EEOC decision that is transmitted to a complainant through
the Public Portal or by email shall be deemed to be received when the
decision is accessed on the Portal or when received if transmitted via
email, or within five days of when the decision is uploaded to the
Portal or emailed, whichever occurs first.
(e) For the purposes of Sec. Sec. 1614.108, 1614.109, 1614.204(i),
and 1614.401 through 1614.405, the terms accept, file, filed, filing,
issue, issuance, issuing, notify, notified, receive, receipt, send,
serve, served, service, submit, submission, submitted, transmit, and
transmitted, shall include digital transmissions made through FedSEP,
the EEOC Public Portal, or by email.
Dated: August 17, 2023.
Charlotte A. Burrows,
Chair.
[FR Doc. 2023-18100 Filed 8-23-23; 8:45 am]
BILLING CODE 6570-01-P
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