Rule2024-12029
Procedures for Previously Exempt State and Local Government Employee Complaints of Employment Discrimination Under Section 304 of the Government Employee Rights Act of 1991
Primary source
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Published
June 4, 2024
Effective
July 5, 2024
Issuing agencies
Equal Employment Opportunity Commission
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 108 (Tuesday, June 4, 2024)</title>
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<body><pre>
[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="/cdn-cgi/l/email-protection#cca7adb8a4a0a9a9a2e2a3beada18ca9a9a3afe2aba3ba"><span class="__cf_email__" data-cfemail="9ef5ffeaf6f2fbfbf0b0f1ecfff3defbfbf1fdb0f9f1e8">[email protected]</span></a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="http://www.eeoc.gov">www.eeoc.gov</a>.
(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]
BILLING CODE 6570-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.