[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18935]


[[Page Unknown]]

[Federal Register: August 4, 1994]


_______________________________________________________________________

Part V

Department of Justice

Equal Employment Opportunity Commission
_______________________________________________________________________



28 CFR Part 37



29 CFR Part 1640




Procedures for Coordinating the Investigation of Complaints or Charges 
of Employment Discrimination Based on Disability Subject to the 
Americans With Disabilities Act and Section 504 of the Rehabilitation 
Act of 1973; Final Rule
DEPARTMENT OF JUSTICE

28 CFR Part 37

[A.G. Order No. 1899-94]
RIN 1190-AA29

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1640

RIN 3046-AA42

 
Procedures for Coordinating the Investigation of Complaints or 
Charges of Employment Discrimination Based on Disability Subject to the 
Americans With Disabilities Act and Section 504 of the Rehabilitation 
Act of 1973

AGENCIES: Department of Justice and Equal Employment Opportunity 
Commission.

ACTION: Joint final rule.

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SUMMARY: Section 107(b) of the Americans with Disabilities Act of 1990 
(ADA) requires that the Department of Justice (the Department), the 
Equal Employment Opportunity Commission (the Commission or the EEOC), 
and the Department of Labor's Office of Federal Contract Compliance 
Programs issue regulations setting forth procedures to coordinate the 
processing of complaints that fall within the overlapping jurisdiction 
of title I of the ADA and the Rehabilitation Act of 1973, to ensure 
that such complaints are dealt with in a manner that avoids duplication 
of effort and prevents the imposition of inconsistent or conflicting 
standards. Pursuant to this mandate, the Department of Justice and the 
EEOC are publishing a joint final rule implementing section 107(b) as 
it pertains to title I of the ADA and section 504 of the Rehabilitation 
Act of 1973. In addition, this regulation describes the existing 
procedures for processing: Employment complaints that fall within the 
overlapping jurisdiction of title II of the ADA and either title I or 
section 504 of the Rehabilitation Act, or both; and employment 
complaints that arise solely under title I or section 504. A joint 
final rule developed by the EEOC and the Department of Labor 
implementing section 107(b) as it pertains to title I and section 503 
of the Rehabilitation Act has been published separately in the Federal 
Register of January 24, 1992.

EFFECTIVE DATE: August 4, 1994.

FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Acting Chief, 
Coordination and Review Section, Civil Rights Division, U.S. Department 
of Justice, P.O. Box 66118, Washington, D.C. 20035-6118. She can also 
be contacted through the Division's ADA Information Line at (202) 514-
0301 or (800) 514-0301 (voice), or (202) 514-0383 or (800) 514-0383 
(TDD).
    Elizabeth M. Thornton, Deputy Legal Counsel, Equal Employment 
Opportunity Commission, 1801 L Street NW., Washington, DC 20507, (202) 
663-4638 (voice), (202) 663-7026 (TDD). Only the 800 numbers listed 
above are toll-free numbers.
    Copies of this rule are available in the following alternate 
formats: large print, Braille, electronic file or computer disk, and 
audio tape. Copies may be obtained by calling (800) 669-3362 (voice) or 
(800) 800-3302 (TDD).

SUPPLEMENTARY INFORMATION:

Background

    Title I of the ADA, 42 U.S.C. 12111-12117, prohibits discrimination 
against qualified individuals with disabilities in all aspects of 
employment. Title I of the ADA became effective on July 26, 1992, with 
respect to employers with 25 or more employees. 42 U.S.C. 12111(5)(A). 
On July 26, 1994, this coverage will be extended to employers with 15 
or more employees. Id. The EEOC is authorized to investigate and 
attempt to resolve charges of employment discrimination under title I.
    Subtitle A of title II of the ADA, 42 U.S.C. 12131-12134, prohibits 
discrimination against qualified individuals with disabilities on the 
basis of disability by State and local governmental entities in their 
services, programs, and activities, including employment. As of January 
26, 1992, the effective date of title II, all State and local 
governmental entities, regardless of the number of persons they employ, 
were prohibited from discriminating on the basis of disability in 
employment. The Department of Justice has issued a regulation 
implementing title II, which provides that eight designated Federal 
agencies shall investigate and attempt to resolve complaints of 
discrimination under title II. Complaints that arise solely under title 
II are investigated by the designated agency most closely related to 
the functions exercised by the governmental component against which the 
complaint is lodged. See 28 CFR part 35 (56 FR 35694, July 26, 1991).
    Section 504 of the Rehabilitation Act of 1973, as amended, 29 
U.S.C. 794, prohibits discrimination on the basis of disability 
(formerly, ``handicap'') in programs and activities receiving Federal 
financial assistance or conducted by any Executive agency. The 
nondiscrimination requirements of section 504 are applicable to 
employment in Federally-assisted programs. Each Federal agency that 
extends Federal financial assistance is responsible for compliance with 
section 504 in the programs it funds. More than twenty-five Federal 
agencies have issued regulations implementing section 504 for their 
Federally-assisted programs. These agencies are referred to in this 
rule as section 504 agencies.
    The substantive prohibitions and coverage of title I, title II, and 
section 504 overlap to a significant extent. There is, therefore, a 
potential for duplicative efforts by the many Federal agencies 
responsible for ensuring compliance with these laws in their processing 
of complaints. Thus, pursuant to section 107(b) of the ADA, the 
Department and the Commission are promulgating this joint final rule to 
establish procedures for coordinating the processing of complaints that 
fall within the overlapping jurisdiction of section 504 and title I of 
the ADA. For convenience and clarity in processing complaints, this 
rule also incorporates the provisions established by the Department's 
title II rule at 28 CFR 35.171(b)(2)-(3) for coordinating the 
processing of complaints against public entities: (i) that fall within 
the jurisdiction of title II and title I (but are not covered by 
section 504); and (ii) that are covered by title II, but not title I 
(whether or not they are also covered by section 504). This reiteration 
of title II procedures does not amend or change the title II regulation 
as previously published. The Commission does not express an opinion on 
the title II procedures set forth herein, since they merely repeat a 
previously published regulation over which the Commission has no direct 
authority. The Commission and the Department of Labor also have 
published joint rules implementing section 107(b) of the ADA as it 
pertains to title I and section 503 of the Rehabilitation Act. See 29 
CFR part 1641, 41 CFR part 60-742 (57 FR 2960, January 24, 1992).

Analysis of Comments and Revisions

Overview

    The Commission received ten comments in response to a notice of 
proposed rulemaking (NPRM) published jointly with the Department of 
Justice on April 21, 1992. 57 FR 14630. In addition, the Commission 
received comments from various affected Federal agencies on both the 
proposed regulation and on the draft final regulation, pursuant to 
interagency coordination under Executive Order 12067. The Commission 
and the Department of Justice have carefully considered all of the 
comments and made various revisions in response to them. A number of 
commenters expressed reservations about the feasibility of the 
procedures set forth in the NPRM and suggested various alternative 
procedures. Several commenters strongly urged that procedures similar 
to those set forth in the regulation promulgated to coordinate 
processing of complaints of employment discrimination filed against 
recipients of federal financial assistance be adopted. See 28 CFR part 
42; 29 CFR part 1691 (hereinafter, the title VI/title VII regulation). 
The title VI/title VII regulation established procedures for handling 
complaints of employment discrimination filed against recipients of 
Federal financial assistance subject to title VI of the Civil Rights 
Act of 1964, title IX of the Education Amendments of 1972, the State 
and Local Fiscal Assistance Act of 1972, as amended, and other 
provisions of Federal law that prohibit discrimination on grounds of 
race, color, religion, sex, or national origin, in programs or 
activities receiving Federal financial assistance, when there is 
overlapping jurisdiction under title VII of the Civil Rights Act of 
1964.
    Under the NPRM's ``first filed approach,'' the EEOC and any section 
504 agency with jurisdiction over a charge or complaint would process 
those charges or complaints that were actually filed with it, pursuant 
to title I of the ADA or section 504, respectively. In the case of a 
charge or complaint that was physically filed with both the EEOC and a 
section 504 agency with jurisdiction, the agency that first received 
the complaint or charge would process it, absent special circumstances, 
while the second agency would defer processing pending the conclusion 
of the first agency's investigation. Numerous section 504 agencies 
expressed concern about the practical difficulties inherent in the 
NPRM's approach, including ascertaining which agency actually received 
a charge or complaint first in the case of a charge or complaint filed 
with both the EEOC and a section 504 agency. Accordingly, as suggested 
by a number of commenters, the final regulation adopts an approach 
similar to that of the title VI/title VII regulation. Under the final 
rule, a complaint solely alleging employment discrimination against a 
single individual (hereinafter, an individual complaint) that is filed 
with a section 504 agency with jurisdiction over the complaint will 
ordinarily be transferred to the EEOC for processing, unless the 
complainant specifically requests processing by the section 504 agency. 
Section 504 agencies, however, will retain for processing any 
complaints that allege: (i) a pattern or practice of discrimination in 
employment; or (ii) discrimination both in employment and in other 
services or practices of a respondent that are covered by section 504. 
For a comprehensive analysis of the new procedures, see the discussion 
of Sec. ____.6, below.
    The NPRM presented two options regarding the legal standard to be 
applied by section 504 agencies, and the preamble to the NPRM discussed 
the rationale for each option. Although numerous comments on these 
options were received in response to the NPRM, recent amendments to the 
Rehabilitation Act have resolved this issue. See section 506 of the 
Rehabilitation Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4344. 
Therefore, as provided in that amendment, the final regulation directs 
section 504 agencies to apply the standards of title I of the ADA. See 
the discussion of Sec. ____.12, below.
    Commenters also requested that time frames for the processing of 
complaints be added to the final regulation. Because, in certain cases, 
individual agencies may have requirements that preclude meeting fixed 
time frames for certain stages of the complaint investigation process, 
this suggestion has not been adopted. For example, when disclosure of 
the complainant's identity is necessary for the investigation of a 
section 504 or title II complaint, the Department requires receipt of a 
signed consent form from the complainant prior to notifying a 
respondent that the Department has received a complaint of 
discrimination. Therefore, the final regulation retains the more 
general requirement that agencies act promptly and in accordance with 
applicable law.
    Various commenters also noted the inefficiency of the requirement 
that a section 504 agency refer a complaint to the Civil Rights 
Division for a determination of jurisdiction when the agency does not 
have section 504 jurisdiction, but does have title II jurisdiction. In 
response, the regulation has been revised to require that a complaint 
be referred to the Civil Rights Division only when the section 504 
agency that initially receives the complaint has neither section 504 
nor title II jurisdiction.

Section-by-Section Analysis

Section ____.1 Purpose and Application
    Section ____.1 of the final rule, ``Purpose and application,'' 
explains that the rule establishes the coordination procedures to be 
followed by the Federal agencies responsible for processing complaints 
of employment discrimination filed against recipients of Federal 
financial assistance and arising under section 504 and title I of the 
ADA. In addition to establishing those new procedures, the rule also 
restates and integrates into one comprehensive regulation those 
provisions of the Department's existing title II regulation that 
established the procedures for coordinating the processing of 
complaints covered by title II of the ADA and either title I or section 
504, or both. The rule does not amend the title II regulation, but 
simply locates all of the applicable regulations regarding coordination 
in a single source.
Section ____.2 Definitions
    Section ____.2 defines a number of terms used in the rule. A 
definition of the term ``due weight'' has been added, supplementing the 
discussion in the preamble.
    The definitions of Federal financial assistance and program or 
activity, both of which relate to the determination of whether 
jurisdiction exists under section 504, have been revised from those 
contained in the NPRM. The NPRM originally contained a detailed 
definition of Federal financial assistance. However, in recognition of 
the fact that this definition may vary among section 504 agency 
regulations due to the nature of financial assistance provided by each 
agency, the new definition simply refers to the definitions adopted by 
each section 504 agency in its regulation implementing section 504 for 
Federally-assisted programs.
    The definition of program or activity under section 504 was 
modified by the Civil Rights Restoration Act of 1987, Pub. L. 100-259, 
102 Stat. 29, for all section 504 agencies. Therefore, to avoid any 
inconsistency between this rule and any agency regulations implementing 
section 504 that may not have been amended to reflect this change to 
the Rehabilitation Act, the new definition references the statutory 
definition.
Section ____.3 Exchange of Information
    Section ____.3 requires the agencies responsible for enforcing the 
ADA and section 504 to share information.
Section ____.4 Confidentiality
    Section ____.4(a) states that the confidentiality obligations 
applicable to the EEOC under the ADA also apply to section 504 agencies 
and designated agencies when information obtained by the EEOC is 
transmitted to such agencies, except when the agency receives the same 
information from a source other than the EEOC. Section ____.4(b) states 
that when the EEOC receives information from section 504 or designated 
agencies, the EEOC shall comply with any confidentiality requirements 
applicable to that information.
Section ____.5 Date of Receipt
    Section ____.5 states that a complaint or charge of employment 
discrimination is deemed to be filed, for purposes of determining 
timeliness, on the date the complaint or charge is first received by a 
Federal agency with jurisdiction under section 504 or the ADA, 
regardless of whether it is subsequently transferred to another agency 
for processing.
Section ____.6 Processing of Complaints of Employment Discrimination 
Filed With an Agency Other Than the EEOC
    Section ____.6 describes the basic procedures that section 504 
agencies and the agencies designated to process complaints under the 
Department's title II regulation will follow in determining whether to 
process an employment complaint or to refer it to another agency. The 
primary purpose of the rule is to establish procedures for coordinating 
the processing of complaints or charges of employment discrimination 
arising under section 504 and title I of the ADA. However, the 
procedures for coordinating the processing of complaints or charges of 
employment discrimination against public entities: (i) that fall under 
the jurisdiction of title II and title I (but not section 504); and 
(ii) that fall under the jurisdiction of title II, but not title I 
(whether or not covered by section 504) established by Sec. 35.171 of 
the Department's title II regulation, have been restated here and 
integrated with the section 504 processing procedures for clarity and 
ease in processing by the affected agencies.
    Section ____.6 has been revised to eliminate the requirement that 
the initial receiving agency, or the Civil Rights Division, when a 
complaint is forwarded to it for a determination of jurisdiction, 
provide notice to the affected parties. As previously written, the 
regulation required notification by any agency that came into contact 
with a complaint or charge even if the complaint or charge was 
immediately forwarded to another agency. Instead of multiple 
notifications, the final rule now provides for a more efficient single 
notification at such time as the appropriate processing agency receives 
the complaint or charge, in accordance with agency policy and 
applicable law.
    Paragraph (b) of Sec. ____.6 has been revised to provide that, if 
an agency determines pursuant to paragraph (a) that it does not have 
jurisdiction under section 504 or title II, and that the EEOC does not 
have jurisdiction under title I, the agency shall promptly refer the 
complaint to the Civil Rights Division. This is a change from the 
procedure set forth in the NPRM, which required a section 504 agency to 
refer all title II complaints to the Civil Rights Division. The 
revision was made in response to various comments pointing out that 
this was an inefficient procedure when the section 504 agency was 
certain that it was the designated agency under title II, and that the 
complaint would be referred back to it by the Civil Rights Division.
    Upon receipt of a referred complaint, the Civil Rights Division 
will determine whether another Federal agency may have jurisdiction 
over the complaint under section 504 (that is, a Federal agency may be 
providing financial assistance to the respondent) or under title II 
(that is, the entity that is the subject of the complaint may be a 
public entity). When the Civil Rights Division finds such jurisdiction, 
it shall promptly refer the complaint to the appropriate agency.
    Paragraph (c) of Sec. ____.6 sets forth the circumstances under 
which an agency that is a section 504 agency, a designated agency, or 
both, will promptly refer a complaint to the EEOC for investigation and 
processing. In addition to: (i) revising the regulation to reflect the 
procedures of the title VI/title VII regulation (which generally 
results in individual complaints being referred for processing to the 
EEOC); and (ii) incorporating the procedures already established by the 
title II regulation, paragraph (c) and the balance of Sec. ____.6 more 
specifically set forth the requirements for either referral or 
retention applicable to each type of agency. Unlike the procedural 
scheme set forth in the NPRM, under which a complaint or charge could 
only be dual filed if it were actually filed with both a section 504 
agency and the EEOC, a complaint or charge filed with one agency will 
now be deemed to be dual filed under both title I and section 504 under 
certain circumstances, as set forth in this section and in Sec. ____.7.
    Paragraph (c)(1) of Sec. ____.6 describes the rule applicable to an 
agency that receives a complaint of employment discrimination under 
section 504 or title II and determines that it does not have 
jurisdiction over the complaint. If the agency determines that the EEOC 
may have jurisdiction, the agency is required to promptly forward the 
complaint to the EEOC for processing. In certain instances this may 
require consultation with the EEOC. This paragraph establishes the 
requirements for section 504 and other agencies and includes the 
requirements established by Sec. 35.171(b)(2) of the title II 
regulation with respect to designated agencies.
    Paragraph (c)(2) establishes the referral requirements applicable 
to section 504 agencies and requires a section 504 agency that 
otherwise has jurisdiction over a complaint of employment 
discrimination to refer the complaint to the EEOC when the complaint 
solely alleges discrimination against an individual, unless the EEOC 
lacks jurisdiction over the complaint under title I, or the complainant 
requests that the section 504 agency retain jurisdiction, either 
independently, or following receipt of the notice letter described in 
paragraphs (c)(2)(ii)(A) and (c)(2)(ii)(B).
    The referral to the EEOC of complaints solely alleging employment 
discrimination against individuals is a significant change in procedure 
from the NPRM. The revision was made in response to numerous comments 
urging this approach, which is consistent with the title VI/title VII 
regulation. This approach will serve to minimize duplicative efforts 
because the EEOC, in general, will be the primary agency investigating 
individual complaints of disability discrimination in employment. An 
individual's private right of action under title I of the ADA will also 
be preserved under this approach, since these section 504 complaints 
also will be deemed to be dual filed under title I. However, in order 
to preserve an individual's right to have his or her complaint 
processed by the section 504 agency, paragraph (c)(2)(i)(B) requires 
the section 504 agency to retain the complaint for investigation if the 
complainant so requests.
    Paragraphs (c)(2)(ii)(A) and (c)(2)(ii)(B) describe the notice 
letter a section 504 agency is required to send promptly to each 
complainant before the agency refers a complaint solely alleging 
employment discrimination against an individual to the EEOC. The 
purpose of the letter is to inform an individual who has initially 
filed his or her complaint with the appropriate section 504 agency of 
the basic implications of a referral of that complaint to the EEOC. It 
is anticipated that the vast majority of individual complaints will be 
referred to the EEOC, with the section 504 agency deferring its review 
and processing until the conclusion of the EEOC's processing. However, 
because an automatic referral to the EEOC of a complaint filed with a 
section 504 agency may be contrary to the complainant's expectations, 
complainants will be given the choice of having the EEOC or the section 
504 agency investigate the complaint.
    Each agency will develop its own letter informing the complainant 
that the agency will refer the complaint to the EEOC for investigation 
and processing, unless the agency receives a written request to the 
contrary from the complainant within twenty days of the date of the 
notice letter. The agency notice letter shall explain: (i) that 
agency's procedures for processing section 504 complaints; and (ii) the 
EEOC's procedures for processing complaints under title I. The agency 
notice letter shall also inform individuals of the potential for 
differing remedies under each statute.
    Paragraph (c)(3) describes the procedure for referral by designated 
agencies, as established by Sec. 35.171(b)(2) of the title II 
regulation. If a designated agency does not have section 504 
jurisdiction, and determines that the EEOC may have title I 
jurisdiction, it shall promptly refer the complaint to the EEOC.
    Paragraph (c)(4)(i) provides that complaints referred to the EEOC 
by an agency with section 504 jurisdiction will be deemed to be dual 
filed under both section 504 and title I. As a consequence, the section 
504 agency, although required to defer its processing of the complaint, 
will have an opportunity to review the EEOC's findings and take any 
further action it deems appropriate, as provided in Sec. ____.10. 
Paragraph (c)(4)(ii) further provides that a complaint referred to the 
EEOC by an agency that has jurisdiction over the complaint under title 
II only (and not under section 504) will be treated as a complaint 
filed under title I only. See 28 CFR 35.171(b)(2).
    The distinction between the treatment of these two types of 
complaints, those falling within the province of section 504 and those 
arising only under the ADA, is based on the ADA's statutory mandate to 
preserve the rights, remedies, and procedures of any Federal law that 
provides greater or equal protection to individuals with disabilities 
than are afforded by the ADA. Permitting section 504 agencies to review 
complaints originally filed with those agencies preserves section 504 
remedies, including an agency's prerogative to terminate the federal 
funding of the respondent. It is anticipated that the fact that fund 
termination is ultimately available as an administrative remedy will 
encourage respondents to resolve valid claims through negotiation with 
the EEOC rather than through litigation. Because Sec. ____.10(c) 
requires the reviewing section 504 agency to give due weight to the 
EEOC's findings and conclusions, it is also anticipated that, in most 
instances, further action by the section 504 agency will not be 
necessary.
    Paragraph (c)(4)(iii) states that any complaint referred to the 
EEOC shall be processed pursuant to title I procedures. Specifically, 
the EEOC will notify respondents of its receipt of a complaint in 
accordance with its usual procedures for notification following receipt 
of a charge.
    Paragraph (d) of Sec. ____.6 describes the circumstances under 
which an agency shall retain a complaint for investigation (rather than 
referring it to the EEOC or the Civil Rights Division). The general 
rule applicable to section 504 agencies, as stated in paragraph (d)(1), 
is that a section 504 agency shall retain a complaint when it 
determines that it has section 504 jurisdiction over the complaint and 
that any one or more of the following are true: (i) the EEOC does not 
have jurisdiction over the complaint; (ii) the EEOC has jurisdiction 
over the complaint, but the complainant requests that the complaint be 
investigated by the agency rather than being referred; (iii) the 
complaint alleges discrimination in both employment and in other 
services or practices of the respondent that are covered by section 
504; or (iv) the complaint alleges a pattern or practice of 
discrimination in employment. Such complaints will not be deemed dual 
filed under title I of the ADA.
    This procedure is consistent with the approach taken in the title 
VI/title VII regulation. For reasons of efficiency, section 504 
agencies will ordinarily process complaints that allege disability 
discrimination in both employment and other practices of a recipient, 
because the EEOC has no jurisdiction over the latter. Historically, 
under both section 504 and other civil rights statutes, agencies have 
also had a particular interest in the enforcement of pattern or 
practice cases of employment discrimination against recipients of 
Federal assistance, and agencies shall continue to investigate such 
complaints. It should be noted that the term ``pattern or practice'' of 
discrimination is intended to mean systemic or class complaints 
generally. Although the term ``pattern or practice'' of discrimination 
is sometimes used in a more narrow sense to refer to intentional 
discrimination or disparate treatment on a classwide level, the term 
was used in the title VI/title VII rule to refer to both adverse impact 
cases and cases of intentional discrimination affecting a class of 
protected individuals.
    The provisions described above only apply when a complaint is filed 
with a section 504 agency. The EEOC will always process all charges, 
including class charges, that are solely filed with the EEOC.
    Paragraph (d)(2) restates the principle established in the title II 
regulation that an agency shall retain a complaint for investigation 
when it determines that: (i) it has jurisdiction over the complaint as 
a designated agency; and (ii) that the EEOC does not have jurisdiction 
over the complaint under title I. See 28 CFR 35.171(b)(2).
    Paragraph (d)(3) states the rule that complaints retained for 
investigation under paragraphs (d)(1) and (d)(2) will be investigated 
and processed under section 504, title II, or both, as applicable, and 
will not be considered to be dual filed under title I.
Section ____.7 Processing of Charges of Employment Discrimination Filed 
With the EEOC
    Section ____.7 outlines the procedures that the EEOC will take in 
determining whether to process a charge or to refer it to another 
agency.
    Section .7(a)(1) requires the EEOC, as a first step, to determine 
whether it has jurisdiction over the charge. If the EEOC has 
jurisdiction, it shall process the charge in accordance with its 
customary title I procedures, including notification of the respondent.
    Paragraph (a)(2) sets forth the procedures that apply when the EEOC 
determines that it does not have jurisdiction over the charge. Under 
such circumstances, the charge will be promptly forwarded to the Civil 
Rights Division for referral to the appropriate agency, or retention by 
the Department for processing, as applicable.
    Paragraph (b)(1) of Sec. ____.7 states the basic rule applicable to 
charges filed with the EEOC, that is, when the EEOC determines that it 
has jurisdiction over the charge under title I, it shall retain the 
charge. Because EEOC processing of a charge filed with the EEOC is 
consistent with the charging party's expectations when filing the 
charge, no notice letter to the charging party, similar to the letter 
required to be sent to complainants under paragraph (c)(2)(ii) of 
Sec. ____.6, is required.
    Paragraph (b)(2) has been newly added to the final rule. It 
provides that the EEOC shall refer to a section 504 agency for further 
action, as appropriate, any cause finding against a recipient that has 
failed conciliation and that the EEOC has declined to litigate. By 
providing for agency review under these circumstances, paragraph (b)(2) 
should promote the ADA's statutory goal of preserving section 504 
remedies, while the requirement that section 504 agencies give due 
weight to EEOC findings should eliminate any need for duplicative 
agency action.
Section ____.8 Processing of Complaints or Charges of Employment 
Discrimination Filed With Both the EEOC and a Section 504 Agency
    Section ____.8 sets forth the procedures that the EEOC and section 
504 agencies shall follow in processing complaints or charges of 
employment discrimination that have been dual filed with both the EEOC 
and a section 504 agency.
    Paragraph (a) of Sec. ____.8 sets forth the procedures applicable 
to complaints or charges of employment discrimination that are dual 
filed with both a section 504 agency and the EEOC, both of which have 
jurisdiction over the complaint or charge.
    Under those circumstances, the rule follows the general pattern 
established by the title VI/title VII regulation, and requires the EEOC 
to process charges that solely allege employment discrimination against 
an individual when the individual has not elected section 504 agency 
processing. Section 504 agencies will process all complaints that 
allege: (i) discrimination in both employment and other practices or 
services of the respondent; (ii) a pattern or practice of employment 
discrimination; or (iii) discrimination solely against an individual, 
when the individual has elected section 504 agency processing. This 
allocation of responsibility for complaint processing is the same as 
the allocation of responsibility for processing complaints originally 
filed solely with a section 504 agency under Sec. ____.6. However, as 
discussed below, paragraph (e) of Sec. ____.8 sets forth exceptions to 
this general scheme for special circumstances.
    Paragraph (b) requires complaints or charges to be referred to the 
Civil Rights Division if both the EEOC and the section 504 agency 
determine that they do not have jurisdiction over the complaint or 
charge. The Civil Rights Division is then responsible for making the 
appropriate referral to a section 504 or designated agency.
    Paragraph (c) requires the EEOC and each agency with jurisdiction 
under section 504 to develop procedures for determining whether 
complaints or charges of discrimination have been filed with the EEOC 
and with one or more agencies. It is anticipated that the Department, 
the Commission, and the section 504 agencies will work together to 
develop materials, such as a uniform filing form (or uniform portion of 
a filing form) that will facilitate coordination in processing 
employment complaints.
    Although some commenters requested that these procedures be stated 
in the final rule, it was decided that this activity is more 
appropriately conducted at a sub-regulatory level, which will permit 
more flexibility in developing efficient procedures. In addition, 
because the rule has been restructured to follow the title VI/title VII 
regulation rather than the ``first-filed'' approach, there is less need 
to determine whether a complaint or charge has been filed with more 
than one agency. For example, under the title VI/title VII model, the 
EEOC will become the primary agency processing complaints or charges 
that solely allege discrimination against an individual. Therefore, 
there is no need to determine whether these complaints or charges have 
been dual filed in order to establish responsibility for processing. In 
addition, the notice letter required to be sent to section 504 
complainants prior to such a referral should provide an efficient 
mechanism for determining whether a charge has also been filed with the 
EEOC because it could be used to require complainants to reveal whether 
they had filed a complaint or charge with another agency.
    Paragraph (d) requires the agency that will process a dual-filed 
complaint or charge to notify all concerned parties that the other 
agencies will be deferring their processing, and of the possibility of 
further action by such agencies pursuant to Secs. ____.10 or ____.11.
    Paragraph (e) establishes that, under certain special circumstances 
where deferral may be inappropriate, the agencies involved may jointly 
agree to reallocate investigatory responsibilities. For example, if the 
section 504 agency would normally process the complaint, but the agency 
does not receive information that another charge has been filed with 
the EEOC until after an investigation has been started by the EEOC, 
this exception permits the agencies jointly to decide that the EEOC 
should continue processing the charge and that the section 504 agency 
should defer further action. This exception could also be used in 
connection with subsequent complaints or charges, such as allegations 
of retaliation, related to the original complaint or charge.
    The special circumstances listed in paragraph (e) are illustrative 
and agencies may agree to reallocate investigatory responsibilities 
under other appropriate circumstances. In such circumstances a 
complaint or charge will be treated as a deferred complaint or charge 
with respect to any right to review under Secs. ____.10 and ____.11.
    It is not anticipated that most aggrieved individuals will 
separately file with both a section 504 agency and the EEOC. Since the 
substantive protections provided by title I and section 504 are now 
identical, an individual's rights against discrimination on the basis 
of disability can be vindicated under either statute. However, an 
individual who files a complaint with a section 504 agency alleging 
discrimination both in employment and services, a pattern or practice 
of discrimination, or who requests section 504 processing, will not 
preserve a private right of action under title I of the ADA, unless the 
individual also files a charge with the EEOC under title I of the ADA.
Section ____.9  Processing of Complaints or Charges of Employment 
Discrimination Filed With a Designated Agency and Either a Section 504 
Agency, the EEOC, or Both
    Section ____.9 adds new procedures to the final rule to address the 
processing of complaints filed with a designated agency and with either 
a section 504 agency, the EEOC, or both. Generally, the EEOC and the 
section 504 agencies have primary responsibility for processing 
complaints of employment discrimination. Therefore, Sec. ____.9 
provides that a designated agency shall investigate and process a 
complaint only when: (i) it is either the only agency with jurisdiction 
to process the complaint; or (ii) it also has jurisdiction to process 
the complaint under section 504. If another agency has sole 
jurisdiction over the complaint under either section 504 or title I 
(and the complaint was actually filed with that agency under section 
504 or title I), Sec. ____.9 requires the designated agency to forward 
the complaint to that agency. If a section 504 agency and the EEOC both 
have jurisdiction over a complaint or charge of employment 
discrimination, the rule allocates complaint-processing responsibility 
according to the established pattern of the title VI/title VII rule, 
that is, individual complaints are forwarded to the EEOC and complaints 
alleging discrimination in both employment and in other practices or 
services of the respondent or a pattern or practice of employment 
discrimination are forwarded to the section 504 agency with 
jurisdiction.
Section ____.10 Section 504 Agency Review of Deferred Complaints
    Section ____.10 describes the steps that shall be taken when the 
EEOC processes a dual-filed complaint or charge (either an individual 
complaint that is referred to the EEOC or a dual-filed complaint or 
charge that the EEOC processes) and a section 504 agency defers its 
investigation.
    Because the rule requires the section 504 agency to defer action 
until the EEOC resolves the complaint, paragraph (a) outlines the 
different ways in which any title I charge may be resolved, including 
litigation by the EEOC. Although the EEOC is the agency primarily 
responsible for the enforcement of title I, resolution by the Civil 
Rights Division is also included under paragraphs (a) (3) and (4) 
because, under title I of the ADA, when there is a cause finding 
pursuant to 29 CFR 1601.21, the Civil Rights Division has litigation 
authority for charges against State and local governments, government 
agencies, and political subdivisions. See 29 CFR 1601.29. The Civil 
Rights Division is also responsible for issuing right-to-sue letters in 
such cases. See 29 CFR 1601.28(d).
    Paragraph (b) of Sec. ____.10 provides that, upon resolution of the 
dual-filed complaint or charge, the EEOC or the Civil Rights Division 
shall inform the section 504 agency of the resolution. Paragraph (d) 
provides that, upon written request by the section 504 agency, the EEOC 
or the Civil Rights Division shall provide the section 504 agency with 
the materials necessary to evaluate its resolution of the case, such as 
investigative reports.
    Paragraph (c) of Sec. ____.10 provides that, upon receipt of 
notification from the EEOC or the Civil Rights Division, as 
appropriate, the section 504 agency shall determine what further action 
is warranted. Because, pursuant to the 1992 amendments to the 
Rehabilitation Act, the substantive standards to be applied to 
complaints of employment discrimination are now identical, it is 
anticipated that, except in rare circumstances, the section 504 
agency's findings and conclusions as to whether a violation has 
occurred will be consistent with those of the EEOC and those of the 
Civil Rights Division, as applicable. In order to further promote 
consistency and avoid duplication of effort, the rule requires that the 
section 504 agency accord due weight to the findings and conclusions of 
the EEOC and the Civil Rights Division, as applicable. The term ``due 
weight'' is adopted from the title VI/title VII regulation, which is 
referenced in section 107(b) of the ADA. 28 CFR part 42, subpart H; 29 
CFR part 1691. In giving due weight to the findings and conclusions of 
the EEOC or the Civil Rights Division, a section 504 agency shall give 
such full and careful consideration to the findings and conclusions as 
is appropriate, taking into account such factors as: (i) the extent to 
which the underlying investigation is complete and the evidence 
supports the findings and conclusions; (ii) the nature and results of 
any subsequent proceedings; (iii) the extent to which the findings, 
conclusions and any actions taken under title I are consistent with the 
effective enforcement of section 504; and (iv) the agency's 
responsibilities under section 504.
    Moreover, if the agency proposes to take an action that is 
inconsistent with such findings and conclusions, the section 504 agency 
is required to provide written notification of the action that it 
proposes to take and the basis for that action to the Assistant 
Attorney General of the Civil Rights Division, the Chairman of the 
EEOC, and the head of the EEOC office that processed the complaint or 
charge. This is intended to enable the agencies to identify and resolve 
any potentially conflicting or inconsistent standards before they are 
imposed and to prevent duplication of effort.
    What further action the section 504 agency will take will depend on 
the EEOC's (or, as appropriate, the Civil Rights Division's) findings, 
conclusions, and resolution. This rule contemplates that in most cases 
the ``further action'' would be that the section 504 agency would 
notify the complainant and the respondent that it is closing its file 
based upon the EEOC's resolution of the charge. For example, closure by 
the section 504 agency would be the appropriate action when: (i) the 
EEOC found no cause and issued a right-to-sue letter, and the section 
504 agency agreed with the determination that no violation occurred; or 
(ii) the EEOC found cause and the violation was completely remedied 
through either a conciliation agreement or litigation, and the section 
504 agency agreed that the violation had been remedied.
Section ____.11  EEOC Review of Deferred Charges
    Section ____.11 describes the steps that shall be taken when a 
section 504 agency processes a dual-filed complaint or charge and the 
EEOC defers its processing of the charge. Paragraph (a) of Sec. ____.11 
outlines the different ways in which a section 504 complaint may be 
resolved. Referral to, and action by, the Civil Rights Division is 
included in Sec. ____.11(a) because one of the options available to a 
section 504 agency, when it has found a violation and it has not been 
able to negotiate a voluntary compliance agreement, is referral to the 
Civil Rights Division for judicial enforcement.
    Paragraphs (b) and (d) of Sec. ____.11 impose the same types of 
obligations on the section 504 agency to notify the EEOC of its 
resolution of the complaint and to share with the EEOC any materials 
related to the resolution of the complaint that would permit the EEOC 
to evaluate the findings, as paragraphs (b) and (d) of Sec. ____.10 
impose on the EEOC.
    Paragraph (c) of Sec. ____.11 imposes requirements on the EEOC 
analogous to those Sec. ____.10(c) imposes on a section 504 agency. 
This paragraph contemplates that in most cases the appropriate 
``further action'' would be that the EEOC would notify the charging 
party and the respondent that it is closing its file based upon the 
resolution of the complaint by the section 504 agency, and, where 
appropriate, would issue a right-to-sue letter. For example, closure 
and issuance of a right-to-sue letter by the EEOC would be the 
appropriate action when the section 504 agency found no violation and 
the EEOC agreed. Alternatively, closure alone would be appropriate when 
the section 504 agency found a violation and the EEOC agreed that the 
violation was completely remedied through either a conciliation 
agreement, an administrative hearing, or judicial enforcement.
Section ____.12  Standards
    In the NPRM, this section addressed the requirement established by 
section 107(b) of the ADA to ``[prevent] imposition of inconsistent or 
conflicting standards for the same requirements under [title I and 
section 504].''
    As noted earlier, in order to comply with this statutory mandate, 
the NPRM presented two options for the legal standard to be applied by 
section 504 agencies in their investigation of complaints that are also 
subject to title I, and requested comment as to the appropriate 
standard. However, in the period between the publication of the NPRM 
and the publication of this final rule, the Rehabilitation Act was 
specifically amended to provide that the standards of title I of the 
ADA and the provisions of sections 501 through 504, and 510, of the 
ADA, as such sections relate to employment, shall be the standards 
applied by section 504 agencies in investigating complaints of 
employment discrimination. See section 506 of the Rehabilitation Act 
Amendments of 1992, Public Law 102-569, 106 Stat. 4344, 4428. The final 
rule tracks the language of the amendment.
Section ____.13  Agency Specific Memoranda of Understanding
    This section has been newly added to the final rule, to allow 
maximum flexibility for the development of agency specific memoranda of 
understanding (MOU) that would further serve to minimize duplication of 
effort and fully preserve an aggrieved individual's rights under both 
statutes. When a section 504 agency amends its regulations to make them 
consistent with title I of the ADA, the EEOC and the individual section 
504 agency may enter into an MOU providing for the investigation and 
processing by the section 504 agency of complaints or charges dual 
filed under both section 504 and title I of the ADA by the section 504 
agency. Execution of an MOU would be discretionary on the part of both 
the EEOC and the particular section 504 agency. Section 504 agencies 
that amend their regulations to make them consistent with title I 
standards would have, in agreement with the EEOC, the option of acting 
as the EEOC's agent for investigating and processing under title I all 
complaints covered by both title I and section 504 that are filed with 
the section 504 agency. It is contemplated that the terms of the MOU 
would be similar to the joint rule implementing section 107(b) as it 
pertains to section 503 of the Rehabilitation Act and title I. 29 CFR 
part 1641; 41 CFR part 60-742.

Regulatory Process Matters

    This rule takes effect immediately, rather than 30 days after 
publication, because it solely concerns agency procedure and practice.
    This final rule has been drafted in accordance with Executive Order 
12866, section 1(b), Principles of Regulation. The Department of 
Justice and the Equal Employment Opportunity Commission have determined 
that it is not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review, and 
accordingly this rule has not been reviewed by the Office of Management 
and Budget.
    Executive Order 12875 prohibits executive departments and agencies 
from promulgating any regulation that is not required by statute and 
that creates a mandate upon a state, local, or tribal government unless 
certain conditions are met. Although the procedures for processing 
complaints or charges of employment discrimination established by this 
regulation may affect complaints or charges of employment 
discrimination filed against such entities, the final rule does not 
create any mandates affecting such entities and may, in fact, reduce 
any current burden by streamlining the processing of complaints and 
charges at the Federal level.
    The Attorney General and the Chairman of the EEOC have reviewed 
this regulation in accordance with the Regulatory Flexibility Act (5 
U.S.C. 605(b)), and by approving it certify that this regulation will 
not have a significant economic impact on a substantial number of small 
entities.
    This final rule does not establish reporting or record-keeping 
requirements that are considered to be information collection 
requirements as that term is defined by the Office of Management and 
Budget in 5 CFR part 1320.
    This part will be added to the rules of the Department of Justice 
at 28 CFR chapter I as a new part 37, and to the rules of the Equal 
Employment Opportunity Commission at 29 CFR chapter XIV as a new part 
1640. Since the parts are identical, the text of the joint final rule 
is set out only once at the end of the joint preamble. The part 
heading, list of subjects, table of contents, and authority citation 
for the parts as they will appear in each CFR title follow the text of 
the joint rule.

Text of Final Joint Rule

    The text of the final joint rule, as adopted by the agencies 
specified in this document, appears below:

PART ____--PROCEDURES FOR COORDINATING THE INVESTIGATION OF 
COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON 
DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND 
SECTION 504 OF THE REHABILITATION ACT OF 1973

Sec.
____.1 Purpose and application.
____.2 Definitions.
____.3 Exchange of information.
____.4 Confidentiality.
____.5 Date of receipt.
____.6 Processing of complaints of employment discrimination filed 
with an agency other than the EEOC.
____.7 Processing of charges of employment discrimination filed with 
the EEOC.
____.8 Processing of complaints or charges of employment 
discrimination filed with both the EEOC and a section 504 agency.
____.9 Processing of complaints or charges of employment 
discrimination filed with a designated agency and either a section 
504 agency, the EEOC, or both.
____.10 Section 504 agency review of deferred complaints.
____.11 EEOC review of deferred charges.
____.12 Standards.
____.13 Agency specific memoranda of understanding.


Sec. ____.1  Purpose and application.

    (a) This part establishes the procedures to be followed by the 
Federal agencies responsible for processing and resolving complaints or 
charges of employment discrimination filed against recipients of 
Federal financial assistance when jurisdiction exists under both 
section 504 and title I.
    (b) This part also repeats the provisions established by 28 CFR 
35.171 for determining which Federal agency shall process and resolve 
complaints or charges of employment discrimination:
    (1) That fall within the overlapping jurisdiction of titles I and 
II (but are not covered by section 504); and
    (2) That are covered by title II, but not title I (whether or not 
they are also covered by section 504).
    (c) This part also describes the procedures to be followed when a 
complaint or charge arising solely under section 504 or title I is 
filed with a section 504 agency or the EEOC.
    (d) This part does not apply to complaints or charges against 
Federal contractors under section 503 of the Rehabilitation Act.
    (e) This part does not create rights in any person or confer agency 
jurisdiction not created or conferred by the ADA or section 504 over 
any complaint or charge.


Sec. ____.2  Definitions.

    As used in this part, the term:
    Americans with Disabilities Act of 1990 or ADA means the Americans 
with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, 42 
U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
    Assistant Attorney General refers to the Assistant Attorney 
General, Civil Rights Division, United States Department of Justice, or 
his or her designee.
    Chairman of the Equal Employment Opportunity Commission refers to 
the Chairman of the United States Equal Employment Opportunity 
Commission, or his or her designee.
    Civil Rights Division means the Civil Rights Division of the United 
States Department of Justice.
    Designated agency means any one of the eight agencies designated 
under Sec. 35.190 of 28 CFR part 35 (the Department's title II 
regulation) to implement and enforce title II of the ADA with respect 
to the functional areas within their jurisdiction.
    Dual-filed complaint or charge means a complaint or charge of 
employment discrimination that:
    (1) Arises under both section 504 and title I;
    (2) Has been filed with both a section 504 agency that has 
jurisdiction under section 504 and with the EEOC, which has 
jurisdiction under title I; and
    (3) Alleges the same facts and raises the same issues in both 
filings.
    Due weight shall mean, with respect to the weight a section 504 
agency or the EEOC shall give to the other agency's findings and 
conclusions, such full and careful consideration as is appropriate, 
taking into account such factors as:
    (1) The extent to which the underlying investigation is complete 
and the evidence is supportive of the findings and conclusions;
    (2) The nature and results of any subsequent proceedings;
    (3) The extent to which the findings, conclusions and any actions 
taken:
    (i) Under title I are consistent with the effective enforcement of 
section 504; or
    (ii) Under section 504 are consistent with the effective 
enforcement of title I; and
    (4) The section 504 agency's responsibilities under section 504 or 
the EEOC's responsibilities under title I.
    Equal Employment Opportunity Commission or EEOC refers to the 
United States Equal Employment Opportunity Commission, and, when 
appropriate, to any of its headquarters, district, area, local, or 
field offices.
    Federal financial assistance shall have the meaning, with respect 
to each section 504 agency, as defined in such agency's regulations 
implementing section 504 for Federally- assisted programs.
    Program or activity shall have the meaning defined in the 
Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 
794), as amended.
    Public entity means:
    (1) Any State or local government;
    (2) Any department, agency, special purpose district, or other 
instrumentality of a State or States or local government; and
    (3) The National Railroad Passenger Corporation, and any commuter 
authority (as defined in section 103(8) of the Rail Passenger Service 
Act, 45 U.S.C. 502(8)).
    Recipient means any State, political subdivision of any State, or 
instrumentality of any State or political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assignee, or transferee thereof, but such term 
does not include any ultimate beneficiary under such program.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
    Section 504 agency means any Federal department or agency that 
extends Federal financial assistance to programs or activities of 
recipients.
    Title I means title I of the ADA.
    Title II means subtitle A of title II of the ADA.


Sec. ____.3  Exchange of information.

    The EEOC, section 504 agencies, and designated agencies shall share 
any information relating to the employment policies and practices of a 
respondent that may assist each agency in carrying out its 
responsibilities, to the extent permissible by law. Such information 
shall include, but is not limited to, complaints, charges, 
investigative files, compliance review reports and files, affirmative 
action programs, and annual employment reports.


Sec. ____.4  Confidentiality.

    (a) When a section 504 agency or a designated agency receives 
information obtained by the EEOC, such agency shall observe the 
confidentiality requirements of section 706(b) and section 709(e) of 
the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-5(b) and 
2000e-8(e)), as incorporated by section 107(a) of the ADA, to the same 
extent as these provisions would bind the EEOC, except when the agency 
receives the same information from a source independent of the EEOC. 
Agency questions concerning the confidentiality requirements of title I 
shall be directed to the Associate Legal Counsel for Legal Services, 
Office of Legal Counsel, the EEOC.
    (b) When the EEOC receives information from a section 504 or a 
designated agency, the EEOC shall observe any confidentiality 
requirements applicable to that information.


Sec. ____.5  Date of receipt.

    A complaint or charge of employment discrimination is deemed to be 
filed, for purposes of determining timeliness, on the date the 
complaint or charge is first received by a Federal agency with section 
504 or ADA jurisdiction, regardless of whether it is subsequently 
transferred to another agency for processing.


Sec. ____.6  Processing of complaints of employment discrimination 
filed with an agency other than the EEOC.

    (a) Agency determination of jurisdiction. Upon receipt of a 
complaint of employment discrimination, an agency other than the EEOC 
shall:
    (1) Determine whether it has jurisdiction over the complaint under 
section 504 or under title II of the ADA; and
    (2) Determine whether the EEOC may have jurisdiction over the 
complaint under title I of the ADA.
    (b) Referral to the Civil Rights Division. If the agency determines 
that it does not have jurisdiction under section 504 or title II, and 
determines that the EEOC does not have jurisdiction under title I, the 
agency shall promptly refer the complaint to the Civil Rights Division. 
The Civil Rights Division shall determine if another Federal agency may 
have jurisdiction over the complaint under section 504 or title II, 
and, if so, shall promptly refer the complaint to a section 504 or a 
designated agency with jurisdiction over the complaint.
    (c) Referral to the EEOC.--(1) Referral by an agency without 
jurisdiction. If an agency determines that it does not have 
jurisdiction over a complaint of employment discrimination under either 
section 504 or title II and determines that the EEOC may have 
jurisdiction under title I, the agency shall promptly refer the 
complaint to the EEOC for investigation and processing under title I of 
the ADA.
    (2) Referral by a section 504 agency. (i) A section 504 agency that 
otherwise has jurisdiction over a complaint of employment 
discrimination under section 504 shall promptly refer to the EEOC, for 
investigation and processing under title I of the ADA, any complaint of 
employment discrimination that solely alleges discrimination against an 
individual (and that does not allege discrimination in both employment 
and in other practices or services of the respondent or a pattern or 
practice of employment discrimination), unless:
    (A) The section 504 agency determines that the EEOC does not have 
jurisdiction over the complaint under title I; or
    (B) The EEOC has jurisdiction over the complaint under title I, but 
the complainant, either independently, or following receipt of the 
notification letter required to be sent to the complainant pursuant to 
paragraph (c)(2)(ii) of this section, specifically requests that the 
complaint be investigated by the section 504 agency.
    (ii) Prior to referring an individual complaint of employment 
discrimination to the EEOC pursuant to paragraph (c)(2)(i) of this 
section (but not prior to making such a referral pursuant to paragraph 
(c)(1) of this section), a section 504 agency that otherwise has 
jurisdiction over the complaint shall promptly notify the complainant, 
in writing, of its intention to make such a referral. The notice letter 
shall:
    (A) Inform the complainant that, unless the agency receives a 
written request from the complainant within twenty days of the date of 
the notice letter requesting that the agency retain the complaint for 
investigation, the agency will forward the complaint to the EEOC for 
investigation and processing; and
    (B) Describe the basic procedural differences between an 
investigation under section 504 and an investigation under title I, and 
inform the complainant of the potential for differing remedies under 
each statute.
    (3) Referral by a designated agency. A designated agency that does 
not have section 504 jurisdiction over a complaint of employment 
discrimination and that has determined that the EEOC may have 
jurisdiction over the complaint under title I shall promptly refer the 
complaint to the EEOC.
    (4) Processing of complaints referred to the EEOC. (i) A complaint 
referred to the EEOC in accordance with this section by an agency with 
jurisdiction over the complaint under section 504 shall be deemed to be 
a dual-filed complaint under section 504 and title I. When a section 
504 agency with jurisdiction over a complaint refers the complaint to 
the EEOC, the section 504 agency shall defer its processing of the 
complaint pursuant to Sec. --.10, pending resolution by the EEOC.
    (ii) A complaint referred to the EEOC by an agency that has 
jurisdiction over the complaint solely under title II (and not under 
section 504) will be treated as a complaint filed under title I only.
    (iii) Any complaint referred to the EEOC pursuant to this section 
shall be processed by the EEOC under its title I procedures.
    (d) Retention by the agency for investigation--(1) Retention by a 
section 504 agency. A section 504 agency shall retain a complaint for 
investigation when the agency determines that it has jurisdiction over 
the complaint under section 504, and one or more of the following 
conditions are met:
    (i) The EEOC does not have jurisdiction over the complaint under 
title I; or
    (ii) The EEOC has jurisdiction over the complaint, but the 
complainant elects to have the section 504 agency process the complaint 
and the section 504 agency receives a written request from the 
complainant for section 504 agency processing within twenty days of the 
date of the notice letter required to be sent pursuant to paragraph 
(c)(2)(ii) of this section; or
    (iii) The complaint alleges discrimination in both employment and 
in other practices or services of the respondent that are covered by 
section 504; or
    (iv) The complaint alleges a pattern or practice of employment 
discrimination.
    (2) Retention by a designated agency. A designated agency that does 
not have jurisdiction over the complaint under section 504 shall retain 
a complaint for investigation when the agency determines that it has 
jurisdiction over the complaint under title II of the ADA and that the 
EEOC does not have jurisdiction over the complaint under title I.
    (3) Processing of complaints retained by an agency. Any complaint 
retained for investigation and processing by an agency pursuant to 
paragraphs (d)(1) and (d)(2) of this section will be investigated and 
processed under section 504, title II, or both, as applicable, and will 
not be considered to be dual filed under title I.


Sec. ____.7  Processing of charges of employment discrimination filed 
with the EEOC.

    (a) EEOC determination of jurisdiction. Upon receipt of a charge of 
employment discrimination, the EEOC shall:
    (1) Determine whether it has jurisdiction over the charge under 
title I of the ADA. If it has jurisdiction, except as provided in 
paragraph (b)(2) of this section, the EEOC shall process the charge 
pursuant to title I procedures.
    (2) If the EEOC determines that it does not have jurisdiction under 
title I, the EEOC shall promptly refer the charge to the Civil Rights 
Division. The Civil Rights Division shall determine if a Federal agency 
may have jurisdiction over the charge under section 504 or title II, 
and, if so, shall refer the charge to a section 504 agency or to a 
designated agency with jurisdiction over the complaint.
    (b) Retention by the EEOC for investigation. (1) The EEOC shall 
retain a charge for investigation when it determines that it has 
jurisdiction over the charge under title I.
    (2) Referral to an agency. Any charge retained by the EEOC for 
investigation and processing will be investigated and processed under 
title I only, and will not be deemed dual filed under section 504, 
except that ADA cause charges (as defined in 29 CFR 1601.21) that also 
fall within the jurisdiction of a section 504 agency and that the EEOC 
(or the Civil Rights Division, if such a charge is against a 
government, governmental agency, or political subdivision) has declined 
to litigate shall be referred to the appropriate section 504 agency for 
review of the file and any administrative or other action deemed 
appropriate under section 504. Such charges shall be deemed complaints, 
dual filed under section 504, solely for the purposes of the agency 
review and action described in this paragraph. The date of such dual 
filing shall be deemed to be the date the complaint was received by the 
EEOC.


Sec. ____.8  Processing of complaints or charges of employment 
discrimination filed with both the EEOC and a section 504 agency.

    (a) Procedures for handling dual-filed complaints or charges. As 
between the EEOC and a section 504 agency, except as provided in 
paragraph (e) of this section, a complaint or charge of employment 
discrimination that is dual filed with both the EEOC and a section 504 
agency shall be processed as follows:
    (1) EEOC processing. The EEOC shall investigate and process the 
charge when the EEOC determines that it has jurisdiction over the 
charge under title I and the charge solely alleges employment 
discrimination against an individual, unless the charging party elects 
to have the section 504 agency process the charge and the section 504 
agency receives a written request from the complainant for section 504 
agency processing within twenty days of the date of the notice letter 
required to be sent pursuant to Sec. ____.6(c)(2)(ii).
    (2) Section 504 agency processing. A section 504 agency shall 
investigate and process the complaint when the agency determines that 
it has jurisdiction over the complaint under section 504, and:
    (i) The complaint alleges discrimination in both employment and in 
other practices or services of the respondent; or
    (ii) The complaint alleges a pattern or practice of discrimination 
in employment; or
    (iii) In the case of a complaint solely alleging employment 
discrimination against an individual, the complainant elects to have a 
section 504 agency process the complaint and the section 504 agency 
receives a written request from the complainant for section 504 agency 
processing within twenty days of the date of the notice letter required 
to be sent pursuant to Sec. ____.6(c)(2)(ii).
    (b) Referral to the Civil Rights Division. If the EEOC determines 
that it does not have jurisdiction under title I, and the section 504 
agency determines that it does not have jurisdiction under section 504 
or title II, the complaint or charge shall be promptly referred to the 
Civil Rights Division. The Civil Rights Division shall determine if 
another Federal agency may have jurisdiction over the complaint under 
section 504 or title II, and, if so, shall promptly refer the complaint 
to a section 504 or a designated agency with jurisdiction over the 
complaint.
    (c) Procedures for determining whether a complaint or charge has 
been dual filed. The EEOC and each agency with jurisdiction to 
investigate and process complaints of employment discrimination under 
section 504 shall jointly develop procedures for determining whether 
complaints or charges of discrimination have been dual filed with the 
EEOC and with one or more other agencies.
    (d) Notification of deferral. The agency required to process a 
dual-filed complaint or charge under this section shall notify the 
complainant or charging party and the respondent that the complaint or 
charge was dual filed with one or more other agencies and that such 
other agencies have agreed to defer processing and will take no further 
action except as provided in Sec. ____.10 or Sec. ____.11, as 
applicable.
    (e) Exceptions. When special circumstances make deferral as 
provided in this section inappropriate, the EEOC, and an agency with 
investigative authority under section 504, may jointly determine to 
reallocate investigative responsibilities. Special circumstances 
include, but are not limited to, cases in which the EEOC has already 
commenced its investigation at the time that the agency discovers that 
the complaint or charge is a dual-filed complaint or charge in which 
the complainant has elected section 504 processing, alleged 
discrimination in both employment and in other practices or services of 
the respondent, or alleged a pattern or practice of employment 
discrimination.


Sec. ____.9  Processing of complaints or charges of employment 
discrimination filed with a designated agency and either a section 504 
agency, the EEOC, or both.

    (a) Designated agency processing. A designated agency shall 
investigate and process a complaint that has been filed with it and 
with the EEOC, a section 504 agency, or both, when either of the 
following conditions is met:
    (1) The designated agency determines that it has jurisdiction over 
the complaint under title II and that neither the EEOC nor a section 
504 agency (other than the designated agency, if the designated agency 
is also a section 504 agency) has jurisdiction over the complaint; or
    (2) The designated agency determines that it has jurisdiction over 
the complaint under section 504 and the complaint meets the 
requirements for processing by a section 504 agency set forth in 
Sec. ____.8(a)(2).
    (b) Referral by a designated agency. A designated agency that has 
jurisdiction over a complaint solely under title II (and not under 
section 504) shall forward a complaint that has been filed with it and 
with the EEOC, a section 504 agency, or both, to either the EEOC or to 
a section 504 agency, as follows:
    (1) If the designated agency determines that the EEOC is the sole 
agency, other than the designated agency, with jurisdiction over the 
complaint, the designated agency shall forward the complaint to the 
EEOC for processing under title I; or
    (2) If the designated agency determines that the section 504 agency 
is the sole agency, other than the designated agency, with jurisdiction 
over the complaint, the designated agency shall forward the complaint 
to the section 504 agency for processing under section 504; or
    (3) If the designated agency determines that both the EEOC and a 
section 504 agency have jurisdiction over the complaint, the designated 
agency shall forward the complaint to the EEOC if it determines that 
the complaint solely alleges employment discrimination against an 
individual, or it shall forward the complaint to the section 504 agency 
if it determines that the complaint meets the requirements for 
processing by a section 504 agency set out in Sec. ____.8(a)(2)(i) or 
(a)(2)(ii).


Sec. ____.10  Section 504 agency review of deferred complaints.

    (a) Deferral by the section 504 agency. When a section 504 agency 
refers a complaint to the EEOC pursuant to Sec. ____.6(c)(2) or when it 
is determined that, as between the EEOC and a section 504 agency, the 
EEOC is the agency that shall process a dual-filed complaint or charge 
under Sec. ____.8(a)(1) or Sec. ____.8(e), the section 504 agency shall 
defer further action until:
    (1) The EEOC issues a no cause finding and a notice of right-to-sue 
pursuant to 29 CFR 1601.19; or
    (2) The EEOC enters into a conciliation agreement; or
    (3) The EEOC issues a cause finding and a notice of failure of 
conciliation pursuant to 29 CFR 1601.21, and:
    (i) If the recipient is not a government, governmental agency, or 
political subdivision, the EEOC completes enforcement proceedings or 
issues a notice of right-to-sue in accordance with 29 CFR 1601.28; or
    (ii) If the recipient is a government, governmental agency, or 
political subdivision, the EEOC refers the charge to the Civil Rights 
Division in accordance with 29 CFR 1601.29, and the Civil Rights 
Division completes enforcement proceedings or issues a notice of right-
to-sue in accordance with 29 CFR 1601.28(d); or
    (4) The EEOC or, when a case has been referred pursuant to 29 CFR 
1601.29, the Civil Rights Division, otherwise resolves the charge.
    (b) Notification of the deferring agency. The EEOC or the Civil 
Rights Division, as appropriate, shall notify the agency that has 
deferred processing of the charge upon resolution of any dual-filed 
complaint or charge.
    (c) Agency review. After receipt of notification that the EEOC or 
the Civil Rights Division, as appropriate, has resolved the complaint 
or charge, the agency shall promptly determine what further action by 
the agency is warranted. In reaching that determination, the agency 
shall give due weight to the findings and conclusions of the EEOC and 
to those of the Civil Rights Division, as applicable. If the agency 
proposes to take an action inconsistent with the EEOC's or the Civil 
Rights Division's findings and conclusions as to whether a violation 
has occurred, the agency shall notify in writing the Assistant Attorney 
General, the Chairman of the EEOC, and the head of the EEOC office that 
processed the complaint. In the written notification, the agency shall 
state the action that it proposes to take and the basis of its decision 
to take such action.
    (d) Provision of information. Upon written request, the EEOC or the 
Civil Rights Division shall provide the section 504 agency with any 
materials relating to its resolution of the charge, including its 
findings and conclusions, investigative reports and files, and any 
conciliation agreement.


Sec. ____.11  EEOC review of deferred charges.

    (a) Deferral by the EEOC. When it is determined that a section 504 
agency is the agency that shall process a dual-filed complaint or 
charge under Sec. ____.8(a)(2) or Sec. ____.8(e), the EEOC shall defer 
further action until the section 504 agency takes one of the following 
actions:
    (1) Makes a finding that a violation has not occurred;
    (2) Enters into a voluntary compliance agreement;
    (3) Following a finding that a violation has occurred, refers the 
complaint to the Civil Rights Division for judicial enforcement and the 
Civil Rights Division resolves the complaint;
    (4) Following a finding that a violation has occurred, resolves the 
complaint through final administrative enforcement action; or
    (5) Otherwise resolves the charge.
    (b) Notification of the EEOC. The section 504 agency shall notify 
the EEOC upon resolution of any dual-filed complaint or charge.
    (c) Agency review. After receipt of notification that the section 
504 agency has resolved the complaint, the EEOC shall promptly 
determine what further action by the EEOC is warranted. In reaching 
that determination, the EEOC shall give due weight to the section 504 
agency's findings and conclusions. If the EEOC proposes to take an 
action inconsistent with the section 504 agency's findings and 
conclusions as to whether a violation has occurred, the EEOC shall 
notify in writing the Assistant Attorney General, the Chairman of the 
EEOC, and the head of the section 504 agency that processed the 
complaint. In the written notification, the EEOC shall state the action 
that it proposes to take and the basis of its decision to take such 
action.
    (d) Provision of information. Upon written request, the section 504 
agency shall provide the EEOC with any materials relating to its 
resolution of the complaint, including its conclusions, investigative 
reports and files, and any voluntary compliance agreement.


Sec. ____.12  Standards.

    In any investigation, compliance review, hearing or other 
proceeding, the standards used to determine whether section 504 has 
been violated in a complaint alleging employment discrimination shall 
be the standards applied under title I of the ADA and the provisions of 
sections 501 through 504, and 510, of the ADA, as such sections relate 
to employment. Section 504 agencies shall consider the regulations and 
appendix implementing title I of the ADA, set forth at 29 CFR part 
1630, and case law arising under such regulations, in determining 
whether a recipient of Federal financial assistance has engaged in an 
unlawful employment practice.


Sec. ____.13  Agency specific memoranda of understanding.

    When a section 504 agency amends its regulations to make them 
consistent with title I of the ADA, the EEOC and the individual section 
504 agency may elect to enter into a memorandum of understanding 
providing for the investigation and processing of complaints dual filed 
under both section 504 and title I of the ADA by the section 504 
agency.

Adoption of the Joint Final Rule

    The agency-specific adoption of the joint final rule, which appears 
at the end of the joint preamble, appears below:

Title 28--Judicial Administration Department of Justice

28 CFR Part 37

List of Subjects in 28 CFR Part 37

    Administrative practice and procedure, Individuals with 
disabilities, Equal employment opportunity, Intergovernmental 
relations.

    Accordingly, title 28, chapter I of the Code of Federal Regulations 
is amended as set forth below.

    Signed at Washington, D.C. this 26th day of July, 1994.

    For the Department:
Janet Reno,
Attorney General.
    Part 37 is added to 28 CFR chapter I to read as set forth at the 
end of the joint preamble.

PART 37--PROCEDURES FOR COORDINATING THE INVESTIGATION OF 
COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON 
DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND 
SECTION 504 OF THE REHABILITATION ACT OF 1973

Sec.
37.1  Purpose and application.
37.2  Definitions.
37.3  Exchange of information.
37.4  Confidentiality.
37.5  Date of receipt.
37.6  Processing of complaints of employment discriminationfiled 
with an agency other than the EEOC.
37.7  Processing of charges of employment discrimination filed with 
the EEOC.
37.8  Processing of complaints or charges of employment 
discrimination filed with both the EEOC and a section 504 agency.
37.9  Processing of complaints or charges of employment 
discrimination filed with a designated agency and either a section 
504 agency, the EEOC, or both.
37.10  Section 504 agency review of deferred complaints.
37.11  EEOC review of deferred charges.
37.12  Standards.
37.13  Agency specific memoranda of understanding.

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 794 (d); 
42 U.S.C. 12117(b); 28 CFR 0.50(l).

Title 29--Labor

Equal Employment Opportunity Commission

 29 CFR Part 1640

List of Subjects in 29 CFR Part 1640

    Administrative practice and procedure, Individuals with 
disabilities, Equal employment opportunity, Intergovernmental 
relations.
    Accordingly, title 29, chapter XIV of the Code of Federal 
Regulations is amended as set forth below.

    Signed at Washington, DC this 27th day of June, 1994.

    For the Commission:
Tony E. Gallegos,
Chairman.
    Part 1640 is added to 29 CFR chapter XIV to read as set forth at 
the end of the joint preamble.

PART 1640--PROCEDURES FOR COORDINATING THE INVESTIGATION OF 
COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON 
DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND 
SECTION 504 OF THE REHABILITATION ACT OF 1973

Sec.
1640.1  Purpose and application.
1640.2  Definitions.
1640.3  Exchange of information.
1640.4  Confidentiality.
1640.5  Date of receipt.
1640.6  Processing of complaints of employment discrimination filed 
with an agency other than the EEOC.
1640.7  Processing of charges of employment discrimination filed 
with the EEOC.
1640.8  Processing of complaints or charges of employment 
discrimination filed with both the EEOC and a section 504 agency.
1640.9  Processing of complaints or charges of employment 
discrimination filed with a designated agency and either a section 
504 agency, the EEOC, or both.
1640.10  Section 504 agency review of deferred complaints.
1640.11  EEOC review of deferred charges.
1640.12  Standards.
1640.13  Agency specific memoranda of understanding.

    Authority: 5 U.S.C. 301; 29 U.S.C. 794(d); 42 U.S.C. 12117(b).
[FR Doc. 94-18935 Filed 8-3-94; 8:45 am]
BILLING CODE 4410-01-P, 6750-06-P