[Federal Register Volume 65, Number 41 (Wednesday, March 1, 2000)]
[Proposed Rules]
[Pages 11019-11023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4596]


=======================================================================
-----------------------------------------------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AA57


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Equal Employment Opportunity Commission (the Commission or 
EEOC) proposes to amend its regulation governing federal sector equal 
employment opportunity to reflect the 1992 amendment of section 501 of 
the Rehabilitation Act of 1973. Congress amended section 501 in October 
1992 to state that the nondiscrimination standards of Title I of the 
Americans with Disabilities Act apply to section 501 of the 
Rehabilitation Act.

DATES: Comments must be received by May 1, 2000.

ADDRESSES: Comments should be submitted to the Office of the Executive 
Secretariat, Equal Employment Opportunity Commission, 1801 L Street, 
N.W., Washington, D.C. 20507. Copies of comments submitted by the 
public will be available for review on weekdays, except federal 
holidays, at the Commission's library, Room 6502, 1801 L Street, N.W., 
Washington, D.C., between the hours of 9:30 a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Carol R. Miaskoff, Assistant Legal 
Counsel, at (202) 663-4689 or TDD (202) 663-7026. This document is also 
available in the following formats: large print, braille, audio tape, 
and electronic file on computer disk. Requests for this document in an 
alternative format should be made to the Publications Information 
Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION: With the Rehabilitation Act Amendments of 
1992, Public Law 102-569, 106 Stat. 4344 (1992 Amendments or 
Rehabilitation Act Amendments), Congress added a new subsection (g) to 
section 501 of the Rehabilitation Act of 1973, 29 U.S.C. 791 (section 
501). Subsection (g) provides that the standards used to determine 
whether section 501 has been violated in a complaint alleging 
``nonaffirmative action employment discrimination'' \1\ are the 
standards of Title I of the Americans with Disabilities Act of 1990 
(ADA), as well as sections 501 through 504, and 510 of the ADA, as such 
sections relate to employment.\2\ This notice of proposed rulemaking 
(NPRM) sets forth proposed regulatory revisions to implement the 
Rehabilitation Act Amendments.
---------------------------------------------------------------------------

    \1\ Accordingly, the 1992 Amendments do not alter affirmative 
action duties under section 501. For simplicity, the phrase 
``employment discrimination'' will be used in this document in lieu 
of the statutory phrase ``nonaffirmative action employment 
discrimination.''
    \2\ See 42 U.S.C. 12101-12117, 12201-12213 (1994) (codified as 
amended).
---------------------------------------------------------------------------

Summary of Proposal

    The Commission promulgated its latest regulation under section 501 
of the Rehabilitation Act in April, 1992, several months before 
Congress enacted the Rehabilitation Act Amendments in October, 1992. 
The Commission now proposes to update this section 501 regulation, 
found at 29 CFR 1614.203, by deleting all of the current provisions and 
adding a new paragraph (b)(1) that cross-references the ADA regulation 
at 29 CFR Part 1630. \3\
---------------------------------------------------------------------------

    \3\ The fact that the ADA's definition of ``employer'' excludes 
the United States does not impact this proposal. See 42 U.S.C. 
12111(5)(B)(i); 29 CFR 1630.2 (e)(2)(i). The NPRM does not state 
that the ADA regulation applies directly to the federal government 
as an employer. Rather, the NPRM simply implements the 
Rehabilitation Act Amendments by applying ADA employment 
discrimination standards through Section 501 to the federal sector.
---------------------------------------------------------------------------

Effect of the ADA Standards

    As a general matter, the ADA regulation is more extensive than the 
requirements in place under Sec. 1614.203. \4\ In other respects, 
however, the ADA regulation closely corresponds to provisions in 
Sec. 1614.203. The following discussion compares each paragraph in 
Sec. 1614.203 to the corresponding section(s) of the ADA regulation, 
and identifies major consequences of applying the ADA regulation to the 
federal sector.
---------------------------------------------------------------------------

    \4\ Under the 1992 Amendments, the federal sector is subject to 
all ADA employment discrimination standards through Section 501.
---------------------------------------------------------------------------

Definitions: Change from Paragraph 1614.203(a) to 29 CFR 1630.2

Subparagraphs 1614.203(a)(1)--(a)(5)
    The Commission proposes to delete 29 CFR 1614.203(a)(1)--(a)(5) 
because these sections are repetitive of ADA definitions at 29 C.F.R. 
1630.2. For example, the definition of ``disability'' in the two 
regulations is virtually identical, referring in both instances to an 
impairment that substantially limits one or more major life activities, 
a record of such a substantially limiting impairment, or being regarded 
as having such a substantially limiting impairment.\5\ The ADA 
regulation also defines several important terms that are not defined in 
Sec. 1614.203, such as ``essential functions,'' ``qualification 
standards,'' and ``direct threat.''
---------------------------------------------------------------------------

    \5\ Compare 29 CFR 1614.203(a)(1) with 29 CFR 1630.2(g). In a 
decision focused closely on the wording of the ADA definition of 
``disability,'' the Supreme Court held in Sutton v. United Airlines, 
119 S. Ct. 2139, 9 AD Cas. (BNA) 673 (1999), that the positive and 
negative effects of corrective or mitigating measures must be 
considered when judging whether an impairment substantially limits 
one or more of an individual's major life activities and, therefore, 
whether the individual is ``disabled'' under the first prong of the 
ADA's definition of ``disability.'' See also Murphy v. United Parcel 
Service, Inc., 119 S. Ct. 2133, 9 AD Cas. (BNA) 691 (1999); and 
Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162, 9 AD Cas. (BNA) 
694 (1999). The Court's decision in Sutton does not affect the text 
of the ADA regulation because the regulation does not address 
mitigating measures. The Sutton holding, however, alters the 
Commission's subregulatory ADA guidance to the extent such guidance 
sets forth a position on mitigating measures that is contrary to the 
Court's holding.
---------------------------------------------------------------------------

Subparagraph 1614.203(a)(6): Safety Issues and ``Qualified Individual 
with [a Disability]''
    The Commission proposes to delete 29 CFR 1614.203(a)(6) because it 
is inconsistent with the ADA's standard on safety issues. Under the 
ADA, an employer can disqualify an individual from employment if the 
employer shows that the individual poses a ``direct threat'' to health 
and safety, even after considering reasonable accommodation. The ADA 
regulation defines ``direct threat'' as a ``significant risk of 
substantial harm,'' and states that an employer must consider 
individualized medical or other objective evidence to decide if a 
particular individual poses a ``direct threat.'' 29 CFR 1630.2(r). By 
contrast, the old subparagraph 1614.203(a)(6) did not even use ``direct

[[Page 11020]]

threat'' as a defined term, and instead, addressed safety concerns by 
requiring the employee to show that s/he could work without endangering 
health or safety as part of the larger showing that s/he was a 
``qualified individual with a disability.''
    The Commission has applied this ADA ``direct threat'' standard in 
federal sector decisions subsequent to the 1992 Amendments. See Kahout 
v. USPS, EEOC Appeal No. 01954900 (June 19, 1997); Hobbs v. USPS, EEOC 
Appeal No. 01944181 (January 26, 1996); Robinson v. USPS, EEOC Request 
No. 05940034 (September 16, 1994).
Paragraph 1614.203(b): Nondiscrimination Obligation and Model Employer
    The Commission proposes to redesignate current paragraph (b) as new 
paragraph (a), and to replace the term ``handicaps'' with 
``disabilities'' in its text.\6\ Thus, new paragraph (a) sets forth the 
basic principle that federal agencies have an obligation not to 
discriminate in employment on the basis of disability. Moreover, 
paragraph (a) states that ``[t]he [f]ederal [g]overnment shall be a 
model employer of individuals with disabilities.'' Finally, this 
paragraph requires agencies to give full consideration to the hiring, 
placement, and advancement of qualified individuals with mental and 
physical disabilities.
---------------------------------------------------------------------------

    \6\ The term ``handicaps'' is changed to ``disabilities'' 
throughout this document.
---------------------------------------------------------------------------

Reasonable Accommodation and Undue Hardship: Change From Paragraph 
1614.203(c) to 29 CFR 1630.2(o), (p) and 1630.9
    The Commission proposes to delete 29 CFR 1614.203(c) and instead 
apply the pertinent ADA standards, thereby providing federal employers 
with more guidance about reasonable accommodation and undue hardship 
than the pre-ADA standards.\7\ For example, the ADA regulation defines 
the phrase ``reasonable accommodation'' as ``a means by which barriers 
to the equal employment opportunity of an individual with a disability 
are removed or alleviated,'' and thereby articulates a basic principle 
that may help federal employers and employees to evaluate potential 
accommodations.\8\ The ADA regulation also states that, if an employee 
requests reasonable accommodation but the most appropriate 
accommodation is not obvious, the employer needs ``to initiate an 
informal, interactive process with the qualified individual with a 
disability'' to identify an effective accommodation. See 29 C.F.R. 
1630.2(o)(3). In terms of specific accommodations, the ADA regulation 
adds reassignment and ``modification of examinations, training 
materials, or policies'' to the familiar list included in the pre-ADA 
regulation. See 29 CFR 1630.2(o)(2).\9\ Finally, the ADA regulation 
provides an extensive discussion of the employer defense of ``undue 
hardship,'' directing the employer to consider a range of financial and 
operational factors to evaluate whether a particular reasonable 
accommodation would impose an undue hardship on its operations.\10\
---------------------------------------------------------------------------

    \7\ For a discussion of reasonable accommodation and undue 
hardship, see 29 CFR 1630.2(o), (p) (defining reasonable 
accommodation and undue hardship, respectively) and 29 CFR 1630.9 
(discussing failure to provide reasonable accommodation as a 
discriminatory practice). The Commission issued guidance on 
reasonable accommodation and undue hardship in its ``EEOC 
Enforcement Guidance on Reasonable Accommodation and Undue Hardship 
Under the Americans with Disabilities Act,'' 8 FEP Manual (BNA) 
405:7601(1999) [hereinafter ``Guidance on Reasonable Accommodation 
and Undue Hardship'']. The analysis in this Enforcement Guidance 
applies to federal sector employment discrimination complaints 
arising under section 501 of the Rehabilitation Act. See id.
    \8\ See 29 CFR part 1630 app. 1630.9.
    \9\ A reasonable accommodation that has increasing significance 
in the federal workplace is providing accessible electronic and 
information technology to make facilities and services readily 
accessible to individuals with disabilities. See 29 CFR 
1630.2(o)(2)(i) (it is a reasonable accommodation to make ``existing 
facilities used by employees readily accessible to and usable by 
individuals with disabilities''); id. at 1630.2(o)(2)(ii) (``other 
similar accommodations for individuals with disabilities'' may be 
required).
    \10\ A reasonable accommodation imposes an ``undue hardship'' on 
an employer's operation when it results in ``significant difficulty 
or expense.'' 42 U.S.C. 12111(10). In assessing undue hardship, an 
employer should consider several factors including: (1) The nature 
and net cost of the accommodation; (2) the overall financial 
resources of the facility or facilities involved in making the 
accommodation; (3) the overall financial resources of the covered 
entity; (4) the type of operation or operations of the covered 
entity, including the composition, structure, and functions of the 
workforce, and the geographic separateness and the administrative 
and fiscal relationship of the facility or facilities in question to 
the covered entity; and (5) the impact of the accommodation on the 
operation of the facility. See 42 U.S.C. 12111(10)(B); 29 C.F.R. 
1630.2(p)(2).
---------------------------------------------------------------------------

    For the federal employer, the most notable change resulting from 
the 1992 Amendments is that reassignment is now treated as a reasonable 
accommodation pursuant to express language in the ADA. 42 U.S.C. 
12111(9)(B). An employer's duty to provide reassignment is limited only 
by ``undue hardship.'' The change will be discussed in detail in the 
section titled ``Reassignment.''
Employment Criteria: Change from Paragraph 1614.203(d) to 29 CFR 
1630.10 and 1630.11
    The Commission proposes to eliminate paragraph (d), which governed 
the use of tests and selection criteria, and instead apply the ADA 
standards at 29 CFR 1630.10 and 1630.11. Under the ADA, it is unlawful 
to use qualification standards, tests, or other selection criteria that 
screen out or tend to screen out individuals with disabilities, based 
on disability, unless the standards or criteria are shown to be job-
related and consistent with business necessity. 29 CFR 1630.10. 
Consideration must be given to whether an individual with a disability 
can satisfy a qualification standard or other selection criteria with 
reasonable accommodation. See 29 CFR 1630.15.
    Moreover, an individual with a disability must not be excluded from 
employment simply because his/her disability prevents him/her from 
taking a test, or negatively influences the results of a test. The 
Interpretive Guidance appended to the ADA regulation states that 
employment tests must be administered using accessible test sites and 
formats, and in a way that measures ability rather than disability. 29 
CFR part. 1630 app. 1630.11.
Preemployment Inquiries: Change from Paragraph 1614.203(e) to 29 C.F.R. 
1630.13 and 1630.14
    The Commission proposes to delete paragraph (e) and apply the 
pertinent ADA standards at 29 CFR 1630.13 and 1630.14. Under the ADA 
standards, a federal agency employer remains prohibited from making 
inquiries as to whether an applicant is an individual with a 
disability, or as to the nature or severity of such disability, and may 
not conduct a pre-offer medical examination. See 29 CFR 1630.13(a). To 
the extent that an employer wants to determine if an applicant's 
medical condition will prevent him/her from performing a job, the ADA 
only permits a few specified preemployment inquiries.\11\ By contrast, 
the preemployment inquiry provision in old paragraph 1614.203(e) gave 
agencies broader discretion to ask applicants

[[Page 11021]]

about their medical conditions, expressly permitting agencies to 
inquire ``into an applicant's ability to meet the essential functions 
of the job, or the medical qualification requirements if applicable, 
with or without reasonable accommodation, * * * i.e. the minimum 
abilities necessary for safe and efficient performance of the duties of 
a position.''
---------------------------------------------------------------------------

    \11\ For a detailed discussion of pertinent ADA requirements, 
see the Appendix to 29 CFR 1630.14, and ``ADA Enforcement Guidance: 
Preemployment Disability-Related Questions and Medical 
Examinations,'' 8 FEP Manual(BNA) 405:7191 (1995) [hereinafter 
``Guidance on Preemployment Inquiries'']. Note that the ADA also 
permits pre-offer disability-related inquiries that are necessary 
for affirmative action purposes. See Guidance on Preemployment 
Inquiries, 8 FEP Manual (BNA) at 405:7196-97 (1995). The proposed 
deletion of paragraph (e) will not affect federal sector affirmative 
action efforts.
---------------------------------------------------------------------------

    The ADA allows medical inquiries or examinations after a 
conditional offer of employment but before work begins, assuming all 
individuals in the same job category are subjected to the same 
inquiries or examinations regardless of disability. See 29 CFR 
1630.14(b). An employer may ask specific individuals for more follow-up 
information if the request is medically related to the previously 
obtained information.\12\ Under the ADA, however, an employer who 
withdraws a conditional offer of employment based on disability-related 
information obtained during a post-offer inquiry or examination can 
defend against a charge of discrimination only by showing: (1) that it 
used exclusionary criteria that were job-related and consistent with 
business necessity; and (2) that it considered reasonable accommodation 
but the person could not have performed the essential job functions 
even with reasonable accommodation. See 29 C.F.R. 1630.14(b)(3).
---------------------------------------------------------------------------

    \12\ See supra note 11, Guidance on Preemployment Inquiries, 8 
FEP Manual (BNA) at 405:7197-99 (1995).
---------------------------------------------------------------------------

    The ADA also prohibits employers from making disability-related 
inquiries or requiring medical examinations of employees unless those 
inquiries or examinations are job-related and consistent with business 
necessity. 42 USC 12112(d)(4); 29 CFR part. 1630, app. 1630.14(c).\13\ 
Finally, the federal employer should note that part 1630 imposes 
confidentiality restrictions on all medical information obtained from 
employees and applicants. See 29 CFR 1630.14 (b)(1) and (c)(1).
---------------------------------------------------------------------------

    \13\ For a discussion of this standard, see ``EEOC Enforcement 
Guidance on the Americans with Disabilities Act and Psychiatric 
Disabilities,'' at question 14, 8 FEP Manual (BNA) 405:7461,7467-70 
(1997).
---------------------------------------------------------------------------

Physical Access to Buildings: Change from Paragraph 1614.203(f) to 29 
CFR part 1630
    The Commission proposes to delete paragraph 1614.203(f), concerning 
physical access to buildings. If an applicant or employee is denied 
equal employment opportunity because she cannot obtain physical access 
to a building, then the nondiscrimination standards of part 1630 
control.
    As a practical matter, federal agencies' obligations in this area 
are not expected to change significantly. Under the old paragraph 
1614.203(f), an agency may not have an inaccessible facility. 
Additionally, federal agencies already must comply with the 
Architectural Barriers Act of 1968 and the ADA's accessibility 
requirements. By adopting the ADA's employment nondiscrimination 
standards, the NPRM would require agencies to provide reasonable 
accommodation if an applicant or employee would be denied equal 
employment opportunity because she could not obtain physical access to 
a building.
Reassignment: Change From Paragraph 1614.203(g) to New Paragraph 
1614.203(b)(2)
    The Commission proposes to delete paragraph 1614.203(g) and to add 
a new paragraph 1614.203(b)(2) stating the ADA's requirement of 
reasonable accommodation as it pertains to reassignment. In the ADA, 
Congress listed ``reassignment to a vacant position'' as a form of 
reasonable accommodation. 42 U.S.C. 12111(9)(B). The ADA treats 
reasonable accommodation as a nondiscrimination obligation.\14\ An 
employer's duty to provide reassignment, like any reasonable 
accommodation, is limited by ``undue hardship.'' By applying the ADA 
standard to reassignment, federal employees will now benefit from the 
same protections provided employees in the private sector.
---------------------------------------------------------------------------

    \14\ Consequently, the Commission now considers reassignment a 
reasonable accommodation rather than affirmative action for purposes 
of Section 501. Cf. 57 Fed. Reg. 12634, 12637-12638 (April 10, 1992) 
(preamble to regulation at 29 CFR 1614.203(g), which was issued 
before the 1992 Amendments, stated that reassignment was affirmative 
action).
---------------------------------------------------------------------------

The Obligation To Reassign
    Reassignment to a vacant position is the reasonable accommodation 
of last resort and is required only if: (1) There are no effective 
accommodations that will enable the employee to perform the essential 
functions of his/her position, or (2) all other reasonable 
accommodations would impose an undue hardship. See S. Rep. No. 101-116, 
at 31 (1989); H.R. Rep. No. 101-485, pt. 2 at 63 (1990); Smith v. 
Midland Brake, Inc., 180 F.3d 1154, 9 AD Cas. (BNA) 738 (10th Cir. 
1999) (en banc); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 8 AD Cas. 
(BNA) 1093 (D.C. Cir. 1998) (en banc); Stone v. City of Mount Vernon, 
118 F.3d 92, 100-01, 6 AD Cas. (BNA) 1685, 1693 (2d Cir. 1997), cert. 
denied, 118 S. Ct. 1044 (1998); Kitaura v. USPS, EEOC Petition No. 
03980089 (March 11, 1999); but see, e.g., Foreman v. Babcock & Wilcox 
Co., 117 F.3d 800, 7 AD Cas. (BNA) 331 (5th Cir. 1997), cert denied, 
118 S. Ct. 1050 (1998). Reassignment means that the employee receives 
the vacant \15\ position if s/he is qualified for it. Cf. Smith, supra 
(stating that ``the reassignment obligation must mean something more 
than merely allowing a disabled person to compete equally with the rest 
of the world for a vacant position'').
---------------------------------------------------------------------------

    \15\ A position is ``vacant'' if it is available when the 
employee asks for reasonable accommodation, or if it is expected to 
become available within a reasonable amount of time. See 29 CFR part 
1630 app. Sec. 1630.2(o). In the federal government, a position is 
vacant for purposes of reassignment if it is funded and not yet 
encumbered, even if the agency has already posted a notice 
advertising the position. See Schuetter v. DOD, EEOC Petition No. 
03970140 (January 15, 1999). An employer is not obligated to create 
a new position to implement a reassignment. See Mitchell v. DOD, 
EEOC Petition No. 03930164 (January 21, 1994).
---------------------------------------------------------------------------

The Employee Must Be Qualified

Probationary Employee
    A probationary employee with a disability is eligible for 
reassignment to a new position as long as s/he adequately performed the 
essential functions of her/his original position, with or without 
reasonable accommodation, before the need for reassignment arose. The 
longer a newly hired probationary employee has adequately performed the 
essential functions of the original job, with or without reasonable 
accommodation, the more likely it is that reassignment is appropriate 
when the employee becomes unable to continue performing such functions 
due to a disability.\16\
---------------------------------------------------------------------------

    \16\ See Guidance on Reasonable Accommodation and Undue 
Hardship, supra note 7, 8 FEP Manual (BNA) at 405:7622-23 (1999). 
Applicants are not entitled to reassignment. An applicant for a 
position must be qualified for, and be able to perform with or 
without reasonable accommodation, the essential functions of the 
position s/he seeks. See 29 CFR part 1630 app. Sec. 1630.2(o).
---------------------------------------------------------------------------

Employee Qualified for New Job
    An employee is ``qualified'' for the new position if s/he: (1) 
Satisfies the requisite skill, experience, education, and other job-
related requirements of that position; and (2) can perform the 
essential functions of the position, with or without reasonable 
accommodation. See Stone v. Mount Vernon, 118 F.3d 92, 100-01, 6 AD 
Cas. (BNA) 1685, 1693 (2d Cir. 1997), cert. denied, 118 S. Ct. 1044 
(1998). The employer is not obliged to provide training so that an 
employee can acquire new skills for a particular reassignment. However, 
the employer must provide any training routinely given to other 
individuals

[[Page 11022]]

hired for, or transferred into, the same job. See Quintana v. Sound 
Distribution Corp., 6 AD Cas. (BNA) 842, 846 (S.D.N.Y. 1997). See also 
Schuetter v. DOD, EEOC Petition No. 03970140 (January 15, 1999).
The Interactive Process
    As with reasonable accommodation generally, the federal employer 
and the individual with a disability who has requested reassignment may 
need to engage in an interactive process to identify an appropriate 
position. The employer may not know about all of the individual's 
skills, and the individual may not be aware of the range of available 
positions. See Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997). The 
interactive process need not be onerous. The aim is to identify the 
employee's qualifications, potential new jobs, and the employee's 
willingness to accept a particular transfer, through a flexible process 
involving a two-way dialogue between the employer and the qualified 
individual with a disability.

The Extent of the Agency's Duty to Search for Another Position

The Federal Employer Must Search for Vacant Positions
    The federal employer must search for available vacancies. The 
employee does not have the burden of identifying open positions without 
the employer's assistance. Taylor v. Phoenixville School District, 1999 
WL 649376 (3d Cir. August 18, 1999). Of course, the employee should 
assist the employer in identifying appropriate positions, to the extent 
s/he can gather such information.\17\
---------------------------------------------------------------------------

    \17\ Additionally, in a unionized workplace, the employer and 
the union, as a collective bargaining representative, must negotiate 
in good faith over a variance to the collective bargaining agreement 
(CBA) if no reasonable accommodation exists that avoids violating 
the CBA. See Guidance on Reasonable Accommodation and Undue 
Hardship, supra note 7, 8 FEP Manual (BNA) at 405: 7633 (1999).
---------------------------------------------------------------------------

    The employer first should search for vacant positions that are 
equivalent to the current position in terms of pay, status, and other 
relevant factors (e.g., geographical location or benefits), and for 
which the individual is qualified. When it is not possible to identify 
a vacant position that is substantially equivalent to the original job, 
the federal employer needs to broaden its search. During interagency 
coordination, a question was raised about when a job technically 
becomes ``vacant'' and therefore available for reassignment in the 
federal government. The Commission solicits comment on this point.
    The ADA does not limit the obligation to reassign to positions 
within the same appointing authority or commuting area as the original 
job.\18\ Indeed, reassignment to a different component of the same 
department may now be required, barring undue hardship. See Kitaura 
supra. If an employee is being reassigned to a different geographical 
area, s/he must pay for any relocation expenses unless the employer 
routinely pays such expenses when granting other employees' requests 
for transfers.\19\
---------------------------------------------------------------------------

    \18\ See Gile v. United Airlines, Inc., 95 F.3d 492, 5 AD Cas. 
(BNA) 1466 (7th Cir. 1996) (stating that lower court erroneously 
limited a plaintiff's request for documents since plaintiff should 
be able to present evidence about reassignment possibilities in 
other departments); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 
8 AD Cas. (BNA) 1505 (7th Cir. 1998) (stating that company conducted 
conscientious intra-company search for position, even though its 
efforts could not result in reassignment); see Kitaura supra; but 
see Riley v. Weyerhaeuser Paper Co., 898 F. Supp. 324 (W.D.N.C. 
1995), 5 AD Cas. (BNA) 325, aff'd 77 F.3d 470, 8 AD Cas. (BNA) 1536 
(4th Cir. 1996).
    \19\ If an employee freely states that s/he would not move to a 
different geographical area, the federal employer need not continue 
its search for a position in that geographic area.
---------------------------------------------------------------------------

The Undue Hardship Defense
    Because Congress deemed reassignment to be a reasonable 
accommodation, a federal employer can deny a request for reassignment 
if it poses an undue hardship. See 42 U.S.C. 12111(10)(B); 29 CFR 
1630.2(p). See supra note 10. The Commission evaluates undue hardship 
on a case-by-case basis. For example, if a federal employer claims that 
it would be an undue hardship to search for vacancies at different 
facilities in the same department, the Commission would examine the 
administrative and financial links between the department and its 
separate facilities to determine whether such a search would, in fact, 
impose ``significant difficulty or expense'' on the federal employer. 
Reassignment outside of the department--to a different department in 
the federal government--will be presumed to be an undue hardship at 
this time. Under current procedures, one federal department cannot 
compel another to accept a transferred employee, even as a reasonable 
accommodation.

Proposal To Delete Paragraph 1614.203(h): Exclusion From Definition of 
``Individual(s) With [Disabilities]''

    This paragraph is deleted because it is duplicative of equivalent 
provisions in part 1630. Deletion of this paragraph does not change the 
nondiscrimination standards applicable to federal employers.

Effective Date of a Finalized Rule After Public Comment

    This regulation would be effective 30 days after publication of a 
final rule in the Federal Register. Like the recently-finalized 
procedural changes to part 1614, the current NPRM would apply to all 
pending Section 501 discrimination complaints.

Additional Amendment

    The Commission proposes to delete the provision in 
Sec. 1614.102(a)(9) which refers to reassignment pursuant to 
Sec. 1614.203(g).
    The Commission invites comment on these proposed changes. The 
Commission will consider all comments received in conjunction with this 
NPRM.

Regulatory Procedures

Executive Order 12866

    Pursuant to Executive Order 12866, EEOC has coordinated this final 
rule with the Office of Management and Budget. Under section 3(f)(1) of 
Executive Order 12866, EEOC has determined that the regulation will not 
have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State or local tribal governments or communities. 
Therefore, a detailed cost-benefit assessment of the regulation is not 
required.

Paperwork Reduction Act

    This regulation contains no information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    In addition, 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 applies exclusively to employees 
and agencies and departments of the federal government. For this 
reason, a regulatory flexibility analysis is not required.

List of Subjects in 29 CFR Part 1614

    Administrative practice and procedure, Equal employment 
opportunity, Government employees, Individuals with disabilities.


[[Page 11023]]


    For the Commission.
Ida L. Castro,
Chairwoman.
    For the reasons set forth in the preamble, EEOC proposes to amend 
Chapter XIV of Title 29 of the Code of Federal Regulations as follows:

PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

    1. the authority citation for part 1614 continues to read as 
follows:

    Authority: 29 U.S.C. 206(d), 633(a), 791 and 794a; 42 U.S.C. 
2000e-16; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218; E.O. 11222, 3 
CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1969 Comp., p. 133; 
E.O. 12106, 3 CFR 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3 
CFR 1978 Comp., p. 321.


Sec. 1614.102  [Amended]

    2. Section 1614.102 is amended by removing paragraph (a)(9) and 
redesignating paragraphs (a)(10) through (a)(14) as paragraphs (a)(9) 
through (a)(13), respectively.
    3. Section 1614.203 is revised to read as follows:


Sec. 1614.203  Rehabilitation Act.

    (a) Model employer. The Federal Government shall be a model 
employer of individuals with disabilities. Agencies shall not 
discriminate against qualified individuals with disabilities. Agencies 
shall give full consideration to the hiring, placement, and advancement 
of qualified individuals with disabilities.
    (b) ADA standards. (1) The standards used to determine whether 
section 501 of the Rehabilitation Act of 1973 has been violated in a 
complaint alleging nonaffirmative action employment discrimination 
under this part shall be the standards applied under Titles I and V of 
the Americans with Disabilities Act of 1990 (42 U.S.C. 12101-12102, 
12111-12117, 12201-12213) as such sections relate to employment. These 
standards are set forth in the Commission's ADA regulations at 29 CFR 
part 1630.
    (2) Agencies must provide reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified individual 
with a disability, unless the agency can demonstrate that the 
accommodation would impose an undue hardship. Reasonable accommodation 
may include reassignment to a vacant position. Reassignment is the 
reasonable accommodation of last resort and is required only after it 
has been determined either that:
    (i) There are no effective accommodations that will enable the 
employee to perform the essential functions of his/her current 
position; or
    (ii) All other accommodations would impose an undue hardship.

[FR Doc. 00-4596 Filed 2-29-00; 8:45 am]
BILLING CODE 6570-01-P