[Federal Register Volume 67, Number 155 (Monday, August 12, 2002)]
[Proposed Rules]
[Pages 52431-52433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20126]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1626

RIN 3046-AA54


Procedures--Age Discrimination in Employment Act

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission proposes to amend its regulations on the 
processing of age discrimination charges to provide that it will issue 
a notice, when it has dismissed or otherwise terminated the processing 
of an age discrimination charge, that the right to file a lawsuit on 
the charge under the ADEA will expire in 90 days. These amendments also 
delete references to the previously applicable two-or three-year 
limitations period for filing a civil action. Finally, EEOC is deleting 
its list of ADEA referral states because the list is obsolete and 
unnecessary. These changes will conform the Commission's regulations to 
the procedures adopted by the Commission to implement section 115 of 
the Civil Rights Act of 1991.

DATES: Comments must be received by October 11, 2002.

ADDRESSES: Written comments should be submitted to Frances M. Hart, 
Executive Officer, Executive Secretariat, Equal Employment Opportunity 
Commission, 1801 L Street, NW., Washington, DC 20507. As a convenience 
to commenters, the Executive Secretariat will accept comments of six 
pages or less transmitted by facsimile (``FAX'') machine. The telephone 
number of the FAX receiver is (202) 663-4114. This is not a toll free 
number. The six-page limitation is necessary to assure access to the 
equipment. Receipt of FAX transmissions will not be acknowledged 
although a sender may request confirmation by calling the Executive 
Secretariat at (202) 663-4078 (voice) or (202) 663-4077 (TTY). These 
are not toll free numbers. Copies of comments submitted by the public 
will be available for review at the Commission's library, Room 6502, 
1801 L Street NW., Washington, DC, between the hours of 9:30 a.m. and 5 
p.m.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel at (202) 663-4669 (voice) or (202) 663-7026 (TTY). This 
proposed rule is also available in the following formats: large print, 
braille, audiotape and electronic file on computer disk. Requests for 
this proposed rule in an alternative format should be made to EEOC's 
Publication Center at 1-800-669-3362.

SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking contains 
EEOC's proposed revisions to part 1626 of its regulations. These 
changes are proposed in order to conform the Commission's regulations 
to the procedures it adopted for the processing of charges under the 
Age Discrimination in Employment Act (ADEA) following passage of 
section 115 of the Civil Rights Act of 1991. Section 7(e) of the ADEA 
no longer incorporates the two- or three-year statute of limitations on 
civil actions in section 6 of the Portal to Portal Act nor does it 
incorporate the exemption to the Portal to Portal Act's limitations 
period during EEOC's conciliation efforts. Instead, upon dismissal or 
termination of proceedings, the Commission must notify the aggrieved 
person that his or her right to file a civil action under the ADEA will 
expire 90 days after receipt of the notice. This notice is denominated 
a ``Notice of Dismissal or Termination.'' The Commission is also taking 
this opportunity to delete an obsolete and unnecessary list of State 
Fair Employment Practices Agencies to which EEOC will send copies of 
ADEA charges.
    The current Sec. 1626.7(a) provides that charges will not be 
rejected as untimely provided that they are not barred by the statute 
of limitations contained in section 6 of the Portal to Portal Act. This 
provision recognized the Commission's authority to file suit within the 
Portal to Portal Act's limitation period even if the charging party did 
not have a private right of action because the charge was filed more 
than 180 days (or 300 days in a referral jurisdictions) after the 
discriminatory event took place. Following passage of the Civil Rights 
Act of 1991, the statute of limitations contained in the Portal to 
Portal Act is no longer applicable to ADEA lawsuits filed by either the 
charging party or the Commission. We therefore propose to delete the 
current Sec. 1626.7(a). The Commission will dismiss ADEA charges filed 
more than 180 days (or 300 days in a referral jurisdiction) after the 
discriminatory act, absent waiver, estoppel or equitable tolling.
    The current Sec. 1626.9(b) and (c) contain a list of states to 
which the Commission refers charges under section 14(b) of the ADEA. 
These lists were created when there were relatively few such agencies. 
Since almost all states now have laws prohibiting age discrimination, 
the lists are being deleted as obsolete and unnecessary. The regulation 
continues to provide that the Commission will refer age charges to 
appropriate state agencies.
    Section 7(d) of the ADEA requires that, upon receipt of a charge, 
the Commission shall promptly attempt to eliminate any alleged unlawful 
practice by informal methods of conciliation, conference and 
persuasion. Under current Sec. 1626.12, EEOC issues a notice if this 
attempt at conciliation fails. To eliminate any possible confusion 
between this failure of conciliation notice and the new Notice of 
Dismissal or Termination (NDT), we propose to add a sentence to Sec. 
1626.12 stating that notice under this section is not a Notice of 
Dismissal or Termination under Sec. 1626.20.
    The second sentence and last two sentences of the current Sec. 
1626.15(b) concern the tolling of the ADEA's statute of limitations 
during EEOC

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conciliation. Because this tolling provision no longer applies, we 
propose to delete these sentences. An editorial change is proposed to 
the third sentence, eliminating a reference to the current second 
sentence that we are proposing to delete.
    The Commission is also proposing to add three new sections. 
Proposed Sec. 1626.17 is modeled on 29 CFR 1601.28 and provides for 
issuance of a Notice of Dismissal or Termination to an aggrieved person 
when EEOC dismisses or otherwise terminates its processing of an ADEA 
charge. Notification will be made by issuing a Notice of Dismissal or 
Termination to each aggrieved person. In the case of a charge 
concerning more than one aggrieved person, Notices of Dismissal or 
Termination will only be issued when the charge is dismissed or EEOC's 
proceedings are terminated as to all aggrieved persons.
    Proposed Sec. 1626.18 concerns the institution of private civil 
actions. Paragraph (a) states that a civil action may be filed by an 
aggrieved person in either federal or state court under section 7 of 
the ADEA. Paragraph (b) makes clear that an aggrieved person need not 
wait for a Notice of Dismissal or Termination to be issued in order to 
file a civil action, but can file suit on a pending charge any time 
after 60 days have elapsed from the filing of the charge. Paragraph (c) 
provides that the right to file a private suit under the ADEA expires 
90 days after receipt of a Notice of Dismissal or Termination. 
Paragraph (d) provides that when the Commission becomes aware that an 
aggrieved person has filed a private lawsuit under the ADEA against the 
respondent named in the charge, the Commission may terminate further 
processing of the charge or the portion of the charge affecting that 
person unless it is determined that further proceedings will effectuate 
the purposes of the ADEA.
    Proposed Sec. 1626.19 clarifies that, unlike Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. 2000e, and Title I of the Americans 
with Disabilities Act, 42 U.S.C. 12101 et seq., the ADEA does not 
require the filing of a charge before the Commission has authority to 
investigate and litigate a possible violation of the ADEA. In addition, 
the termination of proceedings on an age discrimination charge and the 
issuance of a Notice of Dismissal or Termination does not prevent the 
Commission from investigating or litigating a matter that may have been 
the subject of or related to a charge on which a Notice of Dismissal or 
Termination was issued.

Regulatory Procedures

Executive Order 12866

    Pursuant to Executive Order 12866, EEOC has coordinated this 
proposed 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 proposal contains no new 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

    The Commission certifies under 5 U.S.C. 605(b) that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities, because it implements a statutory change in 
the time limits for filing suit. For this reason, a regulatory 
flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

List of Subjects in 29 CFR Part 1626

    Administrative practice and procedure, aged, equal employment 
opportunity.

    For the Commission,
Cari M. Dominguez,
Chair.

    For the reasons set forth in the preamble, EEOC proposes to amend 
29 CFR part 1626 as follows:

PART 1626--PROCEDURES--AGE DISCRIMINATION IN EMPLOYMENT ACT

    1. The authority citation for Part 1626 continues to read as 
follows:

    Authority: Sec. 9, 81 Stat. 605, 29 U.S.C. 628; sec. 2, Reorg. 
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.


Sec. 1626.7  [Amended]

    2. Section 1626.7 is amended by removing paragraph (a) and 
redesignating paragraphs (b) and (c) as paragraphs (a) and (b).


Sec. 1626.9  [Amended]

    3. Section 1626.9 is amended by removing the paragraph designation 
(a) and by removing paragraphs (b) and (c).
    4. Section 1626.12 is amended by adding a sentence at the end of 
the section to read as follows:


Sec. 1626.12  Conciliation efforts pursuant to section 7(d) of the 
Act.

    * * * Notification under this section is not a Notice of Dismissal 
or Termination under Sec. 1626.17.


Sec. 1626.15  [Amended]

    5. Paragraph (b) of Sec. 1626.15 is amended by:
    a. removing the second sentence;
    b. removing the words ``Such notice will'' and adding in their 
place, the words ``Notice of commencement of conciliation will''; and
    c. removing the last two sentences.


Secs. 1626.17, 1626.18, 1626.19  [Redesignated as Secs.
1626.20, 1626.21, 1626.22]

    6. Sections 1626.17, 1626.18 and 1626.19 are redesignated as 
Secs. 1626.20, 1626.21 and 1626.22.
    7. A new Sec. 1626.17 is added to read as follows:


Sec. 1626.17  Notice of Dismissal or Termination.

    (a) Issuance of Notice of Dismissal or Termination. (1) Where a 
charge filed with the Commission under the ADEA is dismissed or the 
Commission's proceedings are otherwise terminated, the Commission will 
issue a Notice of Dismissal or Termination on the charge as described 
in paragraph (c) of this section to the person(s) claiming to be 
aggrieved. In the case of a charge concerning more than one aggrieved 
person, the Commission will only issue a Notice of Dismissal or 
Termination when the charge is dismissed or proceedings are otherwise 
terminated as to all aggrieved persons.
    (2) Where the charge has been filed under the ADEA and Title VII or 
the Americans with Disabilities Act (ADA), the Commission will issue a 
Notice of Dismissal or Termination under the ADEA at the same time it 
issues the Notice of Right to Sue under Title VII or the ADA.
    (3) The issuance of a Notice of Dismissal or Termination does not

[[Page 52433]]

preclude the Commission from offering such assistance to a person 
receiving the notice as the Commission deems necessary or appropriate. 
The issuance does not preclude or interfere with the Commission's 
continuing right to investigate and litigate the same matter or any 
ADEA matter under its enforcement authority.
    (b) Delegation of authority to issue Notices of Dismissal or 
Termination. The Commission hereby delegates authority to issue Notices 
of Dismissal or Termination, in accordance with this section, to: 
District Directors; Area Directors; Local Directors; the Director of 
the Office of Field Programs; the Associate General Counsel for 
Systemic Investigations and Review Programs; the Director of Field 
Management Programs, Office of Field Programs; or their designees.
    (c) Contents of the Notice of Dismissal or Termination. The Notice 
of Dismissal or Termination shall include:
    (1) A copy of the charge;
    (2) Notification that the proceedings of the Commission have been 
dismissed or otherwise terminated; and
    (3) Notification that the aggrieved person's right to file a civil 
action against the respondent on the subject charge under the ADEA will 
expire 90 days after receipt of such notice.
    8. A new Sec. 1626.18 is added to read as follows:


Sec. 1626.18  Filing of private lawsuit.

    (a) An aggrieved person may file a civil action against the 
respondent named in the charge in either federal or state court under 
section 7 of the ADEA.
    (b) An aggrieved person whose claims are the subject of a timely 
pending charge may file a civil action at any time after 60 days have 
elapsed from the filing of the charge with the Commission without 
waiting for a Notice of Dismissal or Termination to be issued.
    (c) The right of an aggrieved person to file suit expires 90 days 
after receipt of the Notice of Dismissal or Termination.
    (d) If the Commission becomes aware that the aggrieved person whose 
claim is the subject of a pending ADEA charge has filed an ADEA lawsuit 
against the respondent named in the charge, it may terminate further 
processing of the charge or portion of the charge affecting that person 
unless the District Director; Area Director; Local Director; Director 
of the Office of Field Programs; the Associate General Counsel for 
Systemic Investigation and Review Programs; the Director of Field 
Management Programs; or their designees determine at that time or at a 
later time that it would effectuate the purpose of the ADEA to further 
process the charge.
    9. A new Sec. 1626.19 is added to read as follows:


Sec. 1626.19  Filing of Commission lawsuit.

    The right of the Commission to file a civil action under the ADEA 
is not dependent on the filing of a charge and is not affected by the 
issuance of a Notice of Dismissal or Termination to any aggrieved 
person.

[FR Doc. 02-20126 Filed 8-9-02; 8:45 am]
BILLING CODE 6570-01-P