[Federal Register Volume 68, Number 72 (Tuesday, April 15, 2003)]
[Rules and Regulations]
[Pages 18083-18103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9111]



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 Rules and Regulations
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  Federal Register / Vol. 68, No. 72 / Tuesday, April 15, 2003 / Rules 
and Regulations  

[[Page 18083]]



FEDERAL RESERVE SYSTEM

12 CFR Part 268

[Docket No. R-1096]


Rules Regarding Equal Opportunity

AGENCY: Board of Governors of the Federal Reserve System.

ACTION: Final rule.

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SUMMARY: The Board of Governors of the Federal Reserve System (the 
Board) has adopted a final rule that amends its ``Rules Regarding Equal 
Opportunity,'' which establishes programs and procedures to promote 
equal opportunity for Board employees. This rule was published on 
January 25, 2001, in the Federal Register as an immediately effective 
interim rule with opportunity for public comment. The Board received 
one public comment on this rule. The Board is now adopting the interim 
rule as a final rule with substantive changes to sections in the rule 
that address the Rehabilitation Act. These substantive changes are 
being made because after the Board adopted its interim rule, the Equal 
Employment Opportunity Commission (Commission), after public comment, 
adopted changes to the provisions in its parallel regulation entitled 
``Federal Sector Equal Employment Opportunity,'' 29 CFR part 1614, that 
address the Rehabilitation Act. The substantive changes to the Board's 
final rule, which incorporates changes to the Commission's regulation 
on the Rehabilitation Act, also respond to the comment that the Board 
received on its rule.

DATES: This final rule is effective immediately and applies to all 
Board equal employment opportunity (EEO) complaints pending at any 
stage of the administrative process as of April 15, 2003.

FOR FURTHER INFORMATION CONTACT: Stephen L. Siciliano, Assistant 
General Counsel (202-452-3920), or Alicia S. Foster, Counsel (202-452-
5289), Legal Division, Board of Governors of the Federal Reserve 
System, 20th Street and Constitution Avenue NW., Washington, DC 20551. 
For users of Telecommunications Device for the Deaf (``TDD'') only, 
contact 202/263-4869.

SUPPLEMENTARY INFORMATION: On January 2, 2001, the Board approved the 
revision of the Board's ``Rules Regarding Equal Opportunity'' as an 
immediately effective interim rule with opportunity for comment. The 
rule was published in the Federal Register on January 25, 2001 (66 FR 
7703). The interim rule revised the Board's existing regulation 
entitled ``Rules on Equal Opportunity,'' 12 CFR part 268, to 
incorporate the November 1999 changes made by the Equal Employment 
Opportunity Commission (Commission) to its parallel regulation entitled 
``Federal Sector Equal Employment Opportunity,'' 29 CFR part 1614, 
governing equal employment opportunity in the federal government 
generally. As explained in the preamble to the interim rule, this 
amendment is consistent with the Board's past practice as the Board's 
rule is modeled after and, in most respects, is identical to the 
Commission's regulation. The interim rule also made additional changes 
to the Board's regulation to bring it into closer conformance with the 
Commission's regulation. In a few instances, the interim rule continued 
distinctions between the Board's rule and the Commission's rule that 
reflect the Board's statutorily mandated independence.
    One comment was received. The commentator, the Commission, 
suggested that rather than adopt a separate regulation governing the 
processing of complaints of discrimination, the Board should adopt the 
Commission's Government-wide complaint processing procedures. As the 
Board has pointed out in prior amendments to part 268, however, the 
Board believes that based on the specific provisions of the Federal 
Reserve Act and established precedent, the adoption of part 268 is 
necessary to authorize and ensure the Board's compliance with important 
national laws and policies prohibiting discrimination in employment on 
the basis of race, color, religion, sex, national origin, age, 
disability, or retaliation.
    The Commission also questioned five provisions in the Board's rule 
that differ from the corresponding provisions in the Commission's rule 
on employee EEO complaints. Three of the provisions retain authority 
for the Board as to a decision issued by the Commission on employee 
complaints of discrimination. The Commission expressed concerns that it 
is not clear how these provisions relate to the Commission's rule or to 
the sections in the interim rule that set forth the time periods for a 
complainant to file a civil action. The other two provisions regard the 
overall relationship between the Commission and the Board and address 
how the Board will provide EEO program information to the Commission. 
Except as discussed below, the Board adopts the interim rule as a final 
rule.
    As an initial matter, it should be noted that all of the provisions 
that the Commission points to as differing from its regulation are 
updated provisions rather than new provisions. Similar provisions were 
contained in the Board's rule on equal opportunity prior to the 
adoption of the interim rule on January 25, 2001. While the Board 
recognizes that the provisions in question retain authority that is not 
found in the Commission's regulation, the Board believes the retention 
of authority is necessary to comply with its statutorily mandated 
independence while also complying with the laws prohibiting 
discrimination in employment. The provisions at issue are based on the 
Board's traditional view of its authority under the Federal Reserve 
Act, which provides that the ``employment, compensation, leave, and 
expenses'' of Board employees is governed solely by that Act. Section 
10(4).\1\ The provisions address areas that the Board believes affect 
its independence and thus the distinctions are appropriate. As 
explained in the preamble to the interim rule, however, the Board has 
minimized, to the greatest extent possible, distinctions between its 
rule and the Commission's rule. Accordingly, with the few exceptions 
noted by the Commission, the Board's interim rule closely conforms to 
the Commission's rule. The Board will continue to work with the 
Commission

[[Page 18084]]

to ensure that the Board's rule is effectively implemented consistent 
with the laws and policies enforced by the Commission. Accordingly, the 
Board believes that no changes to these provisions in the interim rule 
are appropriate.
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    \1\ 12 U.S.C. 244.
---------------------------------------------------------------------------

    The Commission also commented on a provision in the Board's interim 
regulation implementing the Rehabilitation Act (29 U.S.C. 791), which 
prohibits discrimination against individuals with disabilities by the 
federal government. The particular provision at issue addresses 
alcoholism, 12 CFR 268.203(h)(3). The Commission questioned whether 
section 268.203(h)(3) was consistent with current law. Before the Board 
could address the Commission's concerns, however, the Commission 
adopted changes to the parallel provision in the Commission's rule. On 
May 21, 2002, the Commission published a final rule revising the 
sections in its rule regarding the Rehabilitation Act. (67 FR 35732). 
The Commission's rule provides that the federal government shall be a 
model employer of individuals with disabilities. The rule also provides 
that in determining whether the Rehabilitation Act, as amended, has 
been violated in a complaint alleging nonaffirmative action employment 
discrimination, the standards under Titles I and V of the Americans 
with Disabilities Act of 1990, insofar as they cover employment in the 
private sector, shall be applied. The rules also provide that these 
standards are set forth in the Commission's ADA regulation at 29 CFR 
part 1630. The Board has determined that it would be appropriate to 
revise its Rehabilitation Act rules consistent with the Commission's 
May 21, 2002, final rule. By making these changes, the Board is 
addressing the Commission's concern with the provision on alcoholism in 
the interim rule as that provision will be deleted.
    In order to incorporate the Commission's May 21, 2002, final rule, 
section 268.102, paragraph (9) of the interim rule, which relates to 
the obligations of the Board's EEO program with respect to employees 
with physical or mental limitations, has also been deleted in the final 
rule. This provision corresponds to a provision in the Commission's 
prior regulation, which the Commission deleted.\2\ In addition, the 
present language in section 268.203 has been replaced with the 
corresponding language from the Commission's final rule, which provides 
that the government shall be a model employer of individuals with 
disabilities and applies the ADA standards (Title I and V) to determine 
whether a violation of section 501 of the Rehabilitation Act has 
occurred. The Board's final rule also incorporates the reference to the 
Commission's ADA regulation. Thus, as these changes to the Board's 
rules are made in response to the comment received on the interim rule 
and are consistent with those made by the Commission in its May 21, 
2002, final rule, additional comment would not serve the public 
interest as the Commission's rule was adopted only after public 
comment. As described above, the changes to the Rehabilitation Act 
provisions in the Board's corresponding rule incorporate existing 
Commission procedures which were adopted after public notice and 
comment. Further, as the Commission's changes to the Rehabilitation Act 
provisions are effective as of June 20, 2002, to ensure that EEO 
complaints by Board employees are handled consistently with the 
procedures of the Commission, it is important that the Board adopt 
corresponding changes without additional delay.
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    \2\ The Board's final rule, similar to the Commission's changes 
to its regulation, renumbers the remaining paragraphs. Further, the 
citation to section 268.203(a)(6) in section 268.702(e)(3) of 
Subpart H, which prohibits discrimination in Board programs and 
activities on the basis of disability and which is a matter not 
administered by the Commission, has been changed to section 268.203 
as the prior citation is no longer valid.
---------------------------------------------------------------------------

    Finally, the Commission suggested that the Board apply the interim 
rule retroactively to cover employee complaints of discrimination 
pending on November 9, 1999, the effective date of the Commission's 
revised rule, which prompted the Board's revision of its corresponding 
rule. The Board does not believe that any further action in this regard 
is necessary, however, because the interim rule was effective 
immediately upon publication of the interim rule and applied to all 
pending cases as of January 25, 2001. Thus, to the extent an EEO 
complaint was in the administrative process on that date, it was 
processed under procedures similar to those adopted by the Commission. 
It appears that, for the most part, the administrative processing at 
the Board of complaints pending as of January 2001 has been completed, 
so that retroactive application at this time would have little effect.
    Accordingly, with the exception of the substantive changes 
discussed above, the Board is now adopting the interim rule on equal 
employment opportunity as a final rule. No other substantive changes 
have been made to the interim rule. The final rule makes editorial 
changes to certain other parts of the Board's interim regulation, 
namely, the provision on employment of noncitizens and the subpart 
prohibiting discrimination in Board programs and activities on the 
basis of disability, which are not administered by the Commission.
    Pursuant to the Administrative Procedures Act (APA), 5 U.S.C. 
553(d)(3), the Board has determined that it is unnecessary and would be 
impracticable to defer the effective date of this final rule for 30 
days. The final rule, like the interim rule, which was effective 
immediately on publication, in substance is applying the Commission's 
existing regulation, which was revised twice and in both instances 
adopted only after notice and public comment. Thus, the Board's rule 
will not cause unfair prejudice as the standards that are being applied 
in the final rule in virtually all respects are not new and are already 
in effect under the interim rule. The one major substantive change to 
the interim rule by the final rule conforms the Rehabilitation Act 
provisions covering Board employee to those governing Federal employers 
generally.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3506; 5 CFR 1320 Appendix A.1), the Board reviewed the proposed rule 
under the authority delegated to the Board by the Office of Management 
and Budget. No collections of information pursuant to the Paperwork 
Reduction Act are contained in the final rule.

Regulatory Flexibility Act Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub. 
L. 96-354, 5 U.S.C. 601, et seq.), the Board certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities. This rule governs the Board's dealings with its 
employees, applicants for employment, and others affected in a like 
manner.

Plain Language

    Section 722 of the Gramm-Leach-Bliley Act requires each federal 
banking agency to use plain language in all proposed and final rules 
published after January 1, 2000. Because the Board has determined that 
this final rule, similar to the interim rule, should conform to the 
greatest possible with the parallel regulation of the Equal Employment 
Opportunity Commission, the Board's ability to specifically address the 
plain language requirement was limited.

[[Page 18085]]

List of Subjects in 12 CFR part 268

    Administrative practice and procedure, Aged, Civil rights, Equal 
employment opportunity, Federal buildings and facilities, Federal 
Reserve System, Government employees, Individuals with disabilities, 
Religious discrimination, Sex discrimination, Wages.


0
For the reasons set out in the preamble, the Board revises 12 CFR part 
268 to read:

PART 268--RULES REGARDING EQUAL OPPORTUNITY

Subpart A--General Provisions and Administration
Sec.
268.1 Authority, purpose and scope.
268.2 Definitions.
Subpart B--Board Program To Promote Equal Opportunity
268.101 General policy for equal opportunity.
268.102 Board program for equal employment opportunity.
268.103 Complaints of discrimination covered by this part.
268.104 Pre-complaint processing.
268.105 Individual complaints.
268.106 Dismissals of complaints.
268.107 Investigation of complaints.
268.108 Hearings.
268.109 Final action by the Board.
Subpart C--Provisions Applicable to Particular Complaints
268.201 Age Discrimination in Employment Act.
268.202 Equal Pay Act.
268.203 Rehabilitation Act.
268.204 Class complaints.
268.205 Employment of noncitizens.
Subpart D--Related Processes
268.301 Negotiated grievance procedure.
268.302 Mixed case complaints.
Subpart E--Appeals to the Equal Employment Opportunity Commission
268.401 Appeals to the Equal Employment Opportunity Commission.
268.402 Time for appeals to the Equal Employment Opportunity 
Commission.
268.403 How to appeal.
268.404 Appellate Procedure.
268.405 Decisions on appeals.
268.406 Civil action: Title VII, Age Discrimination in Employment 
Act and Rehabilitation Act.
268.407 Civil action: Equal Pay Act.
268.408 Effect of filing a civil action.
Subpart F--Remedies and Enforcement
268.501 Remedies and relief.
268.502 Compliance with final Commission decisions.
268.503 Enforcement of final EEOC decisions.
268.504 Compliance with settlement agreements and final actions.
268.505 Interim relief.
Subpart G--Matters of General Applicability
268.601 EEO group statistics.
268.602 Reports to the Commission.
268.603 Voluntary settlement attempts.
268.604 Filing and computation of time.
268.605 Representation and official time.
268.606 Joint processing and consolidation of complaints.
268.607 Delegation of Authority.
Subpart H--Prohibition Against Discrimination in Board Programs and 
Activities Because of a Physical or Mental Disability
268.701 Purpose and application.
268.702 Definitions
268.703 Notice.
268.704 General prohibition against discrimination.
268.705 Employment.
268.706 Program accessibility: Discrimination prohibited.
268.707 Program accessibility: Existing facilities.
268.708 Program accessibility: New construction and alterations.
268.709 Communications.
268.710 Compliance procedures.

    Authority: 12 U.S.C. 244 and 248(i), (k) and (1).

Subpart A--General Provisions and Administration


Sec.  268.1  Authority, purpose and scope.

    (a) Authority. The regulations in this part (12 CFR part 268) are 
issued by the Board of Governors of the Federal Reserve System (Board) 
under the authority of sections 10(4) and 11(i), (k), and (l) of the 
Federal Reserve Act (partially codified in 12 U.S.C. 244 and 248(i), 
(k) and (1)).
    (b) Purpose and scope. This part sets forth the Board's policy, 
program and procedures for providing equal opportunity to Board 
employees and applicants for employment without regard to race, color, 
religion, sex, national origin, age, or physical or mental disability. 
It also sets forth the Board's policy, program and procedures for 
prohibiting discrimination on the basis of physical or mental 
disability in programs and activities conducted by the Board. It also 
specifies the circumstances under which the Board will hire or decline 
to hire persons who are not citizens of the United States, consistent 
with the Board's operational needs and applicable law.


Sec.  268.2  Definitions.

    The definitions contained in this section shall have the following 
meanings throughout this part unless otherwise stated.
    (a) Commission or EEOC means the Equal Employment Opportunity 
Commission.
    (b) Title VII means Title VII of the Civil Rights Act (42 U.S.C. 
2000e et seq.).

Subpart B--Board Program To Promote Equal Opportunity


Sec.  268.101  General policy for equal opportunity.

    (a) It is the policy of the Board to provide equal opportunity in 
employment for all persons, to prohibit discrimination in employment 
because of race, color, religion, sex, national origin, age or 
disability, and to promote the full realization of equal opportunity in 
employment through a continuing affirmative program.
    (b) No person shall be subject to retaliation for opposing any 
practice made unlawful by Title VII of the Civil Rights Act (title VII) 
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act 
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)), 
or the Rehabilitation Act (29 U.S.C. 791 et seq.) or for participating 
in any stage of administrative or judicial proceedings under those 
statutes.


Sec.  268.102  Board program for equal employment opportunity.

    (a) The Board shall maintain a continuing affirmative program to 
promote equal opportunity and to identify and eliminate discriminatory 
practices and policies. In support of this program, the Board shall:
    (1) Provide sufficient resources to its equal opportunity program 
to ensure efficient and successful operation;
    (2) Provide for the prompt, fair and impartial processing of 
complaints in accordance with this part and the instructions contained 
in the Commission's Management Directives;
    (3) Conduct a continuing campaign to eradicate every form of 
prejudice or discrimination from the Board's personnel policies, 
practices and working conditions;
    (4) Communicate the Board's equal employment opportunity policy and 
program and its employment needs to all sources of job candidates 
without regard to race, color, religion, sex, national origin, age or 
disability, and solicit their recruitment assistance on a continuing 
basis;
    (5) Review, evaluate and control managerial and supervisory 
performance in such a manner as to insure a continuing affirmative 
application and vigorous enforcement of the policy of equal 
opportunity, and provide orientation, training and advice to managers 
and supervisors to assure their understanding and implementation of the 
equal

[[Page 18086]]

employment opportunity policy and program;
    (6) Take appropriate disciplinary action against employees who 
engage in discriminatory practices;
    (7) Make reasonable accommodation to the religious needs of 
employees and applicants for employment when those accommodations can 
be made without undue hardship on the business of the Board;
    (8) Make reasonable accommodation to the known physical or mental 
limitations of qualified applicants and employees with a disability 
unless the accommodation would impose an undue hardship on the 
operations of the Board's program;
    (9) Provide recognition to employees, supervisors, managers and 
units demonstrating superior accomplishment in equal employment 
opportunity;
    (10) Establish a system for periodically evaluating the 
effectiveness of the Board's overall equal employment opportunity 
effort;
    (11) Provide the maximum feasible opportunity to employees to 
enhance their skills through on-the-job training, work-study programs 
and other training measures so that they may perform at their highest 
potential and advance in accordance with their abilities;
    (12) Inform its employees and recognized labor organizations of the 
Board's affirmative equal opportunity policy and program and enlist 
their cooperation; and
    (13) Participate at the community level with other employers, with 
schools and universities and with other public and private groups in 
cooperative action to improve employment opportunities and community 
conditions that affect employability.
    (b) In order to implement its program, the Board shall:
    (1) Develop the plans, procedures and regulations necessary to 
carry out its program;
    (2) Establish or make available an alternative dispute resolution 
program. Such program must be available for both the precomplaint 
process and the formal complaint process.
    (3) Appraise its personnel operations at regular intervals to 
assure their conformity with the Board's program, this part 268 and the 
instructions contained in the Commission's management directives;
    (4) Designate a Director for Equal Employment Opportunity (EEO 
Programs Director), EEO Officer(s), and such Special Emphasis Program 
Managers/Coordinators (e.g., People with Disabilities Program, Federal 
Women's Program and Hispanic Employment Program), clerical and 
administrative support as may be necessary to carry out the functions 
described in this part in all organizational units of the Board and at 
all Board installations. The EEO Programs Director shall be under the 
immediate supervision of the Chairman.
    (5) Make written materials available to all employees and 
applicants informing them of the variety of equal employment 
opportunity programs and administrative and judicial remedial 
procedures available to them and prominently post such written 
materials in all personnel and EEO offices and throughout the 
workplace;
    (6) Ensure that full cooperation is provided by all Board employees 
to EEO Counselors and Board EEO personnel in the processing and 
resolution of pre-complaint matters and complaints within the Board and 
that full cooperation is provided to the Commission in the course of 
appeals, including, granting the Commission routine access to personnel 
records of the Board when required in connection with an investigation;
    (7) Publicize to all employees and post at all times the names, 
business telephone numbers and business addresses of the EEO Counselors 
(unless the counseling function is centralized, in which case only the 
telephone number and address need be publicized and posted), a notice 
of the time limits and necessity of contacting a Counselor before 
filing a complaint and the telephone numbers and addresses of the EEO 
Programs Director, EEO Officer(s) and the Special Emphasis Program 
Managers/Coordinators.
    (c) The EEO Programs Director shall be responsible for:
    (1) Advising the Board of Governors with respect to the preparation 
of national and regional equal employment opportunity plans, 
procedures, regulations, reports and other matters pertaining to the 
policy in Sec.  268.101 and the Board's program;
    (2) Evaluating from time to time the sufficiency of the total Board 
program for equal employment opportunity and reporting to the Board of 
Governors with recommendations as to any improvement or correction 
needed, including remedial or disciplinary action with respect to 
managerial, supervisory or other employees who have failed in their 
responsibilities;
    (3) When authorized by the Board of Governors, making changes in 
programs and procedures designed to eliminate discriminatory practices 
and to improve the Board's program for equal employment opportunity;
    (4) Providing for counseling of aggrieved individuals and for the 
receipt and processing of individual and class complaints of 
discrimination; and
    (5) Assuring that individual complaints are fairly and thoroughly 
investigated and that final action is taken in a timely manner in 
accordance with this part.
    (d) Directives, instructions, forms and other Commission materials 
referenced in this part may be obtained in accordance with the 
provisions of 29 CFR 1610.7.


Sec.  268.103  Complaints of discrimination covered by this part.

    (a) Individual and class complaints of employment discrimination 
and retaliation prohibited by title VII (discrimination on the basis of 
race, color, religion, sex and national origin), the ADEA 
(discrimination on the basis of age when the aggrieved person is at 
least 40 years of age), the Rehabilitation Act (discrimination on the 
basis of disability), or the Equal Pay Act (sex-based wage 
discrimination) shall be processed in accordance with this part. 
Complaints alleging retaliation prohibited by these statutes are 
considered to be complaints of discrimination for purposes of this 
part.
    (b) This part applies to all Board employees and applicants for 
employment at the Board, and to all employment policies or practices 
affecting Board employees or applicants for employment.
    (c) This part does not apply to Equal Pay Act complaints of 
employees whose services are performed within a foreign country or 
certain United States territories as provided in 29 U.S.C. 213(f).


Sec.  268.104  Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated 
against on the basis of race, color, religion, sex, national origin, 
age or disability must consult a Counselor prior to filing a complaint 
in order to try to informally resolve the matter.
    (1) An aggrieved person must initiate contact with a Counselor 
within 45 days of the date of the matter alleged to be discriminatory 
or, in the case of a personnel action, within 45 days of the effective 
date of the action.
    (2) The Board or the Commission shall extend the 45-day time limit 
in paragraph (a)(1) of this section when the individual shows that he 
or she was not notified of the time limits and was not otherwise aware 
of them, that he or she did not know and reasonably should not have 
known that the discriminatory matter or personnel action occurred, that 
despite due diligence he or she was prevented by circumstances beyond 
his

[[Page 18087]]

or her control from contacting the counselor within the time limits, or 
for other reasons considered sufficient by the Board or the Commission.
    (b)(1) At the initial counseling session, Counselors must advise 
individuals in writing of their rights and responsibilities, including 
the right to request a hearing or an immediate final decision after an 
investigation by the Board in accordance with Sec.  268.107(f), 
election rights pursuant to Sec.  268.302, the right to file a notice 
of intent to sue pursuant to Sec.  268.201(a) and a lawsuit under the 
ADEA instead of an administrative complaint of age discrimination under 
this part, the duty to mitigate damages, administrative and court time 
frames, and that only the claims raised in precomplaint counseling (or 
issues or claims like or related to issues or claims raised in pre-
complaint counseling) may be alleged in a subsequent complaint filed 
with the Board. Counselors must advise individuals of their duty to 
keep the Board and the Commission informed of their current address and 
to serve copies of appeal papers on the Board. The notice required by 
paragraphs (d) or (e) of this section shall include a notice of the 
right to file a class complaint. If the aggrieved person informs the 
Counselor that he or she wishes to file a class complaint, the 
Counselor shall explain the class complaint procedures and the 
responsibilities of a class agent.
    (2) Counselors shall advise aggrieved persons that, where the Board 
agrees to offer ADR in the particular case, they may choose between 
participation in the alternative dispute resolution program and the 
counseling activities provided for in paragraph (c) of this section.
    (c) Counselors shall conduct counseling activities in accordance 
with instructions contained in Commission Management Directives. When 
advised that a complaint has been filed by an aggrieved person, the 
Counselor shall submit a written report within 15 days to the EEO 
Programs Director and the aggrieved person concerning the issues 
discussed and actions taken during counseling.
    (d) Unless the aggrieved person agrees to a longer counseling 
period under paragraph (e) of this section, or the aggrieved person 
chooses an alternative dispute resolution procedure in accordance with 
paragraph (b)(2) of this section, the Counselor shall conduct the final 
interview with the aggrieved person within 30 days of the date the 
aggrieved person contacted the Board's EEO Programs Office to request 
counseling. If the matter has not been resolved, the aggrieved person 
shall be informed in writing by the Counselor, not later than the 
thirtieth day after contacting the Counselor, of the right to file a 
discrimination complaint with the Board. This notice shall inform the 
complainant of the right to file a discrimination complaint within 15 
days of receipt of the notice, of the appropriate official with whom to 
file a complaint and of the complainant's duty to assure that the EEO 
Programs Director is informed immediately if the complainant retains 
counsel or a representative.
    (e) Prior to the end of the 30-day period, the aggrieved person may 
agree in writing with the Board to postpone the final interview and 
extend the counseling period for an additional period of no more than 
60 days. If the matter has not been resolved before the conclusion of 
the agreed extension, the notice described in paragraph (d) of this 
section shall be issued.
    (f) Where the aggrieved person chooses to participate in an 
alternative dispute resolution procedure in accordance with paragraph 
(b)(2) of this section, the pre-complaint processing period shall be 90 
days. If the claim has not been resolved before the 90th day, the 
notice described in paragraph (d) of this section shall be issued.
    (g) The Counselor shall not attempt in any way to restrain the 
aggrieved person from filing a complaint. The Counselor shall not 
reveal the identity of an aggrieved person who consulted the Counselor, 
except when authorized to do so by the aggrieved person, or until the 
Board has received a discrimination complaint under this part from that 
person involving the same matter.


Sec.  268.105  Individual complaints.

    (a) A complaint must be filed with the agency that allegedly 
discriminated against the complainant.
    (b) A complaint must be filed within 15 days of receipt of the 
notice required by Sec.  268.104 (d), (e) or (f).
    (c) A complaint must contain a signed statement from the person 
claiming to be aggrieved or that person's attorney. This statement must 
be sufficiently precise to identify the aggrieved individual and the 
Board and to describe generally the action(s) or practice(s) that form 
the basis of the complaint. The complaint must also contain a telephone 
number and address where the complainant or the representative can be 
contacted.
    (d) A complainant may amend a complaint at any time prior to the 
conclusion of the investigation to include issues or claims like or 
related to those raised in the complaint. After requesting a hearing, a 
complainant may file a motion with the administrative judge to amend a 
complaint to include issues or claims like or related to those raised 
in the complaint.
    (e) The Board shall acknowledge receipt of a complaint or an 
amendment to a complaint in writing and inform the complainant of the 
date on which the complaint or amendment was filed. The Board shall 
advise the complainant in the acknowledgment of the EEOC office and its 
address where a request for a hearing shall be sent. Such 
acknowledgment shall also advise the complainant that:
    (1) The complainant has the right to appeal the final action on or 
dismissal of a complaint; and
    (2) The Board is required to conduct an impartial and appropriate 
investigation of the complaint within 180 days of the filing of the 
complaint unless the parties agree in writing to extend the time 
period. When a complaint has been amended, the Board shall complete its 
investigation within the earlier of 180 days after the last amendment 
to the complaint or 360 days after the filing of the original 
complaint, except that the complainant may request a hearing from an 
administrative judge on the consolidated complaints any time after 180 
days from the date of the first filed complaint.


Sec.  268.106  Dismissals of complaints.

    (a) Prior to a request for a hearing in a case, the Board shall 
dismiss an entire complaint:
    (1) That fails to state a claim under Sec.  268.103 or Sec.  
268.105(a), or states the same claim that is pending before or has been 
decided by the Board or the Commission;
    (2) That fails to comply with the applicable time limits contained 
in Sec. Sec.  268.104, 268.105 and 268.204(c), unless the Board extends 
the time limits in accordance with Sec.  268.604(c), or that raises a 
matter that has not been brought to the attention of a Counselor and is 
not like or related to a matter that has been brought to the attention 
of a Counselor;
    (3) That is the basis of a pending civil action in a United States 
District Court in which the complainant is a party provided that at 
least 180 days have passed since the filing of the administrative 
complaint, or that was the basis of a civil action decided by a United 
States District Court in which the complainant was a party;
    (4) Where a complainant has raised the matter in an appeal to the 
Merit Systems Protection Board and Sec.  268.302 indicates that the 
complainant has elected to pursue the non-EEO process;

[[Page 18088]]

    (5) That is moot or alleges that a proposal to take a personnel 
action, or other preliminary step to taking a personnel action, is 
discriminatory;
    (6) Where the complainant cannot be located, provided that 
reasonable efforts have been made to locate the complainant and the 
complainant has not responded within 15 days to a notice of proposed 
dismissal sent to his or her last known address;
    (7) Where the Board has provided the complainant with a written 
request to provide relevant information or otherwise proceed with the 
complaint, and the complainant has failed to respond to the request 
within 15 days of its receipt or the complainant's response does not 
address the Board's request, provided that the request included a 
notice of the proposed dismissal. Instead of dismissing for failure to 
cooperate, the complaint may be adjudicated if sufficient information 
for that purpose is available;
    (8) That alleges dissatisfaction with the processing of a 
previously filed complaint; or
    (9) Where the Board, strictly applying the criteria set forth in 
Commission decisions, finds that the complaint is part of a clear 
pattern of misuse of the EEO process for a purpose other than the 
prevention and elimination of employment discrimination. A clear 
pattern of misuse of the EEO process requires:
    (i) Evidence of multiple complaint filings; and
    (ii) Allegations that are similar or identical, lack specificity or 
involve matters previously resolved; or
    (iii) Evidence of circumventing other administrative processes, 
retaliating against the Board's in-house administrative processes or 
overburdening the EEO complaint system.
    (b) Where the Board believes that some but not all of the claims in 
a complaint should be dismissed for the reasons contained in paragraphs 
(a)(1) through (9) of this section, the Board shall notify the 
complainant in writing of its determination, the rationale for that 
determination and that those claims will not be investigated, and shall 
place a copy of the notice in the investigative file. A determination 
under this paragraph is reviewable by an administrative judge if a 
hearing is requested on the remainder of the complaint, but is not 
appealable until final action is taken on the remainder of the 
complaint.


Sec.  268.107  Investigation of complaints.

    (a) The investigation of complaints filed against the Board shall 
be conducted by the Board.
    (b) In accordance with instructions contained in Commission 
Management Directives, the Board shall develop an impartial and 
appropriate factual record upon which to make findings on the claims 
raised by the written complaint. An appropriate factual record is one 
that allows a reasonable fact finder to draw conclusions as to whether 
discrimination occurred. The Board may use an exchange of letters or 
memoranda, interrogatories, investigations, fact-finding conferences or 
any other fact-finding methods that efficiently and thoroughly address 
the matters at issue. The Board may incorporate alternative dispute 
resolution techniques into its investigative efforts in order to 
promote early resolution of complaints.
    (c) The procedures in paragraphs (c)(1) through (3) of this section 
apply to the investigation of complaints:
    (1) The complainant, the Board, and any employee of the Board shall 
produce such documentary and testimonial evidence as the investigator 
deems necessary.
    (2) Investigators are authorized to administer oaths. Statements of 
witnesses shall be made under oath or affirmation or, alternatively, by 
written statement under penalty of perjury.
    (3) When the complainant, or the Board or its employees fail 
without good cause shown to respond fully and in timely fashion to 
requests for documents, records, comparative data, statistics, 
affidavits or the attendance of witness(es), the investigator may note 
in the investigative record that the decisionmaker should, or the 
Commission on appeal may, in appropriate circumstances:
    (i) Draw an adverse inference that the requested information, or 
the testimony of the requested witness, would have reflected 
unfavorably on the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to 
produce the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as it deems appropriate.
    (d) Any investigation will be conducted by investigators with 
appropriate security clearances.
    (e)(1) The Board shall complete its investigation within 180 days 
of the date of filing of an individual complaint or within the time 
period contained in an order from the Office of Federal Operations on 
an appeal from a dismissal pursuant to Sec.  268.106. By written 
agreement within those time periods, the complainant and the Board may 
voluntarily extend the time period for not more than an additional 90 
days. The Board may unilaterally extend the time period or any period 
of extension for not more than 30 days where it must sanitize a 
complaint file that may contain information classified pursuant to 
Executive Order No. 12356, or successor orders, as secret in the 
interest of national defense or foreign policy, provided the Board 
notifies the complainant of the extension.
    (2) Confidential supervisory information, as defined in 12 CFR 
261.2(c), and other confidential information of the Board may be 
included in the investigative file by the investigator, the EEO 
Programs Director, or another appropriate officer of the Board, where 
such information is relevant to the complaint. Neither the complainant 
nor the complainant's personal representative may make further 
disclosure of such information, however, except in compliance with the 
Board's Rules Regarding Availability of Information, 12 CFR part 261, 
and where applicable, the Board's Rules Regarding Access to Personal 
Information under the Privacy Act of 1974, 12 CFR part 261a.
    (f) Within 180 days from the filing of the complaint, or where a 
complaint was amended, within the earlier of 180 days after the last 
amendment to the complaint or 360 days after the filing of the original 
complaint, within the time period contained in an order from the Office 
of Federal Operations on an appeal from a dismissal, or within any 
period of extension provided for in paragraph (e) of this section, the 
Board shall provide the complainant with a copy of the investigative 
file, and shall notify the complainant that, within 30 days of receipt 
of the investigative file, the complainant has the right to request a 
hearing and decision from an administrative judge or may request an 
immediate final decision pursuant to Sec.  268.109(b) from the Board.
    (g) Where the complainant has received the notice required in 
paragraph (f) of this section or at any time after 180 days have 
elapsed from the filing of the complaint, the complainant may request a 
hearing by submitting a written request for a hearing directly to the 
EEOC office indicated in the Board's

[[Page 18089]]

acknowledgment letter. The complainant shall send a copy of the request 
for a hearing to the Board's EEO Programs Office. Within 15 days of 
receipt of the request for a hearing, the Board's EEO Programs Office 
shall provide a copy of the complaint file to EEOC and, if not 
previously provided, to the complainant.


Sec.  268.108  Hearings.

    (a) When a complainant requests a hearing, the Commission shall 
appoint an administrative judge to conduct a hearing in accordance with 
this section. Upon appointment, the administrative judge shall assume 
full responsibility for the adjudication of the complaint, including 
overseeing the development of the record. Any hearing will be conducted 
by an administrative judge or hearing examiner with appropriate 
security clearances.
    (b) Dismissals. Administrative judges may dismiss complaints 
pursuant to Sec.  268.106, on their own initiative, after notice to the 
parties, or upon the Board's motion to dismiss a complaint.
    (c) Offer of resolution. (1) Any time after the filing of the 
written complaint but not later than the date an administrative judge 
is appointed to conduct a hearing, the Board may make an offer of 
resolution to a complainant who is represented by an attorney.
    (2) Any time after the parties have received notice that an 
administrative judge has been appointed to conduct a hearing, but not 
later than 30 days prior to the hearing, the Board may make an offer of 
resolution to the complainant, whether represented by an attorney or 
not.
    (3) The offer of resolution shall be in writing and shall include a 
notice explaining the possible consequences of failing to accept the 
offer. The Board's offer, to be effective, must include attorney's fees 
and costs and must specify any non-monetary relief. With regard to 
monetary relief, the Board may make a lump sum offer covering all forms 
of monetary liability, or it may itemize the amounts and types of 
monetary relief being offered. The complainant shall have 30 days from 
receipt of the offer of resolution to accept it. If the complainant 
fails to accept an offer of resolution and the relief awarded in the 
administrative judge's decision, the Board's final decision, or the 
Commission's decision on appeal is not more favorable than the offer, 
then, except where the interest of justice would not be served, the 
complainant shall not receive payment from the Board of attorney's fees 
or costs incurred after the expiration of the 30-day acceptance period. 
An acceptance of an offer must be in writing and will be timely if 
postmarked or received within the 30-day period. Where a complainant 
fails to accept an offer of resolution, the Board may make other offers 
of resolution and either party may seek to negotiate a settlement of 
the complaint at any time.
    (d) Discovery. The administrative judge shall notify the parties of 
the right to seek discovery prior to the hearing and may issue such 
discovery orders as are appropriate. Unless the parties agree in 
writing concerning the methods and scope of discovery, the party 
seeking discovery shall request authorization from the administrative 
judge prior to commencing discovery. Both parties are entitled to 
reasonable development of evidence on matters relevant to the issues 
raised in the complaint, but the administrative judge may limit the 
quantity and timing of discovery. Evidence may be developed through 
interrogatories, depositions, and requests for admissions, stipulations 
or production of documents. It shall be grounds for objection to 
producing evidence that the information sought by either party is 
irrelevant, overburdensome, repetitious, or privileged.
    (e) Conduct of hearing. The Board shall provide for the attendance 
at a hearing of all employees approved as witnesses by an 
administrative judge. Attendance at hearings will be limited to persons 
determined by the administrative judge to have direct knowledge 
relating to the complaint. Hearings are part of the investigative 
process and are thus closed to the public. The administrative judge 
shall have the power to regulate the conduct of a hearing, limit the 
number of witnesses where testimony would be repetitious, and exclude 
any person from the hearing for contumacious conduct or misbehavior 
that obstructs the hearing. The administrative judge shall receive into 
evidence information or documents relevant to the complaint. Rules of 
evidence shall not be applied strictly, but the administrative judge 
shall exclude irrelevant or repetitious evidence. The administrative 
judge or the Commission may refer to the Disciplinary Committee of the 
appropriate Bar Association any attorney or, upon reasonable notice and 
an opportunity to be heard, suspend or disqualify from representing 
complainants or agencies in EEOC hearings any representative who 
refuses to follow the orders of an administrative judge, or who 
otherwise engages in improper conduct.
    (f) Procedures. (1) The complainant, the Board and any employee of 
the Board shall produce such documentary and testimonial evidence as 
the administrative judge deems necessary. The administrative judge 
shall serve all orders to produce evidence on both parties.
    (2) Administrative judges are authorized to administer oaths. 
Statements of witnesses shall be made under oath or affirmation or, 
alternatively, by written statement under penalty of perjury.
    (3) When the complainant, or the Board, or its employees fail 
without good cause shown to respond fully and in timely fashion to an 
order of an administrative judge, or requests for the investigative 
file, for documents, records, comparative data, statistics, affidavits, 
or the attendance of witness(es), the administrative judge shall, in 
appropriate circumstances:
    (i) Draw an adverse inference that the requested information, or 
the testimony of the requested witness, would have reflected 
unfavorably on the party refusing to provide the requested information;
    (ii) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (iii) Exclude other evidence offered by the party failing to 
produce the requested information or witness;
    (iv) Issue a decision fully or partially in favor of the opposing 
party; or
    (v) Take such other actions as appropriate.
    (g) Decisions without hearing. (1) If a party believes that some or 
all material facts are not in genuine dispute and there is no genuine 
issue as to credibility, the party may, at least 15 days prior to the 
date of the hearing or at such earlier time as required by the 
administrative judge, file a statement with the administrative judge 
prior to the hearing setting forth the fact or facts and referring to 
the parts of the record relied on to support the statement. The 
statement must demonstrate that there is no genuine issue as to any 
such material fact. The party shall serve the statement on the opposing 
party.
    (2) The opposing party may file an opposition within 15 days of 
receipt of the statement in paragraph (g)(1) of this section. The 
opposition may refer to the record in the case to rebut the statement 
that a fact is not in dispute or may file an affidavit stating that the 
party cannot, for reasons stated, present facts to oppose the request. 
After considering the submissions, the administrative judge may order 
that discovery be permitted on the fact or facts involved, limit the 
hearing to the issues remaining in dispute, issue a decision without a

[[Page 18090]]

hearing or make such other ruling as is appropriate.
    (3) If the administrative judge determines upon his or her own 
initiative that some or all facts are not in genuine dispute, he or she 
may, after giving notice to the parties and providing them an 
opportunity to respond in writing within 15 calendar days, issue an 
order limiting the scope of the hearing or issue a decision without 
holding a hearing.
    (h) Record of hearing. The hearing shall be recorded and the Board 
shall arrange and pay for verbatim transcripts. All documents submitted 
to, and accepted by, the administrative judge at the hearing shall be 
made part of the record of the hearing. If the Board submits a document 
that is accepted, it shall furnish a copy of the document to the 
complainant. If the complainant submits a document that is accepted, 
the administrative judge shall make the document available to the 
Board's representative for reproduction.
    (i) Decisions by administrative judges. Unless the administrative 
judge makes a written determination that good cause exists for 
extending the time for issuing a decision, an administrative judge 
shall issue a decision on the complaint, and shall order appropriate 
remedies and relief where discrimination is found, within 180 days of 
receipt by the administrative judge of the complaint file from the 
Board. The administrative judge shall send copies of the hearing 
record, including the transcript, and the decision to the parties. If 
the Board does not issue a final order within 40 days of receipt of the 
administrative judge's decision in accordance with Sec.  268.109(a), 
then the decision of the administrative judge shall become the final 
action of the Board.


Sec.  268.109  Final action by the Board.

    (a) Final action by the Board following a decision by an 
administrative judge. When an EEOC administrative judge has issued a 
decision under Sec. Sec.  268.108(b), (g), or (i), the Board shall take 
final action on the complaint by issuing a final order within 40 days 
of receipt of the hearing file and the administrative judge's decision. 
The final order shall notify the complainant whether or not the Board 
will fully implement the decision of the administrative judge and shall 
contain notice of the complainant's right to appeal to the Equal 
Employment Opportunity Commission, the right to file a civil action in 
federal district court, the name of the proper defendant in any such 
lawsuit and the applicable time limits for appeals and lawsuits. If the 
final order does not fully implement the decision of the administrative 
judge, then the Board shall simultaneously file an appeal in accordance 
with Sec.  268.403 and append a copy of its appeal to the final order. 
A copy of EEOC Form 573 shall be attached to the final order.
    (b) Final action by the Board in all other circumstances. When the 
Board dismisses an entire complaint under Sec.  268.106, receives a 
request for an immediate final decision or does not receive a reply to 
the notice issued under Sec.  268.107(f), the Board shall take final 
action by issuing a final decision. The final decision shall consist of 
findings by the Board on the merits of each issue in the complaint, or, 
as appropriate, the rationale for dismissing any claims in the 
complaint and, when discrimination is found, appropriate remedies and 
relief in accordance with subpart F of this part. The Board shall issue 
the final decision within 60 days of receiving notification that a 
complainant has requested an immediate decision from the Board, or 
within 60 days of the end of the 30-day period for the complainant to 
request a hearing or an immediate final decision where the complainant 
has not requested either a hearing or a decision. The final action 
shall contain notice of the right to appeal the final action to the 
Equal Employment Opportunity Commission, the right to file a civil 
action in federal district court, the name of the proper defendant in 
any such lawsuit and the applicable time limits for appeals and 
lawsuits. A copy of EEOC Form 573 shall be attached to the final 
action. The Board may issue a final decision within 30 days after 
receiving a decision of the Commission pursuant to Sec.  268.405(c) of 
this part.

Subpart C--Provisions Applicable to Particular Complaints


Sec.  268.201  Age Discrimination in Employment Act.

    (a) As an alternative to filing a complaint under this part, an 
aggrieved individual may file a civil action in a United States 
district court under the ADEA against the Chairman of the Board of 
Governors after giving the Commission not less than 30 days' notice of 
the intent to file such an action. Such notice must be filed in writing 
with EEOC, at PO Box 19848, Washington, DC 20036, or by personal 
delivery or facsimile within 180 days of the occurrence of the alleged 
unlawful practice.
    (b) The Commission may exempt a position from the provisions of the 
ADEA if the Commission establishes a maximum age requirement for the 
position on the basis of a determination that age is a bona fide 
occupational qualification necessary to the performance of the duties 
of the position.
    (c) When an individual has filed an administrative complaint 
alleging age discrimination that is not a mixed case, administrative 
remedies will be considered to be exhausted for purposes of filing a 
civil action:
    (1) 180 days after the filing of an individual complaint if the 
Board has not taken final action and the individual has not filed an 
appeal or 180 days after the filing of a class complaint if the Board 
has not issued a final decision;
    (2) After final action on an individual or class complaint if the 
individual has not filed an appeal; or
    (3) After the issuance of a final decision by the Commission on an 
appeal or 180 days after the filing of an appeal, if the Commission has 
not issued a final decision.


Sec.  268.202  Equal Pay Act.

    Complaints alleging violations of the Equal Pay Act shall be 
processed under this part.


Sec.  268.203  Rehabilitation Act.

    (a) Model employer. The Board shall be a model employer of 
individuals with disabilities. The Board 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 regulation at 29 CFR part 1630.


Sec.  268.204  Class complaints.

    (a) Definitions--(1) Class is a group of Board employees, former 
employees or applicants for employment who, it is alleged, have been or 
are being adversely affected by a Board personnel management policy or 
practice that discriminates against the group on the basis of their 
race, color, religion, sex, national origin, age or disability.
    (2) Class complaint is a written complaint of discrimination filed 
on behalf of a class by the agent of the class alleging that:
    (i) The class is so numerous that a consolidated complaint of the 
members of the class is impractical;

[[Page 18091]]

    (ii) There are questions of fact common to the class;
    (iii) The claims of the agent of the class are typical of the 
claims of the class;
    (iv) The agent of the class, or, if represented, the 
representative, will fairly and adequately protect the interests of the 
class.
    (3) An agent of the class is a class member who acts for the class 
during the processing of the class complaint.
    (b) Pre-complaint processing. An employee or applicant who wishes 
to file a class complaint must seek counseling and be counseled in 
accordance with Sec.  268.104. A complainant may move for class 
certification at any reasonable point in the process when it becomes 
apparent that there are class implications to the claim raised in an 
individual complaint. If a complainant moves for class certification 
after completing the counseling process contained in Sec.  268.104, no 
additional counseling is required. The administrative judge shall deny 
class certification when the complainant has unduly delayed in moving 
for certification.
    (c) Filing and presentation of a class complaint. (1) A class 
complaint must be signed by the agent or representative and must 
identify the policy or practice adversely affecting the class as well 
as the specific action or matter affecting the class agent.
    (2) The complaint must be filed with the Board not later than 15 
days after the agent's receipt of the notice of right to file a class 
complaint.
    (3) The complaint shall be processed promptly; the parties shall 
cooperate and shall proceed at all times without undue delay.
    (d) Acceptance or dismissal. (1) Within 30 days of the Board's 
receipt of a complaint, the Board shall: Designate an agency 
representative who shall not be one of the individuals referenced in 
Sec.  268.102(b)(4), and forward the complaint, along with a copy of 
the Counselor's report and any other information pertaining to 
timeliness or other relevant circumstances related to the complaint, to 
the Commission. The Commission shall assign the complaint to an 
administrative judge or complaints examiner with a proper security 
clearance when necessary. The administrative judge may require the 
complainant or the Board to submit additional information relevant to 
the complaint.
    (2) The administrative judge may dismiss the complaint, or any 
portion, for any of the reasons listed in Sec.  268.106 or because it 
does not meet the prerequisites of a class complaint under Sec.  
268.204(a)(2).
    (3) If an allegation is not included in the Counselor's report, the 
administrative judge shall afford the agent 15 days to state whether 
the matter was discussed with the Counselor and, if not, explain why it 
was not discussed. If the explanation is not satisfactory, the 
administrative judge shall dismiss the allegation. If the explanation 
is satisfactory, the administrative judge shall refer the allegation to 
the Board for further counseling of the agent. After counseling, the 
allegation shall be consolidated with the class complaint.
    (4) If an allegation lacks specificity and detail, the 
administrative judge shall afford the agent 15 days to provide specific 
and detailed information. The administrative judge shall dismiss the 
complaint if the agent fails to provide such information within the 
specified time period. If the information provided contains new 
allegations outside the scope of the complaint, the administrative 
judge shall advise the agent how to proceed on an individual or class 
basis concerning these allegations.
    (5) The administrative judge shall extend the time limits for 
filing a complaint and for consulting with a Counselor in accordance 
with the time limit extension provisions contained in Sec. Sec.  
268.104(a)(2) and 268.604.
    (6) When appropriate, the administrative judge may decide that a 
class be divided into subclasses and that each subclass be treated as a 
class, and the provisions of this section then shall be construed and 
applied accordingly.
    (7) The administrative judge shall transmit his or her decision to 
accept or dismiss a complaint to the Board and the agent. The Board 
shall take final action by issuing a final order within 40 days of 
receipt of the hearing record and administrative judge's decision. The 
final order shall notify the agent whether or not the Board will 
implement the decision of the administrative judge. If the final order 
does not implement the decision of the administrative judge, the Board 
shall simultaneously appeal the administrative judge's decision in 
accordance with Sec.  268.403 and append a copy of the appeal to the 
final order. A dismissal of a class complaint shall inform the agent 
either that the complaint is being filed on that date as an individual 
complaint of discrimination and will be processed under subpart B or 
that the complaint is also dismissed as an individual complaint in 
accordance with Sec.  268.106. In addition, it shall inform the agent 
of the right to appeal the dismissal of the class complaint to the 
Equal Employment Opportunity Commission or to file a civil action and 
shall include EEOC Form 573, Notice of Appeal/Petition.
    (e) Notification. (1) Within 15 days of receiving notice that the 
administrative judge has accepted a class complaint or a reasonable 
time frame specified by the administrative judge, the Board shall use 
reasonable means, such as delivery, mailing to last known address or 
distribution, to notify all class members of the acceptance of the 
class complaint.
    (2) Such notice shall contain:
    (i) An identification of the Board as the named agency, its 
location, and the date of acceptance of the complaint;
    (ii) A description of the issues accepted as part of the class 
complaint;
    (iii) An explanation of the binding nature of the final decision or 
resolution of the class complaint on class members; and
    (iv) The name, address and telephone number of the class 
representative.
    (f) Obtaining evidence concerning the complaint. (1) The 
administrative judge shall notify the agent and the Board's 
representative of the time period that will be allowed both parties to 
prepare their cases. This time period will include at least 60 days and 
may be extended by the administrative judge upon the request of either 
party. Both parties are entitled to reasonable development of evidence 
on matters relevant to the issues raised in the complaint. Evidence may 
be developed through interrogatories, depositions, and requests for 
admissions, stipulations or production of documents. It shall be 
grounds for objection to producing evidence that the information sought 
by either party is irrelevant, overburdensome, repetitious, or 
privileged.
    (2) If mutual cooperation fails, either party may request the 
administrative judge to rule on a request to develop evidence. If a 
party fails without good cause shown to respond fully and in timely 
fashion to a request made or approved by the administrative judge for 
documents, records, comparative data, statistics or affidavits, and the 
information is solely in the control of one party, such failure may, in 
appropriate circumstances, cause the administrative judge:
    (i) To draw an adverse inference that the requested information 
would have reflected unfavorably on the party refusing to provide the 
requested information;
    (ii) To consider the matters to which the requested information 
pertains to be

[[Page 18092]]

established in favor of the opposing party;
    (iii) To exclude other evidence offered by the party failing to 
produce the requested information;
    (iv) To recommend that a decision be entered in favor of the 
opposing party; or
    (v) To take such other actions as the administrative judge deems 
appropriate.
    (3) During the period for development of evidence, the 
administrative judge may, in his or her discretion, direct that an 
investigation of facts relevant to the class complaint or any portion 
be conducted by an agency certified by the Commission.
    (4) Both parties shall furnish to the administrative judge copies 
of all materials that they wish to be examined and such other material 
as may be requested.
    (g) Opportunity for resolution of the complaint. (1) The 
administrative judge shall furnish the agent and the Board's 
representative a copy of all materials obtained concerning the 
complaint and provide opportunity for the agent to discuss the 
materials with the Board's representative and attempt resolution of the 
complaint.
    (2) The complaint may be resolved by agreement of the Board and the 
agent at any time pursuant to the notice and approval procedure 
contained in paragraph (g)(4) of this section.
    (3) If the complaint is resolved, the terms of the resolution shall 
be reduced to writing and signed by the agent and the Board.
    (4) Notice of the resolution shall be given to all class members in 
the same manner as notification of the acceptance of the class 
complaint and to the administrative judge. It shall state the relief, 
if any, to be granted by the Board and the name and address of the EEOC 
administrative judge assigned to the case. It shall state that within 
30 days of the date of the notice of resolution, any member of the 
class may petition the administrative judge to vacate the resolution 
because it benefits only the class agent, or is otherwise not fair, 
adequate and reasonable to the class as a whole. The administrative 
judge shall review the notice of resolution and consider any petitions 
to vacate filed. If the administrative judge finds that the proposed 
resolution is not fair, adequate and reasonable to the class as a 
whole, the administrative judge shall issue a decision vacating the 
agreement and may replace the original class agent with a petitioner or 
some other class member who is eligible to be the class agent during 
further processing of the class complaint. The decision shall inform 
the former class agent or the petitioner of the right to appeal the 
decision to the Equal Employment Opportunity Commission and include 
EEOC Form 573, Notice of Appeal/Petition. If the administrative judge 
finds that the resolution is fair, adequate and reasonable to the class 
as a whole, the resolution shall bind all members of the class.
    (h) Hearing. On expiration of the period allowed for preparation of 
the case, the administrative judge shall set a date for hearing. The 
hearing shall be conducted in accordance with 12 CFR 268.108(a) through 
(f).
    (i) Report of findings and recommendations. (1) The administrative 
judge shall transmit to the Board a report of findings and 
recommendations on the complaint, including a recommended decision, 
systemic relief for the class and any individual relief, where 
appropriate, with regard to the personnel action or matter that gave 
rise to the complaint.
    (2) If the administrative judge finds no class relief appropriate, 
he or she shall determine if a finding of individual discrimination is 
warranted and, if so, shall recommend appropriate relief.
    (3) The administrative judge shall notify the agent of the date on 
which the report of findings and recommendations was forwarded to the 
Board.
    (j) Board decision. (1) Within 60 days of receipt of the report of 
findings and recommendations issued under Sec.  268.204(i), the Board 
shall issue a final decision, which shall accept, reject, or modify the 
findings and recommendations of the administrative judge.
    (2) The final decision of the Board shall be in writing and shall 
be transmitted to the agent by certified mail, return receipt 
requested, along with a copy of the report of findings and 
recommendations of the administrative judge.
    (3) When the Board's final decision is to reject or modify the 
findings and recommendations of the administrative judge, the decision 
shall contain specific reasons for the Board's action.
    (4) If the Board has not issued a final decision within 60 days of 
its receipt of the administrative judge's report of findings and 
recommendations, those findings and recommendations shall become the 
final decision. The Board shall transmit the final decision to the 
agent within five days of the expiration of the 60-day period.
    (5) The final decision of the Board shall require any relief 
authorized by law and determined to be necessary or desirable to 
resolve the issue of discrimination.
    (6) The final decision on a class complaint shall, subject to 
subpart E of this part, be binding on all members of the class and the 
Board.
    (7) The final decision shall inform the agent of the right to 
appeal or to file a civil action in accordance with subpart E of this 
part and of the applicable time limits.
    (k) Notification of decision. The Board shall notify class members 
of the final decision and relief awarded, if any, through the same 
media employed to give notice of the existence of the class complaint. 
The notice, where appropriate, shall include information concerning the 
rights of class members to seek individual relief, and of the 
procedures to be followed. Notice shall be given by the Board within 10 
days of the transmittal of its final decision to the agent.
    (1) Relief for individual class members. (1) When discrimination is 
found, the Board must eliminate or modify the employment policy or 
practice out of which the complaint arose and provide individual 
relief, including an award of attorney's fees and costs, to the agent 
in accordance with Sec.  268.501.
    (2) When class-wide discrimination is not found, but it is found 
that the class agent is a victim of discrimination, Sec.  268.501 shall 
apply. The Board shall also, within 60 days of the issuance of the 
final decision finding no class-wide discrimination, issue the 
acknowledgment of receipt of an individual complaint as required by 
Sec.  268.105(d) and process in accordance with the provisions of 
subpart B of this part, each individual complaint that was subsumed 
into the class complaint.
    (3) When discrimination is found in the final decision and a class 
member believes that he or she is entitled to individual relief, the 
class member may file a written claim with the Board or the Board's EEO 
Programs Director within 30 days of receipt of notification by the 
Board of its final decision. Administrative judges shall retain 
jurisdiction over the complaint in order to resolve any disputed claims 
by class members. The claim must include a specific, detailed showing 
that the claimant is a class member who was affected by the 
discriminatory policy or practice, and that this discriminatory action 
took place within the period of time for which the Board found class-
wide discrimination in its final decision. Where a finding of 
discrimination against a class has been made, there shall be a 
presumption of discrimination as to each member of the class. The Board 
must show by clear and convincing evidence that any class

[[Page 18093]]

member is not entitled to relief. The administrative judge may hold a 
hearing or otherwise supplement the record on a claim filed by a class 
member. The Board or the Commission may find class-wide discrimination 
and order remedial action for any policy or practice in existence 
within 45 days of the agent's initial contact with the Counselor. 
Relief otherwise consistent with this Part may be ordered for the time 
the policy or practice was in effect. The Board shall issue a final 
decision on each such claim within 90 days of filing. Such decision 
must include a notice of the right to file an appeal or a civil action 
in accordance with subpart E of this part and the applicable time 
limits.


Sec.  268.205  Employment of noncitizens.

    (a) Definitions. The definitions contained in this paragraph (a) 
shall apply only to this section.
    (1) Intending citizen means a citizen or national of the United 
States, or a noncitizen who:
    (i) Is a protected individual as defined in 8 U.S.C. 1324b(a)(3); 
and
    (ii) Has evidenced an intention to become a United States citizen.
    (2) Noncitizen means any person who is not a citizen of the United 
States.
    (3) Sensitive information means:
    (i)(A) Information that is classified for national security 
purposes under Executive Order No. 12356 (3 CFR, 1982 Comp., p. 166), 
including any amendments or superseding orders that the President of 
the United States may issue from time to time;
    (B) Information that consists of confidential supervisory 
information of the Board, as defined in 12 CFR 261.2(c); or
    (C) Information the disclosure or premature disclosure of which to 
unauthorized persons may be reasonably likely to impair the formulation 
or implementation of monetary policy, or cause unnecessary or 
unwarranted disturbances in securities or other financial markets, such 
that access to such information must be limited to persons who are 
loyal to the United States.
    (ii) For purposes of paragraph (a)(3)(i)(C) of this section, 
information may not be deemed sensitive information merely because it 
would be exempt from disclosure under the Freedom of Information Act (5 
U.S.C. 552) but sensitive information must be information the 
unauthorized disclosure or premature disclosure of which may be 
reasonably likely to impair important functions or operations of the 
Board.
    (4) Sensitive position means any position of employment in which 
the employee will be required to have access to sensitive information.
    (b) Prohibitions--(1) Unauthorized aliens. The Board shall not hire 
any person unless that person is able to satisfy the requirements of 
Section 101 of the Immigration Reform and Control Act of 1986.
    (2) Employment in sensitive positions. The Board shall not hire any 
person to a sensitive position unless such person is a citizen of the 
United States or, if a noncitizen, is an intending citizen.
    (3) Preference. Consistent with the Immigration Reform and Control 
Act of 1986, and other applicable law, applicants for employment at the 
Board who are citizens of the United States shall be preferred over 
equally qualified applicants who are not United States citizens.
    (c) Exception. The prohibition of paragraph (b)(2) of this section 
does not apply to hiring for positions for which a security clearance 
is required under Executive Order No. 10450, including any subsequent 
amendments or superseding orders that the President of the United 
States may issue from time to time, where the noncitizen either has or 
can obtain the necessary security clearance. Any offer of employment 
authorized by this paragraph (c) shall be contingent upon receipt of 
the required security clearance in the manner prescribed by law.
    (d) Applicability. This section applies to employment in all 
positions at the Board and to employment by Federal Reserve Banks of 
examiners who must be appointed, or selected and approved by the Board 
pursuant to 12 U.S.C. 325, 326, 338, or 625.

Subpart D--Related Processes


Sec.  268.301  Negotiated grievance procedure.

    When an employee of the Board, which is not an agency subject to 5 
U.S.C. 7121(d), is covered by a negotiated grievance procedure, 
allegations of discrimination shall be processed as complaints under 
this part, except that the time limits for processing the complaint 
contained in Sec.  268.105 and for appeal to the Commission contained 
in Sec.  268.402 may be held in abeyance during processing of a 
grievance covering the same matter as the complaint if the Board 
notifies the complainant in writing that the complaint will be held in 
abeyance pursuant to this section.


Sec.  268.302  Mixed case complaints.

    A mixed case complaint is a complaint of employment discrimination 
filed with the Board based on race, color, religion, sex, national 
origin, age or disability related to or stemming from an action that 
can be appealed to the Merit System Protection Board (MSPB). The 
complaint may contain only an allegation of employment discrimination 
or it may contain additional allegations that the MSPB has jurisdiction 
to address. A mixed case appeal is an appeal filed with the MSPB that 
alleges that an appealable Board action was effected, in whole or in 
part, because of discrimination on the basis of race, color, religion, 
sex, national origin, disability or age. Only a Board employee who is a 
preference eligible employee as defined by the Veterans Preference Act 
can file a mixed case complaint with the Board or a mixed case appeal 
with the MSPB. A mixed case complaint or mixed case appeal may only be 
filed for action(s) over which the MSPB has jurisdiction. The Board 
will apply sections 1614.302 to 1614.310 of 29 CFR to the processing of 
a mixed case complaint or mixed case appeal.

Subpart E--Appeals to the Equal Employment Opportunity Commission


Sec.  268.401  Appeals to the Equal Employment Opportunity Commission.

    (a) A complainant may appeal the Board's final action or dismissal 
of a complaint.
    (b) The Board may appeal as provided in Sec.  268.109(a).
    (c) A class agent or the Board may appeal an administrative judge's 
decision accepting or dismissing all or part of a class complaint; a 
class agent may appeal a final decision on a class complaint; a class 
member may appeal a final decision on a claim for individual relief 
under a class complaint; and a class member, a class agent or the Board 
may appeal a final decision on a petition pursuant to Sec.  
268.204(g)(4).
    (d) A complainant, agent of the class or individual class claimant 
may appeal to the Commission the Board's alleged noncompliance with a 
settlement agreement or final decision in accordance with Sec.  
268.504.


Sec.  268.402  Time for appeals to the Equal Employment Opportunity 
Commission.

    (a) Appeals described in Sec.  268.401(a) and (c) must be filed 
within 30 days of receipt of the dismissal, final action or decision. 
Appeals described in Sec.  268.401(b) must be filed within 40 days of 
receipt of the hearing file and decision. Where a complainant has 
notified the Board's EEO Programs Director of alleged noncompliance 
with a settlement agreement in accordance

[[Page 18094]]

with Sec.  268.504, the complainant may file an appeal 35 days after 
service of the allegations of noncompliance, but no later than 30 days 
after receipt of the Board's determination.
    (b) If the complainant is represented by an attorney of record, 
then the 30-day time period provided in paragraph (a) of this section 
within which to appeal shall be calculated from the receipt of the 
required document by the attorney. In all other instances, the time 
within which to appeal shall be calculated from the receipt of the 
required document by the complainant.


Sec.  268.403  How to appeal.

    (a) The complainant, the Board, agent or individual class claimant 
(hereinafter appellant) must file an appeal with the Director, Office 
of Federal Operations, Equal Employment Opportunity Commission, at PO 
Box 19848, Washington, DC 20036, or by personal delivery or facsimile. 
The appellant should use EEOC Form 573, Notice of Appeal/Petition, and 
should indicate what is being appealed.
    (b) The appellant shall furnish a copy of the appeal to the 
opposing party at the same time it is filed with the Commission. In or 
attached to the appeal to the Commission, the appellant must certify 
the date and method by which service was made on the opposing party.
    (c) If an appellant does not file an appeal within the time limits 
of this subpart, the appeal shall be dismissed by the Commission as 
untimely.
    (d) Any statement or brief on behalf of a complainant in support of 
the appeal must be submitted to the Office of Federal Operations within 
30 days of filing the notice of appeal. Any statement or brief on 
behalf of the Board in support of its appeal must be submitted to the 
Office of Federal Operations within 20 days filing the notice of 
appeal. The Office of Federal Operations will accept statements or 
briefs in support of an appeal by facsimile transmittal, provided they 
are no more than 10 pages long.
    (e) The Board must submit the complaint file to the Office of 
Federal Operations within 30 days of initial notification that the 
complainant has filed an appeal or within 30 days of submission of an 
appeal by the Board.
    (f) Any statement or brief in opposition to an appeal must be 
submitted to the Commission and served on the opposing party within 30 
days of receipt of the statement or brief supporting the appeal, or, if 
no statement or brief supporting the appeal is filed, within 60 days of 
receipt of the appeal. The Office of Federal Operations will accept 
statements or briefs in opposition to an appeal by facsimile provided 
they are no more than 10 pages long.


Sec.  268.404  Appellate Procedure.

    (a) On behalf of the Commission, the Office of Federal Operations 
shall review the complaint file and all written statements and briefs 
from either party. The Commission may supplement the record by an 
exchange of letters or memoranda, investigation, remand to the Board or 
other procedures.
    (b) If the Office of Federal Operations requests information from 
one or both of the parties to supplement the record, each party 
providing information shall send a copy of the information to the other 
party.
    (c) When either party to an appeal fails without good cause shown 
to comply with the requirements of this section or to respond fully and 
in timely fashion to requests for information, the Office of Federal 
Operations shall, in appropriate circumstances:
    (1) Draw an adverse inference that the requested information would 
have reflected unfavorably on the party refusing to provide the 
requested information;
    (2) Consider the matters to which the requested information or 
testimony pertains to be established in favor of the opposing party;
    (3) Issue a decision fully or partially in favor of the opposing 
party; or
    (4) Take such other actions as appropriate.


Sec.  268.405  Decisions on appeals.

    (a) The Office of Federal Operations, on behalf of the Commission, 
shall issue a written decision setting forth its reasons for the 
decision. The Commission shall dismiss appeals in accordance with 
Sec. Sec.  268.106, 268.403(c) and 268.408. The decision on an appeal 
from the Board's final action shall be based on a de novo review, 
except that the review of the factual findings in a decision by an 
administrative judge issued pursuant to Sec.  268.108(i) shall be based 
on a substantial evidence standard of review. If the decision contains 
a finding of discrimination, appropriate remedy(ies) shall be included 
and, where appropriate, the entitlement to interest, attorney's fees or 
costs shall be indicated. The decision shall reflect the date of its 
issuance, inform the complainant of his or her civil action rights, and 
be transmitted to the complainant and the Board by first class mail.
    (b) A decision issued under paragraph (a) of this section is final, 
subject to paragraph (c) of this section, within the meaning of Sec.  
268.406 unless the Commission reconsiders the case. A party may request 
reconsideration within 30 days of receipt of a decision of the 
Commission, which the Commission in its discretion may grant, if the 
party demonstrates that:
    (1) The appellate decision involved a clearly erroneous 
interpretation of material fact or law; or
    (2) The decision will have a substantial impact on the policies, 
practices or operations of the Board.
    (c) The Board, within 30 days of receiving the decision of the 
Commission, shall issue a final decision based upon that decision.


Sec.  268.406  Civil action: Title VII, Age Discrimination in 
Employment Act and Rehabilitation Act.

    A complainant who has filed an individual complaint, an agent who 
has filed a class complaint or a claimant who has filed a claim for 
individual relief pursuant to a class complaint is authorized under 
title VII, the ADEA and the Rehabilitation Act to file a civil action 
in an appropriate United States District Court:
    (a) Within 90 days of receipt of the final action on an individual 
or class complaint if no appeal has been filed;
    (b) After 180 days from the date of filing an individual or class 
complaint if an appeal has not been filed and final action has not been 
taken;
    (c) Within 90 days of receipt of the Commission's final decision on 
an appeal; or
    (d) After 180 days from the date of filing an appeal with the 
Commission if there has been no final decision by the Commission.


Sec.  268.407  Civil action: Equal Pay Act.

    A complainant is authorized under section 16(b) of the Fair Labor 
Standards Act (29 U.S.C. 216(b)) to file a civil action in a court of 
competent jurisdiction within two years or, if the violation is 
willful, three years of the date of the alleged violation of the Equal 
Pay Act regardless of whether he or she pursued any administrative 
complaint processing. Recovery of back wages is limited to two years 
prior to the date of filing suit, or to three years if the violation is 
deemed willful; liquidated damages in an equal amount may also be 
awarded. The filing of a complaint or appeal under this part shall not 
toll the time for filing a civil action.


Sec.  268.408  Effect of filing a civil action.

    Filing a civil action under Sec. Sec.  268.406 or 268.407 shall 
terminate Commission processing of the appeal. If private suit is filed 
subsequent to the filing of an

[[Page 18095]]

appeal, the parties are requested to notify the Commission in writing.

Subpart F--Remedies and Enforcement


Sec.  268.501  Remedies and relief.

    (a) When the Board, or the Commission, in an individual case of 
discrimination, finds that an applicant or an employee has been 
discriminated against, the Board shall provide full relief which shall 
include the following elements in appropriate circumstances:
    (1) Notification to all employees of the Board in the affected 
facility of their right to be free of unlawful discrimination and 
assurance that the particular types of discrimination found will not 
recur;
    (2) Commitment that corrective, curative or preventive action will 
be taken, or measures adopted, to ensure that violations of the law 
similar to those found unlawful will not recur;
    (3) An unconditional offer to each identified victim of 
discrimination of placement in the position the person would have 
occupied but for the discrimination suffered by that person, or a 
substantially equivalent position;
    (4) Payment to each identified victim of discrimination on a make 
whole basis for any loss of earnings the person may have suffered as a 
result of the discrimination; and
    (5) Commitment that the Board shall cease from engaging in the 
specific unlawful employment practice found in the case.
    (b) Relief for an applicant. (1)(i) When the Board, or the 
Commission, finds that an applicant for employment has been 
discriminated against, the Board shall offer the applicant the position 
that the applicant would have occupied absent discrimination or, if 
justified by the circumstances, a substantially equivalent position 
unless clear and convincing evidence indicates that the applicant would 
not have been selected even absent the discrimination. The offer shall 
be made in writing. The individual shall have 15 days from receipt of 
the offer within which to accept or decline the offer. Failure to 
accept the offer within the 15-day period will be considered a 
declination of the offer, unless the individual can show that 
circumstances beyond his or her control prevented a response within the 
time limit.
    (ii) If the offer is accepted, appointment shall be retroactive to 
the date the applicant would have been hired. Back pay, computed in the 
manner prescribed in 5 CFR 550.805, shall be awarded from the date the 
individual would have entered on duty until the date the individual 
actually enters on duty unless clear and convincing evidence indicates 
that the applicant would not have been selected even absent 
discrimination. Interest on back pay shall be included in the back pay 
computation where sovereign immunity has been waived. The individual 
shall be deemed to have performed service for the Board during this 
period for all purposes except for meeting service requirements for 
completion of a required probationary or trial period.
    (iii) If the offer of employment is declined, the Board shall award 
the individual a sum equal to the back pay he or she would have 
received, computed in the manner prescribed in 5 CFR 550.805, from the 
date he or she would have been appointed until the date the offer was 
declined, subject to the limitation of paragraph (b)(3) of this 
section. Interest on back pay shall be included in the back pay 
computation. The Board shall inform the applicant, in its offer of 
employment, of the right to this award in the event the offer is 
declined.
    (2) When the Board, or the Commission, finds that discrimination 
existed at the time the applicant was considered for employment but 
also finds by clear and convincing evidence that the applicant would 
not have been hired even absent discrimination, the Board shall 
nevertheless take all steps necessary to eliminate the discriminatory 
practice and ensure it does not recur.
    (3) Back pay under this paragraph (b) for complaints under title 
VII or the Rehabilitation Act may not extend from a date earlier than 
two years prior to the date on which the complaint was initially filed 
by the applicant.
    (c) Relief for an employee. When the Board, or the Commission, 
finds that an employee of the Board was discriminated against, the 
Board shall provide relief, which shall include, but need not be 
limited to, one or more of the following actions:
    (1) Nondiscriminatory placement, with back pay computed in the 
manner prescribed in 5 CFR 550.805, unless clear and convincing 
evidence contained in the record demonstrates that the personnel action 
would have been taken even absent the discrimination. Interest on back 
pay shall be included in the back pay computation where sovereign 
immunity has been waived. The back pay liability under title VII or the 
Rehabilitation Act is limited to two years prior to the date the 
discrimination complaint was filed.
    (2) If clear and convincing evidence indicates that, although 
discrimination existed at the time the personnel action was taken, the 
personnel action would have been taken even absent discrimination, the 
Board shall nevertheless eliminate any discriminatory practice and 
ensure it does not recur.
    (3) Cancellation of an unwarranted personnel action and restoration 
of the employee.
    (4) Expunction from the Board's records of any adverse materials 
relating to the discriminatory employment practice.
    (5) Full opportunity to participate in the employee benefit denied 
(e.g., training, preferential work assignments, overtime scheduling).
    (d) The Board has the burden of proving by a preponderance of the 
evidence that the complainant has failed to mitigate his or her 
damages.
    (e) Attorney's fees or costs--(1) Awards of attorney's fees or 
costs. The provisions of this paragraph relating to the award of 
attorney's fees or costs shall apply to allegations of discrimination 
prohibited by title VII and the Rehabilitation Act. In a decision or 
final action, the Board, administrative judge, or Commission may award 
the applicant or employee or reasonable attorney's fees (including 
expert witness fees) and other costs incurred in the processing of the 
complaint.
    (i) A finding of discrimination raises a presumption of entitlement 
to an award of attorney's fees.
    (ii) Any award of attorney's fees or costs shall be paid by the 
Board.
    (iii) Attorney's fees are allowable only for the services of 
members of the Bar and law clerks, paralegals or law students under the 
supervision of members of the Bar, except that no award is allowable 
for the services of any employee of the Federal Government.
    (iv) Attorney's fees shall be paid for services performed by an 
attorney after the filing of a written complaint, provided that the 
attorney provides reasonable notice of representation to the Board, 
administrative judge or Commission, except that fees are allowable for 
a reasonable period of time prior to the notification of representation 
for any services performed in reaching a determination to represent the 
complainant. The Board is not required to pay attorney's fees for 
services performed during the pre-complaint process, except that fees 
are allowable when the Commission affirms on appeal an administrative 
judge's decision finding discrimination after the Board takes final 
action by not implementing an administrative judge's decision. Written 
submissions to the

[[Page 18096]]

Board that are signed by the representative shall be deemed to 
constitute notice of representation.
    (2) Amount of awards. (i) When the Board, administrative judge or 
the Commission determines an entitlement to attorney's fees or costs, 
the complainant's attorney shall submit a verified statement of 
attorney's fees (including expert witness fees) and other costs, as 
appropriate, to the Board or administrative judge within 30 days of 
receipt of the decision and shall submit a copy of the statement to the 
Board. A statement of attorney's fees and costs shall be accompanied by 
an affidavit executed by the attorney of record itemizing the 
attorney's charges for legal services. The Board may respond to a 
statement of attorney's fees and costs within 30 days of its receipt. 
The verified statement, accompanying affidavit and any Board response 
shall be made a part of the complaint file.
    (ii)(A) The Board or administrative judge shall issue a decision 
determining the amount of attorney's fees or costs due within 60 days 
of receipt of the statement and affidavit. The decision shall include a 
notice of right to appeal to the EEOC along with EEOC Form 573, Notice 
of Appeal/Petition and shall include the specific reasons for 
determining the amount of the award.
    (B) The amount of attorney's fees shall be calculated using the 
following standards: The starting point shall be the number of hours 
reasonably expended multiplied by a reasonable hourly rate. There is a 
strong presumption that this amount represents the reasonable fee. In 
limited circumstances, this amount may be reduced or increased in 
consideration of the degree of success, quality of representation, and 
long delay caused by the Board.
    (C) The costs that may be awarded are those authorized by 28 U.S.C. 
1920 to include: Fees of the reporter for all or any of the 
stenographic transcript necessarily obtained for use in the case; fees 
and disbursements for printing and witnesses; and fees for 
exemplification and copies necessarily obtained for use in the case.
    (iii) Witness fees shall be awarded in accordance with the 
provisions of 28 U.S.C. 1821, except that no award shall be made for a 
Federal employee who is in a duty status when made available as a 
witness.


Sec.  268.502  Compliance with final Commission decisions.

    (a) Relief ordered in a final Commission decision, if accepted 
pursuant to Sec.  268.405(c) as a final decision, or not acted upon the 
Board within the time periods of Sec.  268.405(c), is mandatory and 
binding on the Board except as provided in this section. Failure to 
implement ordered relief shall be subject to judicial enforcement as 
specified in Sec.  268.503(f).
    (b) Notwithstanding paragraph (a) of this section, when the Board 
requests reconsideration and the case involves removal, separation, or 
a suspension continuing beyond the date of the request for 
reconsideration, and when the decision orders retroactive restoration, 
the Board shall comply with the decision to the extent of the temporary 
or conditional restoration of the employee to duty status in the 
position specified by the Commission, pending the outcome of the 
Board's request for reconsideration.
    (1) Service under the temporary or conditional restoration 
provisions of this paragraph (b) shall be credited toward the 
completion of a probationary or trial period or the completion of the 
service requirement for career tenure, if the Commission upholds its 
decision after reconsideration.
    (2) When the Board requests reconsideration, it may delay the 
payment of any amounts ordered to be paid to the complainant until 
after the request for reconsideration is resolved. If the Board delays 
payment of any amount pending the outcome of the request to reconsider 
and the resolution of the request requires the Board to make the 
payment, then the Board shall pay interest from the date of the 
original appellate decision until payment is made.
    (3) The Board shall notify the Commission and the employee in 
writing at the same time it requests reconsideration that the relief it 
provides is temporary or conditional and, if applicable, that it will 
delay the payment of any amounts owed but will pay interest as 
specified in paragraph (b)(2) of this section. Failure of the Board to 
provide notification will result in the dismissal of the Board's 
request.
    (c) When no request for reconsideration is filed or when a request 
for reconsideration is denied, the Board shall provide the relief 
ordered and there is no further right to delay implementation of the 
ordered relief. The relief shall be provided in full not later than 60 
days after receipt of the final decision unless otherwise ordered in 
the decision.


Sec.  268.503  Enforcement of final EEOC decisions.

    (a) Petition for enforcement. A complainant may petition the 
Commission for enforcement of a decision issued under the Commission's 
appellate jurisdiction. The petition shall be submitted to the Office 
of Federal Operations. The petition shall specifically set forth the 
reasons that lead the complainant to believe that the Board is not 
complying with the decision.
    (b) Compliance. On behalf of the Commission, the Office of Federal 
Operations shall take all necessary action to ascertain whether the 
Board is implementing the decision of the Commission. If the Board is 
found not to be in compliance with the decision, efforts shall be 
undertaken to obtain compliance.
    (c) Clarification. On behalf of the Commission, the Office of 
Federal Operations may, on its own motion or in response to a petition 
for enforcement or in connection with a timely request for 
reconsideration, issue a clarification of a prior decision. A 
clarification cannot change the result of a prior decision or enlarge 
or diminish the relief ordered but may further explain the meaning or 
intent of the prior decision.
    (d) Referral to the Commission. Where the Director, Office of 
Federal Operations, is unable to obtain satisfactory compliance with 
the final decision, the Director shall submit appropriate findings and 
recommendations for enforcement to the Commission, or, as directed by 
the Commission, refer the matter to another appropriate agency.
    (e) Commission notice to show cause. The Commission may issue a 
notice to the Chairman of the Board to show cause why there is 
noncompliance. Such notice may request the Chairman of the Board or a 
representative to appear before the Commission or to respond to the 
notice in writing with adequate evidence of compliance or with 
compelling reasons for noncompliance.
    (f) Notification to complainant of completion of administrative 
efforts. Where the Commission has determined that the Board is not 
complying with a prior decision, or where the Board has failed or 
refused to submit any required report of compliance, the Commission 
shall notify the complainant the right to file a civil action for 
enforcement of the decision pursuant to title VII, the ADEA, the Equal 
Pay Act or the Rehabilitation Act and to seek judicial review of the 
Board's refusal to implement the ordered relief pursuant to the 
Administrative Procedures Act, 5 U.S.C. 701 et seq., and the mandamus 
statute, 28 U.S.C. 1361, or to commence de novo proceedings pursuant to 
the appropriate statutes.

[[Page 18097]]

Sec.  268.504  Compliance with settlement agreements and final actions.

    (a) Any settlement agreement knowingly and voluntarily agreed to by 
the parties, reached at any stage of the complaint process, shall be 
binding on both parties. Final action that has not been the subject of 
an appeal or a civil action shall be binding on the Board. If the 
complainant believes that the Board has failed to comply with the terms 
of a settlement agreement or decision, the complainant shall notify the 
Board's EEO Programs Director, in writing, of the alleged noncompliance 
within 30 days of when the complainant knew or should have known of the 
alleged noncompliance. The complainant may request that the terms of 
the settlement agreement be specifically implemented or, alternatively, 
that the complaint be reinstated for further processing from the point 
processing ceased.
    (b) The Board shall resolve the matter and respond to the 
complainant, in writing. If the Board has not responded to the 
complainant, in writing, or if the complainant is not satisfied with 
the Board's attempt to resolve the matter, the complainant may appeal 
to the Commission for a determination as to whether the Board has 
complied with the terms of the settlement agreement or decision. The 
complainant may file such an appeal 35 days after he or she has served 
the Board with the allegations of noncompliance, but must file an 
appeal within 30 days of his or her receipt of the Board's 
determination. The complainant must serve a copy of the appeal on the 
Board and the Board may submit a response to the Commission within 30 
days of receiving notice of the appeal.
    (c) Prior to rendering its determination, the Commission may 
request that the parties submit whatever additional information or 
documentation it deems necessary or may direct that an investigation or 
hearing on the matter be conducted. If the Commission determines that 
the Board is not in compliance and the noncompliance is not 
attributable to acts or conduct of the complainant, it may order such 
compliance or it may order that the complaint be reinstated for further 
processing from the point processing ceased. Allegations that 
subsequent acts of discrimination violate a settlement agreement shall 
be processed as separate complaints under Sec. Sec.  268.105 or 
268.204, as appropriate, rather than under this section.


Sec.  268.505  Interim relief.

    (a)(1) When the Board appeals and the case involves removal, 
separation, or suspension continuing beyond the date of the appeal, and 
when the administrative judge orders retroactive restoration, the Board 
shall comply with the decision to the extent of the temporary or 
conditional restoration of the employee to duty status in the position 
specified in the decision, pending the outcome of the Board appeal. The 
employee may decline the offer of interim relief.
    (2) Service under the temporary or conditional restoration 
provisions of paragraph (a)(1) of this section shall be credited toward 
the completion of a probationary or trial period, eligibility for a 
within-grade increase, or the completion of the service requirement for 
career tenure, if the Commission upholds the decision on appeal. Such 
service shall not be credited toward the completion of any applicable 
probationary or trial period or the completion of the service 
requirement for career tenure if the Commission reverses the decision 
on appeal.
    (3) When the Board appeals, it may delay the payment of any amount, 
other than prospective pay and benefits, ordered to be paid to the 
complainant until after the appeal is resolved. If the Board delays 
payment of any amount pending the outcome of the appeal and the 
resolution of the appeal requires the Board to make the payment, then 
the Board shall pay interest from the date of the original decision 
until payment is made.
    (4) The Board shall notify the Commission and the employee in 
writing at the same time it appeals that the relief it provides is 
temporary or conditional and, if applicable, that it will delay the 
payment of any amounts owed but will pay interest as specified in 
paragraph (b)(2) of this section. Failure of the Board to provide 
notification will result in the dismissal of the Board's appeal.
    (5) The Board may, by notice to the complainant, decline to return 
the complainant to his or her place of employment if it determines that 
the return or presence of the complainant will be unduly disruptive to 
the work environment. However, prospective pay and benefits must be 
provided. The determination not to return the complainant to his or her 
place of employment is not reviewable. A grant of interim relief does 
not insulate a complainant from subsequent disciplinary or adverse 
action.
    (b) If the Board files an appeal and has not provided required 
interim relief, the complainant may request dismissal of the Board's 
appeal. Any such request must be filed with the Office of Federal 
Operations within 25 days of the date of service of the Board's appeal. 
A copy of the request must be served on the Board at the same time it 
is filed with EEOC. The Board may respond with evidence and argument to 
the complainant's request to dismiss within 15 days of the date of 
service of the request.

Subpart G--Matters of General Applicability


Sec.  268.601  EEO group statistics.

    (a) The Board shall establish a system to collect and maintain 
accurate employment information on the race, national origin, sex and 
disability(ies) of its employees.
    (b) Data on race, national origin and sex shall be collected by 
voluntary self-identification. If an employee does not voluntarily 
provide the requested information, the Board shall advise the employee 
of the importance of the data and of the Board's obligation to report 
it. If the employee still refuses to provide the information, the Board 
must make a visual identification and inform the employee of the data 
it will be reporting. If the Board believes that information provided 
by an employee is inaccurate, the Board shall advise the employee about 
the solely statistical purpose for which the data is being collected, 
the need for accuracy, the Board's recognition of the sensitivity of 
the information and the existence of procedures to prevent its 
unauthorized disclosure. If, thereafter, the employee declines to 
change the apparently inaccurate self identification, the Board must 
accept it.
    (c) Subject to applicable law, the information collected under 
paragraph (b) of this section shall be disclosed only in the form of 
gross statistics. The Board shall not collect or maintain any 
information on the race, national origin or sex of individual employees 
except in accordance with applicable law and when an automated data 
processing system is used in accordance with standards and requirements 
prescribed by the Commission to insure individual privacy and the 
separation of that information from personnel records.
    (d) The Board's system is subject to the following controls:
    (1) Only those categories of race and national origin prescribed by 
the Commission may be used;
    (2) Only the specific procedures for the collection and maintenance 
of data that are prescribed or approved by the Commission may be used.
    (e) The Board may use the data only in studies and analyses which 
contribute affirmatively to achieving the objectives of the Board's 
equal employment opportunity program. The Board shall not establish a 
quota for the

[[Page 18098]]

employment of persons on the basis of race, color, religion, sex, or 
national origin.
    (f) Data on disabilities shall also be collected by voluntary self-
identification. If an employee does not voluntarily provide the 
requested information, the Board shall advise the employee of the 
importance of the data and of the Board's obligation to report it. If 
an employee who has been appointed pursuant to a special Board program 
for hiring individuals with a disability still refuses to provide the 
requested information, the Board must identify the employee's 
disability based upon the records supporting the appointment. If any 
other employee still refuses to provide the requested information or 
provides information that the Board believes to be inaccurate, the 
Board should report the employee's disability status as unknown.
    (g) The Board shall report to the Commission on employment by race, 
national origin, sex and disability in the form and at such times as 
the Board and Commission shall agree.


Sec.  268.602  Reports to the Commission.

    (a) The Board shall report to the Commission information concerning 
pre-complaint counseling and the status, processing, and disposition of 
complaints under this part at such times and in such manner as the 
Board and Commission shall agree.
    (b) The Board shall advise the Commission whenever it is served 
with a Federal court complaint based upon a complaint that is pending 
on appeal at the Commission.
    (c) The Board shall submit annually for the review and approval of 
the Commission written equal employment opportunity plans of action. 
Plans shall be submitted in the format prescribed by the Commission and 
shall include, but not be limited to:
    (1) Provision for the establishment of training and education 
programs designed to provide maximum opportunity for employees to 
advance so as to perform at their highest potential;
    (2) Description of the qualifications, in terms of training and 
experience relating to equal employment opportunity, of the principal 
and operating officials concerned with administration of the Board's 
equal employment opportunity program; and
    (3) Description of the allocation of personnel and resources 
proposed by the Board to carry out its equal employment opportunity 
program.


Sec.  268.603  Voluntary settlement attempts.

    The Board shall make reasonable efforts to voluntarily settle 
complaints of discrimination as early as possible in, and throughout, 
the administrative processing of complaints, including the pre-
complaint counseling stage. Any settlement reached shall be in writing 
and signed by both parties and shall identify the claims resolved.


Sec.  268.604  Filing and computation of time.

    (a) All time periods in this part that are stated in terms of days 
are calendar days unless otherwise stated.
    (b) A document shall be deemed timely if it is received or 
postmarked before the expiration of the applicable filing period, or, 
in the absence of a legible postmark, if it is received by mail within 
five days of the expiration of the applicable filing period.
    (c) The time limits in this part are subject to waiver, estoppel 
and equitable tolling.
    (d) The first day counted shall be the day after the event from 
which the time period begins to run and the last day of the period 
shall be included, unless it falls on a Saturday, Sunday or Federal 
holiday, in which case the period shall be extended to include the next 
business day.


Sec.  268.605  Representation and official time.

    (a) At any stage in the processing of a complaint, including the 
counseling stage under Sec.  268.104, the complainant shall have the 
right to be accompanied, represented, and advised by a representative 
of complainant's choice.
    (b) If the complainant is an employee of the Board, he or she shall 
have a reasonable amount of official time, if otherwise on duty, to 
prepare the complaint and to respond to Board and EEOC requests for 
information. If the complainant is an employee of the Board and he 
designates another employee of the Board as his or her representative, 
the representative shall have a reasonable amount of official time, if 
otherwise on duty, to prepare the complaint and respond to Board and 
EEOC requests for information. The Board is not obligated to change 
work schedules, incur overtime wages, or pay travel expenses to 
facilitate the choice of a specific representative or to allow the 
complainant and representative to confer. The complainant and the 
representative, if employed by the Board and otherwise in a pay status, 
shall be on official time, regardless of their tour of duty, when their 
presence is authorized or required by the Board or the Commission 
during the investigation, informal adjustment, or hearing on the 
complaint.
    (c) In cases where the representation of a complainant or the Board 
would conflict with the official or collateral duties of the 
representative, the Commission or the Board may, after giving the 
representative an opportunity to respond, disqualify the 
representative.
    (d) Unless the complainant states otherwise in writing, after the 
Board has received written notice of the name, address and telephone 
number of a representative for the complainant, all official 
correspondence shall be with the representative with copies to the 
complainant. When the complainant designates an attorney as 
representative, service of all official correspondence shall be made on 
the attorney and the complainant, but time frames for receipt of 
material shall be computed from the time of receipt by the attorney. 
The complainant must serve all official correspondence on the 
designated representative of the Board.
    (e) The complainant shall at all times be responsible for 
proceeding with the complaint whether or not he or she has designated a 
representative.
    (f) Witnesses who are Board employees shall be in a duty status 
when their presence is authorized or required by Commission or Board 
officials in connection with a complaint.


Sec.  268.606  Joint processing and consolidation of complaints.

    Complaints of discrimination filed by two or more complainants 
consisting of substantially similar allegations of discrimination or 
relating to the same matter may be consolidated by the Board or the 
Commission for joint processing after appropriate notification to the 
parties. Two or more complaints of discrimination filed by the same 
complainant shall be consolidated by the Board for joint processing 
after appropriate notification to the complainant. When a complaint has 
been consolidated with one or more earlier filed complaints, the Board 
shall complete its investigation within the earlier of 180 days after 
the filing of the last complaint or 360 days after the filing of the 
original complaint, except that the complainant may request a hearing 
from an administrative judge on the consolidated complaints any time 
after 180 days from the date of the first filed complaint. 
Administrative judges or the Commission may, in their discretion, 
consolidate two or more complaints of discrimination filed by the same 
complainant.

[[Page 18099]]

Sec.  268.607  Delegation of authority.

    The Board of Governors may delegate authority under this part, to 
one or more designees.

Subpart H--Prohibition Against Discrimination in Board Programs and 
Activities Because of Physical or Mental Disability


Sec.  268.701  Purpose and application.

    (a) Purpose. The purpose of this subpart H is to prohibit 
discrimination on the basis of a disability in programs or activities 
conducted by the Board.
    (b) Application. (1) This subpart H applies to all programs and 
activities conducted by the Board. Such programs and activities 
include:
    (i) Holding open meetings of the Board or other meetings or public 
hearings at the Board's office in Washington, DC;
    (ii) Responding to inquiries, filing complaints, or applying for 
employment at the Board's office;
    (iii) Making available the Board's library facilities; and
    (iv) Any other lawful interaction with the Board or its staff in 
any official matter with people who are not employees of the Board.
    (2) This subpart H does not apply to Federal Reserve Banks or to 
financial institutions or other companies supervised or regulated by 
the Board.


Sec.  268.702  Definitions.

    For purposes of this subpart, the following definitions apply:
    (a) Auxiliary aids means services or devices that enable persons 
with impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Board. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with 
hearing aids, telecommunication devices for deaf persons (TDD's), 
interpreters, notetakers, written materials, and other similar services 
and devices.
    (b) Complete complaint means a written statement that contains the 
complainant's name and address and describes the Board's alleged 
discriminatory action in sufficient detail to inform the Board of the 
nature and date of the alleged violation. It shall be signed by the 
complainant or by someone authorized to do so on his or her behalf. 
Complaints filed on behalf of classes or third parties shall describe 
or identify (by name, if possible) the alleged victims of 
discrimination.
    (c) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    (d) Person with a disability means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as 
having such an impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic 
disfigurement, or anatomical loss affecting one of more of the 
following body systems: Neurological; musculoskeletal; special sense 
organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart 
disease, diabetes, mental retardation, emotional illness, and drug 
addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Board as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others 
toward such impairment; or
    (iii) Has none of the impairments defined in paragraph (d)(1) of 
this section but is treated by Board as having such an impairment.
    (e) Qualified person with a disability means--
    (1) With respect to any Board program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a person with a disability who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Board can demonstrate would result in a fundamental alteration in its 
nature; or
    (2) With respect to any other program or activity, a person with a 
disability who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or 
activity.
    (3) Qualified individual with a disability is defined for purposes 
of employment in Sec.  268.203 of this part, which is made applicable 
to this subpart by Sec.  268.705.


Sec.  268.703  Notice.

    The Board shall make available to employees, applicants for 
employment, participants, beneficiaries, and other interested persons 
information regarding the provisions of this subpart and its 
applicability to the programs and activities conducted by the Board, 
and make this information available to them in such manner as the Board 
finds necessary to apprise such persons of the protections against 
discrimination assured them by this subpart.


Sec.  268.704  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, on the basis 
of a disability, be excluded from participation in, be denied the 
benefits of, or otherwise be subjected to discrimination in any program 
or activity conducted by the Board.
    (b)(1) The Board, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of a disability:
    (i) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that provided to others;
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;

[[Page 18100]]

    (iv) Provide different or separate aid, benefits, or services to 
individuals with a disability or to any class of individuals with a 
disability than is provided to others unless such action is necessary 
to provide qualified individuals with a disability with aid, benefits, 
or services that are as effective as those provided to others;
    (v) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity 
enjoyed by others receiving the aid, benefit, or service.
    (2) The Board may not deny a qualified individual with a disability 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The Board may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration, the 
purpose or effect of which would:
    (i) Subject qualified individuals with a disability to 
discrimination on the basis of a disability; or
    (ii) Defeat or substantially impair accomplishment of the 
objectives of a program or activity with respect to individuals with a 
disability.
    (4) The Board may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would:
    (i) Exclude individuals with a disability from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the Board; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives or a program or activity with respect to individuals with a 
disability.
    (5) The Board, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with a disability to 
discrimination on the basis of a disability.
    (6) The Board may not administer a licensing or certification 
program in a manner that subjects qualified individuals with a 
disability to discrimination on the basis of a disability, nor may the 
Board establish requirements for the programs and activities of 
licensees or certified entities that subject qualified individuals with 
a disability to discrimination on the basis of a disability. However, 
the programs and activities of entities that are licensed or certified 
by the Board are not, themselves, covered by this subpart.
    (c) The exclusion of individuals who do not have a disability from 
the benefits of a program limited by Federal statute or Board order to 
individuals with a disability or the exclusion of a specific class of 
individuals with a disability from a program limited by Federal statute 
or Board order to a different class of individuals with a disability is 
not prohibited by this subpart.
    (d) The Board shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with a disability.


Sec.  268.705  Employment.

    No qualified individual with a disability shall, on the basis of a 
disability, be subjected to discrimination in employment under any 
program or activity conducted by the Board. The definitions, 
requirements and procedures of Sec.  268.203 of this part shall apply 
to discrimination in employment in federally conducted programs or 
activities.


Sec.  268.706  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec.  268.707 of this subpart, no 
qualified individual with a disability shall, because the Board's 
facilities are inaccessible to or unusable by individuals with a 
disability, be denied the benefits of, be excluded from participation 
in, or otherwise be subjected to discrimination under any program or 
activity conducted by the Board.


Sec.  268.707  Program accessibility: Existing facilities.

    (a) General. The Board shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with a disability. This 
paragraph (a) does not:
    (1) Necessarily require the Board to make each of its existing 
facilities accessible to and usable by individuals with a disability; 
or
    (2) Require the Board to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where the Board believes that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the Board has the burden of 
proving that compliance with this paragraph (a) would result in such 
alterations or burdens. The decision that compliance would result in 
such alterations or burdens shall be made by the Board of Governors or 
their designee after considering all Board resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or 
such burdens, the Board shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with a disability receive the benefits and 
services of the program or activity.
    (b) Methods. The Board may comply with the requirements of this 
subpart H through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to individuals 
with a disability, home visits, delivery of service at alternate 
accessible sites, alteration of existing facilities and construction of 
new facilities, use of accessible rolling stock, or any other methods 
that result in making its programs or activities readily accessible to 
and usable by individuals with a disability. The Board is not required 
to make structural changes in existing facilities where other methods 
are effective in achieving compliance with this section. In choosing 
among available methods for meeting the requirements of this section, 
the Board shall give priority to those methods that offer programs and 
activities to qualified individuals with a disability in the most 
integrated setting appropriate.
    (c) Time period for compliance. The Board shall comply with any 
obligations established under this section as expeditiously as 
possible.


Sec.  268.708  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Board shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with a disability.


Sec.  268.709  Communications.

    (a) The Board shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Board shall furnish appropriate auxiliary aids where 
necessary to afford an individual with a

[[Page 18101]]

disability an equal opportunity to participate in, and enjoy the 
benefits of, a program or activity conducted by the Board.
    (i) In determining what type of auxiliary aid is necessary, the 
Board shall give primary consideration to the requests of the 
individual with a disability.
    (ii) The Board need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the Board communicates with employees and others by 
telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The Board shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Board shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the Board to take any action that 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where the Board believes that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, the Board has the burden of 
proving that compliance with section 268.709 would result in such 
alterations or burdens. The determination that compliance would result 
in such alteration or burdens must be made by the Board of Governors or 
their designee after considering all Board resources available for use 
in the funding and operation of the conducted program or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action required to comply with this section 
would result in such an alteration or such burdens, the Board shall 
take any other action that would not result in such an alteration or 
such burdens but would nevertheless ensure that, to the maximum extent 
possible, individuals with a disability receive the benefits and 
services of the program or activity.


Sec.  268.710  Compliance procedures.

    (a) Applicability. Except as provided in paragraph (b) of this 
section, this section, rather than subpart B and Sec.  268.203 of this 
part, applies to all allegations of discrimination on the basis of a 
disability in programs or activities conducted by the Board.
    (b) Employment complaints. The Board shall process complaints 
alleging discrimination in employment on the basis of a disability in 
accordance with subparts A through G of this part.
    (c) Responsible official. The EEO Programs Director shall be 
responsible for coordinating implementation of this section.
    (d) Filing the complaint--(1) Who may file. Any person who believes 
that he or she has been subjected to discrimination prohibited by this 
subpart may, personally or by his or her authorized representative, 
file a complaint of discrimination with the EEO Programs Director.
    (2) Confidentiality. The EEO Programs Director shall not reveal the 
identity of any person submitting a complaint, except when authorized 
to do so in writing by the complainant, and except to the extent 
necessary to carry out the purposes of this subpart , including the 
conduct of any investigation, hearing, or proceeding under this 
subpart.
    (3) When to file. Complaints shall be filed within 180 days of the 
alleged act of discrimination. The EEO Programs Director may extend 
this time limit for good cause shown. For the purpose of determining 
when a complaint is timely filed under this paragraph (d), a complaint 
mailed to the Board shall be deemed filed on the date it is postmarked. 
Any other complaint shall be deemed filed on the date it is received by 
the Board.
    (4) How to file. Complaints may be delivered or mailed to the 
Administrative Governor, the Staff Director for Management, the EEO 
Programs Director, the Federal Women's Program Manager, the Hispanic 
Employment Program Coordinator, or the People with Disabilities Program 
Coordinator. Complaints should be sent to the EEO Programs Director, 
Board of Governors of the Federal Reserve System, 20th and C Street 
NW., Washington, DC 20551. If any Board official other than the EEO 
Programs Director receives a complaint, he or she shall forward the 
complaint to the EEO Programs Director.
    (e) Acceptance of complaint. (1) The EEO Programs Director shall 
accept a complete complaint that is filed in accordance with paragraph 
(d) of this section and over which the Board has jurisdiction. The EEO 
Programs Director shall notify the complainant of receipt and 
acceptance of the complaint.
    (2) If the EEO Programs Director receives a complaint that is not 
complete, he or she shall notify the complainant, within 30 days of 
receipt of the incomplete complaint, that additional information is 
needed. If the complainant fails to complete the complaint within 30 
days of receipt of this notice, the EEO Programs Director shall dismiss 
the complaint without prejudice.
    (3) If the EEO Programs Director receives a complaint over which 
the Board does not have jurisdiction, the EEO Programs Director shall 
notify the complainant and shall make reasonable efforts to refer the 
complaint to the appropriate government entity.
    (f) Investigation/conciliation. (1) Within 180 days of the receipt 
of a complete complaint, the EEO Programs Director shall complete the 
investigation of the complaint, attempt informal resolution of the 
complaint, and if no informal resolution is achieved, the EEO Programs 
Director shall forward the investigative report to the Staff Director 
for Management.
    (2) The EEO Programs Director may request Board employees to 
cooperate in the investigation and attempted resolution of complaints. 
Employees who are requested by the EEO Programs Director to participate 
in any investigation under this section shall do so as part of their 
official duties and during the course of regular duty hours.
    (3) The EEO Programs Director shall furnish the complainant with a 
copy of the investigative report promptly after completion of the 
investigation and provide the complainant with an opportunity for 
informal resolution of the complaint.
    (4) If a complaint is resolved informally, the terms of the 
agreement shall be reduced to writing and made a part of the complaint 
file, with a copy of the agreement provided to the complainant. The 
written agreement may include a finding on the issue of discrimination 
and shall describe any corrective action to which the complainant has 
agreed.
    (g) Letter of findings. (1) If an informal resolution of the 
complaint is not reached, the EEO Programs Director shall transmit the 
complaint file to the Staff Director for Management. The Staff Director 
for Management shall, within 180 days of the receipt of the complete 
complaint by the EEO Programs Director, notify the complainant of the 
results of the investigation in a letter sent by certified mail, return 
receipt requested, containing:

[[Page 18102]]

    (i) Findings of fact and conclusions of law;
    (ii) A description of a remedy for each violation found;
    (iii) A notice of right of the complainant to appeal the letter of 
findings under paragraph (k) of this section; and
    (iv) A notice of right of the complainant to request a hearing.
    (2) If the complainant does not file a notice of appeal or does not 
request a hearing within the times prescribed in paragraph (h)(1) and 
(j)(1) of this section, the EEO Programs Director shall certify that 
the letter of findings under this paragraph (g) is the final decision 
of the Board at the expiration of those times.
    (h) Filing an appeal. (1) Notice of appeal, with or without a 
request for hearing, shall be filed by the complainant with the EEO 
Programs Director within 30 days of receipt from the Staff Director for 
Management of the letter of findings required by paragraph (g) of this 
section.
    (2) If the complainant does not request a hearing, the EEO Programs 
Director shall notify the Board of Governors of the appeal by the 
complainant and that a decision must be made under paragraph (k) of 
this section.
    (i) Acceptance of appeal. The EEO Programs Director shall accept 
and process any timely appeal. A complainant may appeal to the 
Administrative Governor from a decision by the EEO Programs Director 
that an appeal is untimely. This appeal shall be filed within 15 
calendar days of receipt of the decision from the EEO Programs 
Director.
    (j) Hearing. (1) Notice of a request for a hearing, with or without 
a request for an appeal, shall be filed by the complainant with the EEO 
Programs Director within 30 days of receipt from the Staff Director for 
Management of the letter of findings required by paragraph (g) of this 
section. Upon a timely request for a hearing, the EEO Programs Director 
shall request that the Board of Governors, or its designee, appoint an 
administrative law judge to conduct the hearing. The administrative law 
judge shall issue a notice to the complainant and the Board specifying 
the date, time, and place of the scheduled hearing. The hearing shall 
be commenced no earlier than 15 calendar days after the notice is 
issued and no later than 60 days after the request for a hearing is 
filed, unless all parties agree to a different date.
    (2) The hearing, decision, and any administrative review thereof 
shall be conducted in conformity with 5 U.S.C. 554-557. The 
administrative law judge shall have the duty to conduct a fair hearing, 
to take all necessary actions to avoid delay, and to maintain order. He 
or she shall have all powers necessary to these ends, including (but 
not limited to) the power to:
    (i) Arrange and change the dates, times, and places of hearings and 
prehearing conferences and to issue notice thereof;
    (ii) Hold conferences to settle, simplify, or determine the issues 
in a hearing, or to consider other matters that may aid in the 
expeditious disposition of the hearing;
    (iii) Require parties to state their positions in writing with 
respect to the various issues in the hearing and to exchange such 
statements with all other parties;
    (iv) Examine witnesses and direct witnesses to testify;
    (v) Receive, rule on, exclude, or limit evidence;
    (vi) Rule on procedural items pending before him or her; and
    (vii) Take any action permitted to the administrative law judge as 
authorized by this subpart G or by the provisions of the Administrative 
Procedures Act (5 U.S.C. 554-557).
    (3) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this paragraph (j), but rules or principles 
designed to assure production of credible evidence and to subject 
testimony to cross-examination shall be applied by the administrative 
law judge wherever reasonably necessary. The administrative law judge 
may exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties, and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record.
    (4) The costs and expenses for the conduct of a hearing shall be 
allocated as follows:
    (i) Employees of the Board shall, upon the request of the 
administrative law judge, be made available to participate in the 
hearing and shall be on official duty status for this purpose. They 
shall not receive witness fees.
    (ii) Employees of other Federal agencies called to testify at a 
hearing, at the request of the administrative law judge and with the 
approval of the employing agency, shall be on official duty status 
during any absence from normal duties caused by their testimony, and 
shall not receive witness fees.
    (iii) The fees and expenses of other persons called to testify at a 
hearing shall be paid by the party requesting their appearance.
    (iv) The administrative law judge may require the Board to pay 
travel expenses necessary for the complainant to attend the hearing.
    (v) The Board shall pay the required expenses and charges for the 
administrative law judge and court reporter.
    (vi) All other expenses shall be paid by the parties incurring 
them.
    (5) The administrative law judge shall submit in writing 
recommended findings of fact, conclusions of law, and remedies to the 
complainant and the EEO Programs Director within 30 days, after the 
receipt of the hearing transcripts, or within 30 days after the 
conclusion of the hearing if no transcripts are made. This time limit 
may be extended with the permission of the EEO Programs Director.
    (6) Within15 calendar days after receipt of the recommended 
decision of the administrative law judge, the complainant may file 
exceptions to the recommended decision with the EEO Programs Director. 
On behalf of the Board, the EEO Programs Director may, within 15 
calendar days after receipt of the recommended decision of the 
administrative law judge, take exception to the recommended decision of 
the administrative law judge and shall notify the complainant in 
writing of the Board's exception. Thereafter, the complainant shall 
have 10 calendar days to file reply exceptions with the EEO Programs 
Director. The EEO Programs Director shall retain copies of the 
exceptions and replies to the Board's exception for consideration by 
the Board. After the expiration of the time to reply, the recommended 
decision shall be ripe for a decision under paragraph (k) of this 
section.
    (k) Decision. (1) The EEO Programs Director shall notify the Board 
of Governors when a complaint is ripe for decision under this paragraph 
(k). At the request of any member of the Board of Governors made within 
3 business days of such notice, the Board of Governors shall make the 
decision on the complaint. If no such request is made, the 
Administrative Governor, or the Staff Director for Management if he or 
she is delegated the authority to do so, shall make the decision on the 
complaint. The decision shall be made based on information in the 
investigative record and, if a hearing is held, on the hearing record. 
The decision shall be made within 60 days

[[Page 18103]]

of the receipt by the EEO Programs Director of the notice of appeal and 
investigative record pursuant to paragraph (h)(1) of this section or 60 
days following the end of the period for filing reply exceptions set 
forth in paragraph (j)(6) of this section, whichever is applicable. If 
the decision-maker under this paragraph (k) determines that additional 
information is needed from any party, the decision-maker shall request 
the information and provide the other party or parties an opportunity 
to respond to that information. The decision-maker shall have 60 days 
from receipt of the additional information to render the decision on 
the appeal. The decision-maker shall transmit the decision by letter to 
all parties. The decision shall set forth the findings, any remedial 
actions required, and the reasons for the decision. If the decision is 
based on a hearing record, the decision-maker shall consider the 
recommended decision of the administrative law judge and render a final 
decision based on the entire record. The decision-maker may also remand 
the hearing record to the administrative law judge for a fuller 
development of the record.
    (2) The Board shall take any action required under the terms of the 
decision promptly. The decision-maker may require periodic compliance 
reports specifying:
    (i) The manner in which compliance with the provisions of the 
decision has been achieved;
    (ii) The reasons any action required by the final Board decision 
has not been taken; and
    (iii) The steps being taken to ensure full compliance.
    (3) The decision-maker may retain responsibility for resolving 
disputes that arise between parties over interpretation of the final 
Board decision, or for specific adjudicatory decisions arising out of 
implementation.

    By order of the Board of Governors of the Federal Reserve 
System, April 9, 2003.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 03-9111 Filed 4-14-03; 8:45 am]
BILLING CODE 6210-01-P