[Federal Register Volume 67, Number 98 (Tuesday, May 21, 2002)]
[Rules and Regulations]
[Pages 35732-35735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-12543]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1614

RIN 3046-AA57


Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.

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SUMMARY: The Equal Employment Opportunity Commission is publishing this 
final rule to implement the amendment of section 501 of the 
Rehabilitation Act, under the Rehabilitation Act Amendments of 1992. 
This rule continues the movement towards full integration of 
individuals with disabilities into the Federal workforce.

DATES: Effective June 20, 2002.

FOR FURTHER INFORMATION CONTACT: Carol R. Miaskoff, Assistant Legal 
Counsel, or Mary Kay Mauren, Senior Attorney Advisor, (202) 
663-4689 (voice), (202) 663-7026 (TDD). 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: Increasing the employment of individuals 
with disabilities is one of the goals of section 501 of the 
Rehabilitation Act of 1973, as amended (section 501),\1\ and Title I 
and selected sections of Title V of the Americans with Disabilities Act 
(ADA).\2\ Section 501 has prohibited the federal government, as an 
employer, from discriminating on the basis of disability since the late 
1970's. Title I of the ADA applied similar prohibitions to private 
sector and state and local government employers in 1990. To promote 
consistent and full enforcement of these two laws, Congress amended 
section 501 in 1992 \3\ to adopt the employment nondiscrimination 
standards of the Americans with Disabilities Act (ADA).\4\ In a Notice 
of Proposed Rulemaking (NPRM), the U.S. Equal Employment Opportunity 
Commission (EEOC or Commission) proposed to implement the 1992 
Amendments by deleting the text of its old section 501 regulation, at 
29 CFR 1614.203, and inserting new language to cross-reference the 
Commission's existing ADA regulation at 29 CFR part 1630.\5\ The 
Commission now responds to public comments submitted in response to 
this NPRM and issues a final rule. Consistent with President George W. 
Bush's New Freedom Initiative, this final rule continues "the 
movement towards full integration of individuals with 
disabilities" into the workforce and promotes full compliance 
with section 501.\6\
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    \1\ 29 U.S.C. 791(1994) (codified as amended). For a 
summary of the early history of Section 501, see Prewitt v. United 
States Postal Service, 662 F.2d 292, 301-304 (5th Cir. 1981).
    \2\ 42 U.S.C. 12101-12117, 12201-12213 (1994) 
(codified as amended). This goal was reaffirmed by the New Freedom 
Initiative of President George W. Bush (Integrating Americans with 
Disabilities into the Workforce, Part C: Compliance with the 
Americans with Disabilities Act) (Feb. 1, 2001), at http://www.whitehouse.gov/news/freedominitiative/freedominitiative.html 
(visited 1/09/02) [hereinafter New Freedom Initiative].
    \3\ Rehabilitation Act Amendments of 1992, Pub. L. 
102-569, 106 Stat. 4344, 4424 (1992) (codified as amended at 
29 U.S.C. 791(g) (1994)) (1992 Amendments).
    \4\ The 1992 Amendments refer to Title I and selected 
sections of Title V (sections 501 through 504 and 510).
    \5\ Notice of Proposed Rulemaking to Update 29 CFR 
1614.203, 65 FR 11019, March 1, 2000.
    \6\ New Freedom Initiative, supra note 2.
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Overview of Public Comments

    The Commission received fifteen comments in response to this NPRM. 
Of these comments, four were from federal agencies, two were from 
federal unions, two from advocacy groups representing persons with 
disabilities, one from a group representing employment attorneys, and 
one from a state agency. The remaining submissions were from four 
individuals and one group not specifically involved with federal 
employees or disability rights. The Commission has carefully considered 
all of the comments and, as a result, has made some changes to the 
proposed regulation. The public comments and the text of the final 
regulation are discussed below.

Nondiscrimination and Model Employer

    An advocacy group for individuals with disabilities expressed 
concern that paragraph (a) of the proposed rule specifically referenced 
hiring, placement, and advancement of qualified individuals with 
disabilities, but did not enumerate all the types of employment 
discrimination prohibited by the ADA. To clarify that the ADA's broad 
nondiscrimination standards apply in the federal sector, this commenter 
suggested cross-referencing the ADA's list of prohibited activities in 
paragraph (a) and also deleting the specific references to hiring, 
placement, and advancement.
    The Commission concludes that these changes are not necessary 
because paragraph (b) of the rule already cross references the ADA 
statute and regulation. Specifically, paragraph (b) states that the 
ADA's nondiscrimination standards apply to section 501 complaints, and 
cross references the ADA rule at 29 CFR part 1630. Title I of the ADA, 
and the ADA rule at 29 CFR part 1630, both enumerate many types of 
prohibited employment discrimination. In light of this cross-reference, 
it is unnecessary to supplement paragraph (a) to establish that the 
ADA's broad discrimination prohibitions apply under section 501. 
Furthermore, for purposes of simplicity and clarity, the Commission 
makes paragraph (b) the sole reference to nondiscrimination in the 
final rule, deleting the general nondiscrimination language from 
paragraph (a).

Using the ADA Rule To Implement the 1992 Amendments

    One commenter questioned the Commission's proposal to implement the 
1992 Amendments by cross-referencing its ADA regulation at 29

[[Page 35733]]

CFR part 1630. The Commission remains convinced that this is the most 
efficient way to implement the 1992 Amendments. The Commission's ADA 
regulation at 29 CFR part 1630 implements the ADA employment provisions 
that are cited in the 1992 Amendments.\7\
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    \7\ The 1992 Amendments cite two sections in Title V of 
the ADA that are not implemented by the Commission's ADA regulation 
because they do not concern employment. These are sections 502 
(state immunity) and 504 (regulations by the Architectural and 
Transportation Barriers Compliance Board). Compare 29 U.S.C. 791(g) 
(1994) with 29 CFR 1630.1(a) (2001).
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    This commenter also correctly noted that the ADA's statutory 
definition of "employer" excludes the United States. On 
this basis, the commenter contended that the ADA cannot cover federal 
employers. This commenter misapprehended both the purpose and effect of 
the 1992 Amendments and this regulation. Neither the 1992 Amendments 
nor this regulation result in the ADA directly covering federal 
employers. Rather, section 501 of the Rehabilitation Act continues to 
cover federal employers. Due to the text of the 1992 Amendments, 
however, section 501 now incorporates by reference the ADA's 
nondiscrimination standards. The ADA's statutory definition of 
"employer" does not impact the coverage of section 501.

Self-Identification and Affirmative Action

    One advocacy group for individuals with disabilities asserted that 
old subparagraph 1614.203(e)(3), which permitted self-identification 
for affirmative action purposes, should be retained so that federal 
agencies can comply with their affirmative action responsibilities 
under section 501.\8\ The Commission has considered the comment but 
concludes that old subparagraph 1614.203(e)(3) should be deleted in its 
entirety. Contrary to the commenter's assertions, the ADA standard does 
not prevent federal employers from satisfying their section 501 
affirmative action obligations. The ADA permits affirmative action 
disability-related inquiries of job applicants if certain requirements 
are met. Specifically, employers may ask applicants to voluntarily 
self-identify as individuals with disabilities if the employer is 
undertaking affirmative action because of a federal, state, or local 
law (including a veterans' preference law) that requires affirmative 
action for individuals with disabilities.\9\ This would include the 
government's affirmative action efforts under section 501. See 29 
U.S.C. 791(b).
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    \8\ Old subparagraph 1614.203(e)(3) states: "To 
enable and evaluate affirmative action to hire, place or advance 
individuals with handicaps, the agency may invite applicants for 
employment to indicate whether and to what extent they are 
handicapped * * *"
    \9\ The employer also must state clearly on any written 
questionnaire, or orally if no written questionnaire is used, that 
the information requested is used solely in connection with its 
affirmative obligations or efforts, and that the information is 
being requested on a voluntary basis and will be kept confidential 
and used in accordance with the ADA (or section 501 of the 
Rehabilitation Act). The information must also be on a form that is 
kept separate from the application. See "ADA Enforcement 
Guidance: Preemployment Disability-Related Questions and Medical 
Examinations," at 12, 8 FEP Manual (BNA) 405:7191, 
7196-97 (1995) [hereinafter "Guidance on Preemployment 
Inquiries"]. (This and other ADA guidances are available 
through the Internet at http://www.eeoc.gov.) However, the 
information on a separate form may be provided to hiring officials 
or special appointing authorities to fulfill affirmative action 
obligations.
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Definition of Disability

    An advocacy group for individuals with disabilities contended that 
the U.S. Supreme Court's decision in Sutton v. United Airlines, Inc., 
527 U.S. 471 (1999), should not apply to section 501. The Commission 
has considered this comment but does not adopt it. The ADA definition 
of "disability" as construed by the Supreme Court must 
apply to section 501.\10\
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    \10\ The Commission notes that the Sutton analysis has 
been applied in section 501 decisions. See Crocker v. Runyon, 207 
F.3d 314, 319 n.1 (6th Cir. 2000). See also Flynn-Banigan v. Dep't 
of Justice, EEOC Appeal No. 01973401 (August 3, 2000), Pulcini v. 
Social Security Admin., EEOC Appeal No. 01990835 (July 27, 2000).
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Safety Issues and "Direct Threat'

    A federal agency commented that the NPRM imposes a burden on 
federal employers because they may need to determine whether an 
applicant or employee poses a "direct threat" to health or 
safety. The Commission has considered this comment but has decided 
that, pursuant to the 1992 Amendments, the same "direct 
threat" standard must apply to federal employers as to private 
employers. The NPRM correctly stated the ADA standard for "direct 
threat," which requires employers to assess each individual's 
ability to safely perform a particular job, based on the most current 
medical assessment or other objective evidence.\11\
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    \11\ The Supreme Court is deciding an ADA direct threat 
case this term. See Chevron U.S.A., Inc. v. Echazabal, No. 
00-1406 (U.S. argued February 27, 2002). The Commission 
already has applied the ADA "direct threat" standard to 
federal employers in its decisions. Kahout v. United States Postal 
Service, EEOC Appeal No. 01954900 (June 19, 1997); Hobbs v. United 
States Postal Service, EEOC Appeal No. 01944181 (January 26, 1996); 
Robinson v. United States Postal Service, EEOC Request No. 05940034 
(September 16, 1994). See 29 CFR 1630.2(r)(2001)(definition of 
"direct threat"). For a discussion of when employers may 
request medical information necessary for assessing "direct 
threat," see "Enforcement Guidance on Disability-Related 
Inquiries and Medical Examinations of Employees under the Americans 
with Disabilities Act," question 5, n.39, 8 FEP Manual (BNA) 
405:7701, 7708 (2000).
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Reasonable Accommodation

    Section 501 requires federal employers to provide reasonable 
accommodation for qualified applicants and employees with disabilities, 
barring undue hardship. Reasonable accommodation is central to 
integrating individuals with disabilities into the workforce.\12\ The 
NPRM preamble addressed the ADA's treatment of the interactive process, 
reassignment, and undue hardship. The Commission reiterates that the 
ADA standards that apply in private sector employment apply to federal 
employment as well.\13\ The following discussion addresses some of the 
public comments regarding reasonable accommodation.
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    \12\ See New Freedom Initiative supra note 2.
    \13\ In US Airways, Inc. v. Barnett, No. 00-1250, 
slip op. at 9 (U.S. April 29, 2002), the Supreme Court adopted the 
position articulated in several lower court cases that in any 
reasonable accommodation case, a plaintiff/employee "need only 
show that an 'accommodation' seems reasonable on its 
face, i.e., ordinarily or in the run of cases," to defeat a 
defendant/employer's motion for summary judgment with respect to 
whether an accommodation is "reasonable." Once the 
plaintiff/employee has made this showing, the defendant/employer has 
the burden of demonstrating undue hardship on the facts of the 
particular case. The decision in Barnett involved a conflict between 
a seniority system and a reassignment as a reasonable accommodation.
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The Interactive Process

    The Commission agrees with the public comment that, under ADA 
standards, a request for reasonable accommodation and the informal 
interactive process are two distinct steps. First, the individual must 
request reasonable accommodation, in all but the most limited 
circumstances.\14\ Second, the employer engages in the interactive 
process if the disability or the type of accommodation needed are not 
obvious.\15\ Under ADA standards, employers must make a reasonable 
effort to identify an effective accommodation that does not pose an

[[Page 35734]]

undue hardship. See 29 CFR part 1630 app. 1630.9.
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    \14\ See "EEOC Enforcement Guidance on Reasonable 
Accommodation and Undue Hardship Under the Americans with 
Disabilities Act," at questions 1-4, 39, 8 FEP Manual 
(BNA) at 405:7601, 7604-07, 7628-29 (1999) [hereinafter 
"Reasonable Accommodation Guidance"]. The Reasonable 
Accommodation Guidance contains a detailed description of the 
reasonable accommodation interactive process.
    \15\ See Reasonable Accommodation Guidance, supra note 14 
at question 5, 8 FEP at 405:7606-07 (1999).
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Reassignment as a Reasonable Accommodation

Reassignment Is Separate From the Federal Merit Promotion System

    Several agencies expressed concern that section 501 reassignment 
actions could violate the federal merit promotion system. Under ADA 
standards, however, reassignment of a qualified individual with a 
disability is distinct from the competitive selection process. The ADA 
defines reassignment to be part of the duty of reasonable 
accommodation, which is a nondiscrimination obligation separate and 
apart from the competitive selection process.\16\ Indeed, the Office of 
Personnel Management (OPM) has characterized the reasonable 
accommodation of reassignment as "a non-competitive 
process." \17\
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    \16\ See 42 U.S.C. 12111(9)(B) (1994).
    \17\ See Employment Service, U.S. Office of Personnel 
Management, People with Disabilities in the Federal Government: An 
Employment Guide at 31 (1999).
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Probationary Employees and Reassignment

    Agencies also expressed concern that the ADA approach to 
reassignment permits reassignment of probationary employees, contrary 
to the categorical prohibition against such reassignment in the old 
regulation at 29 CFR 1614.203(g). The Commission considered these 
comments and again concludes that reassignment is available as a 
reasonable accommodation for probationary employees.
    Under the ADA, qualified individuals with disabilities are entitled 
to reasonable accommodation, barring undue hardship. Reassignment is a 
form of reasonable accommodation. An individual with a disability is 
qualified for reassignment if s/he has adequately performed the 
essential functions of the original position, with or without 
reasonable accommodation, before the need for reassignment arose.\18\ 
The longer the period of time in which a probationary employee has 
adequately performed the essential job functions, with or without 
reasonable accommodation, the more likely it is that reassignment is 
appropriate if s/he becomes unable to continue performing the essential 
functions of the position due to a disability. If, however, the 
probationary employee has never adequately performed the essential 
functions, with or without reasonable accommodation, then s/he is not 
entitled to reassignment because s/he was never "qualified" 
for the original position.\19\
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    \18\ See Reasonable Accommodation Guidance, supra note 14 
at question 25, 8 FEP at 405:7622-23 (1999).
    \19\ See id.
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When a Position Becomes "Vacant" for Purposes of 
Reassignment

    Two federal agencies responded to the Commission's request for 
comment on when a position becomes vacant in the federal government. 
One agency commented that a position must not only be funded and 
unencumbered but must also be one that the agency intends to fill 
rather than eliminate for budgetary or mission reasons. The other 
agency commented that positions subject to hiring or other employment 
freezes are not presently funded and so cannot be considered vacant 
positions even though they may be authorized and not filled. It further 
contended that if an employee leaves a position, the employer must 
continue to have the opportunity to decide whether to fund the 
position, abolish it, or modify it in accordance with changed work or 
business requirements. Both agencies contended that a position cannot 
be considered vacant if it has been unconditionally offered to another 
individual. Finally, one of the agencies argued that a position cannot 
be considered vacant if another employee has a vested priority to it by 
seniority or some other superior right based on the employer's non-
discriminatory policies.
    The Commission agrees that an agency must have an opportunity to 
decide whether to abolish, modify, or simply continue funding a 
position after an employee departs. The Commission also agrees that the 
duty to provide reassignment does not include reassignment to a 
position for which there has already been an offer to another 
individual.\20\ Finally, a position is not vacant if it is subject to a 
hiring freeze. Any decision not to continue a position, whether for 
funding or mission reasons, must not be discriminatorily based.
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    \20\ Under the ADA, a job offer is real if the employer 
has evaluated all relevant non-medical information which it 
reasonably could have obtained and analyzed prior to giving the 
offer. See Guidance on Preemployment Inquiries, supra note 9, at 
18-19, 8 FEP 405:7200 (1995).
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Undue Hardship and the Extent of Duty To Search for a Vacancy

    Several agencies commented on an employer's duty to search for 
vacancies throughout its organization and on issues involving 
reassignments denied on the basis of undue hardship. These agencies 
expressed concern that an obligation to search for vacant positions 
beyond a commuting area and throughout an entire organization would 
result in administrative difficulty and expense. One commenter asserted 
that federal employers should not always be required to search for 
vacancies in different subagencies or components of the larger agency, 
because subagencies may be legally separate and may operate under 
separate appropriations, appointing authorities, and personnel offices. 
Another commenter urged the Commission to redefine the ADA "undue 
hardship" standard for the federal sector, so that reassignment 
decisions could be based on the budget of a particular facility. In the 
federal sector, the agency commented, a facility may have a limited 
budget with which to respond to growing public needs.
    Under the 1992 Amendments, the Commission is bound by ADA 
standards, including the undue hardship standard.\21\ The Commission 
concludes, however, that the ADA's "undue hardship" 
analysis takes into account the operational, financial, and legal 
relationships between components of large organizations, whether the 
organizations are private or federal.\22\ An employer seeking to 
demonstrate "undue hardship" under the ADA standard would 
have to demonstrate why, in light of the resources, operations, and 
constraints of its particular organization, a reasonable accommodation 
would result in significant difficulty or expense. If a federal 
employer seeks to demonstrate that a specific reasonable accommodation 
poses an undue hardship because it would compromise the agency's 
mission, the agency needs to factually assess the "impact of the 
accommodation" on operations.\23\
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    \21\ The Supreme Court, in US Airways, slip op. at 10, 
emphasized that the employer still retains the burden of showing 
undue hardship.
    \22\ See 42 U.S.C. 12111(10) (1994). See also 29 CFR 
1630.2(p) (2001).
    \23\ Id.
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    An advocacy group for individuals with disabilities objected that 
the proposed rule appeared to limit reassignment to situations in which 
there was no other effective accommodation, or in which all other 
accommodations would impose an undue hardship. The Commission has 
consistently interpreted the ADA to mean that reassignment is only 
required in these circumstances.\24\ Reassignment may be an option in 
other circumstances if the employer and the employee agree to it.\25\ 
To avoid any ambiguity

[[Page 35735]]

concerning when reassignment is appropriate, we eliminated paragraph 
(b)(2) which defined the employer's duty to provide reasonable 
accommodation and reassignment. The remaining cross-reference to the 
ADA standards in paragraph (b) provides the appropriate standard.
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    \24\ See Reasonable Accommodation Guidance, supra note 14, 
at p. 39, 8 FEP at 405:7622 (1999).
    \25\ Id.
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Conflict With Collective Bargaining Agreement

    Some federal unions and employers questioned whether reassignment 
should be required as a reasonable accommodation when it would create a 
conflict with another employee's seniority rights under a collective 
bargaining agreement (CBA). These commenters cited developing ADA case 
law on this issue and urged the view that CBA seniority rights should 
prevail. Following the submission of these public comments to the 
Commission, the U.S. Supreme Court decided US Airways, Inc. v. Barnett, 
No. 00-1250, (U.S. April 29, 2002). In Barnett, the Court 
considered whether the ADA requires an employer to reassign an 
individual with a disability as a reasonable accommodation when another 
employee is entitled to hold the position under an established 
seniority system.
    The Court held that a conflict between a seniority system and a 
proposed accommodation should be analyzed to determine whether the 
requested accommodation is reasonable. The Court ruled that 
"ordinarily" a proposed accommodation will not be 
reasonable if it conflicts with a seniority system. Barnett, slip op. 
at 14. However, the Court also stated that, even if an employer shows 
that the proposed accommodation will violate a seniority system, a 
plaintiff/employee may nevertheless show that "special 
circumstances" warrant a finding that the accommodation is 
"reasonable" on the facts of the particular case. The 
plaintiff/employee has the burden of proof to show that such 
"special circumstances" exist. The Court remanded Barnett 
for consideration under this standard.
    In Barnett, a seniority system was linked to longstanding employer 
practice but was not part of a negotiated CBA. In its analysis, the 
Court relied primarily on Rehabilitation Act and ADA case law involving 
collectively bargained seniority systems to conclude that 
accommodations conflicting with seniority systems are unreasonable 
absent special circumstances. The Court's language broadly and 
consistently referred to "seniority systems." Accordingly, 
the Commission construes Barnett as applying to CBA seniority 
provisions as well as to seniority systems based on employer practices.

Effective Date of the Final Rule

    This regulation will be effective 30 days after publication of the 
final rule in the Federal Register, and will apply to conduct occurring 
on or after that date.

Additional Amendment

    The Commission did not receive public comment on its proposal to 
delete the provision in  1614.102(a)(9) which refers to 
reassignment pursuant to  1614.203(g). That paragraph is 
now deleted.

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.

    For the Commission.
Cari M. Dominguez,
Chair.

    For the reasons set forth in the preamble, Chapter XIV of Title 29 
of the Code of Federal Regulations is amended 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.


 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:


 1614.203  Rehabilitation Act.

    (a) Model employer. The Federal Government shall be a model 
employer of individuals with disabilities. Agencies shall give full 
consideration to the hiring, placement, and advancement of qualified 
individuals with disabilities.
    (b) ADA standards. The standards used to determine whether section 
501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has 
been violated in a complaint alleging nonaffirmative action employment 
discrimination under this part shall be the standards applied under 
Titles I and V (sections 501 through 504 and 510) of the Americans with 
Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201), 
as such sections relate to employment. These standards are set forth in 
the Commission's ADA regulations at 29 CFR part 1630.

[FR Doc. 02-12543 Filed 5-20-02; 8:45 am]
BILLING CODE 6570-01-P