[Federal Register Volume 77, Number 143 (Wednesday, July 25, 2012)]
[Rules and Regulations]
[Pages 43498-43506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18134]



29 CFR Part 1614

RIN Number 3046-AA73

Federal Sector Equal Employment Opportunity

AGENCY: Equal Employment Opportunity Commission.

ACTION: Final rule.


SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or 
``Commission'') is issuing this final rule to revise its regulations 
for processing equal employment opportunity complaints by federal 
sector employees and job applicants. The revisions implement those 
recommendations of the Commission's Federal Sector Workgroup which 
require regulatory changes. The revisions include: reaffirming the 
existing statutory requirement that agencies comply with EEOC 
regulations, Management Directives, and Bulletins; providing for EEOC 
notices to non-compliant agencies; permitting pilot projects for EEO 
complaint processing; requiring agencies to issue a notice of rights to 
complainants when the investigation will not be timely completed; 
requiring agencies to submit complaint files and appeals documents to 
EEOC in digital formats; and making administrative judge decisions on 
the merits of class complaints final with both parties having the right 
to appeal to EEOC. The Commission is engaged in further review of the 
Federal sector EEO complaint process in order to improve its quality 
and efficiency. The current rulemaking constitutes the Commission's 
initial step in that review. The Commission will consider additional 
reforms, including, but not limited to, regulatory changes.

DATES: Effective September 24, 2012.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel, Kathleen Oram, Senior Attorney, or Gary Hozempa, Senior 
Attorney, Office of Legal Counsel, 202-663-4640 (voice), 202-663-7026 
(TTY). (These are not toll free numbers.) This notice is also available 
in the following formats: Large print, braille, audio tape, and 
electronic file on computer disk. Requests for this notice in an 
alternative format should be made to EEOC's Publications Center at 1-
800-669-3362 (voice) or 1-800-800-3302 (TTY).



    EEOC enforces the statutes that prohibit workplace discrimination 
in the federal government. These statutes include: section 717 of Title 
VII of the Civil Rights Act of 1964, which prohibits discrimination 
against applicants and employees based on race, color, religion, sex, 
and national origin; section 501 of the Rehabilitation Act of 1973, 
which prohibits employment discrimination on the basis of disability; 
section 15 of the Age Discrimination in Employment Act of 1967, which 
prohibits employment discrimination on the basis of age; the Equal Pay 
Act of 1963, which prohibits sex-based wage discrimination; and the 
Genetic Information Nondiscrimination Act of 2008, which prohibits 
employment discrimination on the basis of genetic information. EEOC is 
responsible under these statutes for processing equal employment 
opportunity (EEO) complaints by Federal employees and applicants.
    The EEO complaint process is initiated when a federal employee or 
job applicant contacts an EEO counselor to allege discrimination. If 
the allegation is not resolved in counseling, the individual may file a 
formal EEO complaint with the employing agency and that agency 
investigates the complaint. At the conclusion of the investigation, the 
complainant may request a hearing before an EEOC administrative judge 
or a final decision by the agency. After the hearing or final decision, 
the complainant may appeal to EEOC. Complainants also have the right to 
sue the alleged discriminating agency in federal district court if they 
are not satisfied with the administrative resolution of their 
    In 2004, former EEOC Chair Cari M. Dominguez asked Commissioner 
Stuart J. Ishimaru to lead a workgroup to develop consensus 
recommendations from the Commissioners for improvements to the EEO 
complaint process. The Federal Sector Workgroup considered testimony 
and submissions from the November 12, 2002 Commission meeting on 
federal sector reform, draft staff proposals for federal sector reform, 
and numerous submissions from internal and external stakeholders with 
suggestions for improvements to the federal sector process. The 
Workgroup determined that it did not have internal consensus for large 
scale revision of the federal sector EEO complaint process at the time, 
but that there was agreement on several discrete changes to the 
existing regulations that would clarify or build on the improvements 
made by the last major revisions to 29 CFR Part 1614 in 1999. The EEOC 
plans to accompany this final rule with the issuance of additional 
guidance in Management Directive 110 and other program changes at EEOC. 
This final rule is part of an ongoing review by the Commission of the 
federal sector EEO complaint process in which the Commission is 
examining recommendations regarding the investigative function, 
including perceived conflicts of interest in the way investigations are 
conducted and alternatives to the current investigation process, and 
the hearings and appellate review process.
    A notice of proposed rulemaking (NPRM) was circulated to all 
agencies for comment pursuant to Executive Order 12067 and subsequently 
published in the Federal Register on December 21, 2009. 74 FR 67839 
(2009). The notice proposed changes to the Commission's federal sector 
EEO complaint processing regulations at 29 CFR Part 1614 to implement 
the recommendations of the Federal Sector Workgroup. It sought public 
comment on those proposals.
    The Commission received thirty-five public comments on the NPRM: 
fourteen comments from federal agencies; five comments from civil 
rights groups; five comments from unions and other groups; five 
comments from attorneys; and six comments from individuals. The 
Commission has carefully considered all of the comments and has made 
several changes to the NPRM in response to the comments. The comments 
on the NPRM and the changes made are discussed more fully below.

Agency Process

    The Workgroup considered many recommendations for improvement to

[[Page 43499]]

the parts of the federal sector EEO complaint process for which the 
agencies bear responsibility--counseling, investigations, and final 
actions. The Workgroup made a number of non-regulatory and regulatory 
recommendations to improve the agency process. This final rule contains 
the following changes to the agency EEO complaint process in part 1614.


    The final rule adds two new paragraphs to Sec.  1614.102. One 
paragraph, Sec.  1614.102(e), requires that agency EEO programs comply 
with part 1614 and the Management Directives and Bulletins issued by 
EEOC (hereinafter ``compliance proposal'') to carry out section 717 of 
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-
16, and indicates that the Commission will review programs for 
compliance. The final rule further provides that, as part of EEOC's 
compliance efforts, the Chair may issue notices to agencies when non-
compliance is found, and may publicly identify non-compliant agencies 
(hereinafter ``program review proposal''). With these provisions, the 
Commission intends to re-emphasize all agencies' obligations to comply 
with EEOC's ``rules, regulations, orders, and instructions,'' as 
required by section 717 of Title VII, 42 U.S.C 2000e-16(b), and to 
provide some additional mechanisms for reviewing and seeking compliance 
from agencies that fail to comply with the requirements of Part 1614, 
Management Directive 110, Management Directive 715, and Management 
Bulletin 100-1, or any Management Directives or Bulletins that may be 
issued in the future to carry out section 717 of Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C 2000e-16.
    The majority of comments, including those submitted by several 
agencies, supported both proposals, with more than a third of them 
recommending that EEOC adopt stronger provisions, such as making 
reports of non-compliance public and providing for sanctions against 
non-complying agencies. A handful of agencies objected to the 
compliance proposal, arguing that it is duplicative of Title VII's 
requirement that agencies comply with EEOC guidance and instructions, 
and that, if enacted, the compliance proposal will give regulatory 
effect to EEOC Management Directives and Bulletins without notice and 
comment, in violation of the Administrative Procedure Act (APA). With 
respect to the program review proposal, several agencies requested that 
the regulation specifically provide for agency opportunity to comply or 
provide an explanation for non-compliance before EEOC issues a notice 
of non-compliance.
    EEOC has slightly modified the proposed language of the NPRM to 
remove a reference to the Chair identifying non-compliant agencies in 
the Annual Report on the Federal Workforce, and has replaced it with a 
more general provision stating that, if the Office of Federal 
Operation's (OFO) attempts at compliance are not successful, the Chair 
may publicly identify non-compliant agencies. The compliance proposal 
derives from section 717(b) of Title VII, 42 U.S.C. 2000e-16(b), which 
requires an agency to comply with EEOC rules and directives pertaining 
to federal sector EEO programs (``the Equal Employment Opportunity 
Commission shall have authority to enforce the provisions of subsection 
(a) of this paragraph through appropriate remedies * * * and shall 
issue such rules, regulations, orders and instructions as it deems 
necessary and appropriate to carry out its responsibilities under this 
section * * *. The head of each such department, agency, or unit shall 
comply with such rules, regulations, orders, and instructions * * *).'' 
Similarly, Executive Order 12067 authorizes EEOC to develop rules, 
policies, and guidelines to administer the federal sector EEO program 
and requires agencies to comply with those directives. While the 
compliance proposal, as some agencies noted, reiterates the authority 
given to EEOC under Title VII, it has been EEOC's experience that not 
all agencies understand that they are required to comply not only with 
the rules set forth in 29 CFR part 1614, but also with the compulsory 
instructions in EEOC's Directives and Bulletins, such as MD-110. 
Therefore, the compliance proposal is necessary to underscore both 
EEOC's authority over the federal sector EEO program and an agency's 
duty to maintain its EEO program consistent with EEOC's mandatory 
    Agency concerns that the compliance proposal will deny them an 
opportunity to comment upon orders and procedures that EEOC may issue 
in the future are misplaced. Under Executive Order 12067, before EEOC 
issues a new rule, directive, or bulletin about the federal sector EEO 
program, it must first afford each federal agency an opportunity to 
comment, advise and consult. As a result, any new rule, directive, or 
bulletin contemplated by EEOC will go through this interagency 
coordination process and therefore no EEOC rule, directive, or 
bulletin, will be issued without agency notice and comment.
    With respect to those agency objections that specifically rely on 
the APA, the National Employment Lawyers Association (NELA), in its 
comments, argues that ``the relationship between the EEOC and federal 
agencies is not governed by the APA, which allows a challenge to agency 
action only by a `person suffering legal wrong.' '' See 5 U.S.C. 702. 
Under the APA, a ``person'' includes entities ``other than agencies.'' 
5 U.S.C. 551(2). Therefore, NELA argues, an agency is not an entity 
afforded the protection an individual enjoys under the APA. Even 
assuming that an agency lacks standing under the APA to complain about 
APA protections, EO 12067 provides agencies the notice and comment 
protections about which the agencies expressed concerns in their 
comments. As noted above, agencies will have the opportunity to review 
and comment upon future EEOC rules, directives, and bulletins before 
they are issued.
    EEOC's intent is to assist agencies in perfecting their EEO 
programs and to persuade agencies whose EEO programs fall short of EEOC 
standards to correct any noted deficiencies. There will not be a single 
process for determining non-compliance. Each situation will depend upon 
the nature of the alleged non-compliance, how the non-compliance comes 
to EEOC's attention, and how the agency responds to EEOC's inquiries 
and attempts to obtain compliance. Therefore, it is not feasible to 
explain how EEOC will determine in every instance whether an agency is 
in compliance with 29 CFR part 1614 or the mandatory language in EEOC's 
Directives and Bulletins. In all instances, however, before the Chair 
issues an agency a notice of non-compliance, the agency will be given a 
reasonable opportunity to justify its non-compliance or persuade EEOC 
that it is in compliance with EEOC's regulation or the mandatory 
sections of EEOC's Directives and Bulletins. As appropriate, EEOC may 
also make the Chair's notice of non-compliance public. The program 
review procedures will be set out in MD-110.

Pilot Projects

    The second new paragraph in Sec.  1614.102 permits EEOC to grant 
agencies variances from particular provisions of part 1614 to conduct 
pilot projects for processing complaints in ways other than those 
prescribed in part 1614. The NPRM provided that pilots would be subject 
to EEOC approval by vote of the Commissioners and that approval would 
usually not be granted

[[Page 43500]]

for more than 12 months. The Commission supports pilot projects because 
they can provide helpful data for future recommendations regarding 
changes to the federal sector EEO complaint process.
    All of the agencies and several other commenters supported the 
pilot projects proposal. In the NPRM, the Commission specifically 
requested comments on the proposed 12 month maximum timeframe for pilot 
projects. Comments on the appropriate timeframe for pilot projects were 
mixed, with some noting that a year is sufficient, and others arguing 
that a two year timeframe would be preferable. The majority of 
commenters on the timeframe recommended that EEOC permit extensions of 
whatever timeframe is adopted. In addition, several comments suggested 
that agencies be permitted to keep pilot projects in place until all 
complaints that have entered the pilot project are fully processed. 
About a third of the commenters expressed concerns about the pilot 
project proposal. Some recommended that pilot projects be limited to 
the investigative stage only. Some suggested that pilot projects should 
be entirely voluntary with an opt-out feature. Others recommended that 
EEOC include in the regulation criteria that will ensure the protection 
of complainants' rights in pilot projects. Finally, some commenters 
noted that federal employee unions should be involved in the 
development of agency pilot projects.
    We have amended Sec.  1614.102(f) to extend the maximum timeframe 
for variances from the requirements of part 1614 for pilot projects to 
24 months. We believe that the proposed 12 month maximum timeframe was 
too short for some pilot projects to provide meaningful data for 
analysis of alternatives to the part 1614 process. We note, however, 
that the timeframe is a maximum only, not a minimum, and that agencies 
may develop pilot projects that last less than 24 months as 
appropriate. We have also added a provision giving the Director of the 
Office of Federal Operations authority to grant, for good cause shown, 
requests for extensions of variances for up to 12 months. We note as 
well that the 24 month maximum timeframe for pilot projects will permit 
agencies to accept complaints into pilot projects for up to 24 months, 
and that agencies may conclude processing those complaints in the pilot 
project for a reasonable period thereafter.
    We have also added a sentence to the regulation stating that pilot 
projects must require that complainants knowingly and voluntarily opt-
in to the pilot project. It was always the Commission's intention that 
complainants must affirmatively choose to participate in pilot 
projects, and that, if they do not opt-in, their complaints would be 
processed under the part 1614 process. We note that the Commission 
plans to issue guidance in its Management Directive 110 on additional 
criteria that the Commission will consider for pilot projects, e.g., 
requirements that such projects are not a subterfuge for diminishing 
complainants' rights, that plans for publicizing the pilot among agency 
employees should be detailed, that criteria for evaluating the success 
of the pilot should be adequate, that interim evaluations will be done, 
that the proposed length of the pilot is justified, and that 
anticipated start and end dates are reasonable. Guidance will also be 
included on the timeframes for pilot projects and requests for 
extensions. Agencies may need to consult or negotiate with their unions 
about pilot project proposals and, if that is the case, they must do so 
before submitting proposals to EEOC for approval.
    The Commission believes that it is preferable that EEOC provide 
oversight of pilot projects rather than having agencies secure 
independent authority to operate pilot projects that deviate from the 
requirements of part 1614, as has occurred in the past. Commission 
approval of pilot projects will ensure that agency management does not 
have unfettered discretion and that pilots will not disadvantage 

Notice of Rights

    The final rule adds a new paragraph to Sec.  1614.108 Investigation 
of complaints, that requires agencies that have not completed an 
investigation within the 180-day time limit for investigations (or up 
to 360 days if the complaint has been amended) to send a notice to the 
complainant indicating that the investigation is not complete, 
providing the date by which it will be completed, and explaining that 
the complainant has the right to request a hearing or file a lawsuit.
    The majority of agencies that commented opposed the notice 
proposal, arguing variously that it is unnecessary, duplicative, and 
would not add value to the complaint process. A few agencies, however, 
agreed with the proposal. All other commenters supported the notice 
proposal, with half of them recommending that it should include 
stronger provisions, including sanctions against agencies that fail to 
complete an investigation in 180 days.
    The Commission is retaining the notice requirement in the final 
rule. The Commission believes that it is important that agencies issue 
a notice to complainants about their rights in the EEO process at the 
conclusion of the 180-day investigation period so that they can make 
informed decisions about whether to wait for completion of the 
investigation, request an immediate hearing, or file a lawsuit. In 
addition, the Commission believes that requiring such a notice may 
shorten delays in agency investigations by providing an incentive for 
agencies to timely complete their investigations. The notice must be in 
writing, must describe the hearing process and include a simple 
explanation of discovery and burdens of proof, and must contain an 
estimated investigation completion date. The Commission further notes 
that a full range of sanctions are available should an agency not 
complete its investigation within the required time period. See, Royal 
v. Dept. of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 
2009); Reading v. Dept. of Veterans Affairs, EEOC Appeal No. 07A40125 
(October 12, 2006); Talahongva-Adams v. Dept. of the Interior, EEOC 
Appeal No. 0120081694 (May 28, 2010). Nor does a complainant waive his 
right to seek sanctions when an agency fails to complete its 
investigation within the required timeframe simply because a notice is 
issued by the agency. Sanctions may be warranted even if the 
complainant elects not to request a hearing but instead waits for the 
completion of the investigation, unless a specific extension of time 
has been sought from, and granted by, the complainant, or for other 
good cause shown.

Rehabilitation Act Coverage

    In the NPRM, the Commission proposed to amend Sec.  1614.103(b)(6) 
to comport with the coverage provisions of the Rehabilitation Act and 
state that part 1614 applies to EEO complaints against the Government 
Printing Office, except for complaints under the Rehabilitation Act. We 
received only two comments on the proposal, both favorable. The final 
rule contains this revision.


    EEOC proposed in the NPRM to amend Sec.  1614.107(a)(5) to clarify 
that complaints alleging discrimination in proposals to take personnel 
actions or other preliminary steps to taking personnel actions should 
be dismissed unless the complaint alleges that the proposal or 
preliminary step is retaliatory. After explaining its rationale for 
this change, EEOC also discussed

[[Page 43501]]

alternative language that had been suggested by an agency during the 
E.O. 12067 interagency coordination. The alternative language provided 
that complaints alleging discrimination regarding a proposal to take a 
personnel action, or other preliminary step to taking a personnel 
action, shall be dismissed ``except that with regard to a claim of 
retaliation, allegations of severe or repeated threats of adverse 
action may state a claim of a hostile work environment that is not 
subject to dismissal on such basis.''
    The majority of comments supported EEOC's proposal. Non-agency 
comments were overwhelmingly supportive, and a handful of them 
specifically rejected the alternative discussed in the preamble. The 
Leadership Conference on Civil and Human Rights (LCCHR), for example, 
argued that the alternative has no basis in law and that there is no 
plausible rationale for requiring a different standard for federal 
employees. Agency comments were mixed, with some supporting EEOC's 
proposal, several supporting the alternative, and others simply 
criticizing EEOC's proposal without mentioning the alternative. The 
agencies opposing EEOC's proposal generally argued that the change 
would encourage premature complaints.
    EEOC agrees with the comments favoring its proposed change and has 
retained it in the final rule. The change to Sec.  1614.107(a)(5) is 
consistent with EEOC policy guidance on retaliation as applied in the 
private sector. See 2 EEOC Compliance Manual Sec.  8-II.D.3 (1998) 
(``[A]ny adverse treatment that is based on a retaliatory motive and is 
reasonably likely to deter the charging party or others from engaging 
in protected activity'' is prohibited retaliation). Moreover, the 
amendment codifies EEOC appellate decision precedent in the federal 
sector. See, e.g., Lorina D. Goodwin v. F. Whitten Peters, Secretary, 
Department of the Air Force, EEOC Appeal Nos. 01991301 & 01A01796, 2000 
WL 1616337 (October 18, 2000) (holding that the complainant's challenge 
of a proposed dismissal as being retaliatory stated a claim because 
``proposed actions can be considered adverse actions in the reprisal 
context if they are reasonably likely to deter protected activity'').
    A number of commenters, such as the National Treasury Employees 
Union (NTEU), point out that it is possible that a supervisor might 
place an employee on a performance improvement plan or propose an 
adverse action against an employee with the intent of deterring that 
employee from filing or proceeding with an EEO complaint. And it is not 
difficult to imagine that the employee could be deterred. A proposed 
personnel action is not an empty gesture which an employee can ignore 
without fear of consequences. For example, when a manager proposes a 
removal for purported performance deficiencies, any employee not 
wanting to be fired 30 days later must answer the proposal and attempt 
to refute the agency's allegations of specific performance 
deficiencies. See generally 5 CFR 432.105. Defending against a proposal 
can be a daunting task, even if the allegations are untrue. Knowing 
this, an unscrupulous manager who has been accused of employment 
discrimination could initiate a trumped-up proposed removal in order to 
cause the employee to drop the complaint and avoid termination. If this 
occurs, the manager would have engaged in prohibited retaliation under 
EEOC guidance and precedent, and under the Supreme Court's holding in 
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 
(2006) (Title VII's anti-retaliation provision protects individuals 
from a retaliatory action that a reasonable person would have found 
``materially adverse,'' which in the retaliation context means that the 
action might have deterred a reasonable person from opposing 
discrimination or participating in the EEO complaint process). 
Therefore, EEOC believes it is vitally important that an employee be 
able to challenge as retaliatory a preliminary step to a personnel 
action or a proposed action that is reasonably likely to deter that 
employee from engaging in protected activity.
    This revision to the dismissal provision does not change the 
standard for stating a claim of retaliation under Title VII. Agencies 
should dismiss retaliation complaints filed by complainants who have 
not engaged in prior EEO activity or opposed unlawful employment 
practices. Also, while agencies would no longer be able to dismiss a 
claim alleging that a proposal or preliminary step was retaliatory 
under 29 CFR 1614.107(a)(5), they would still evaluate the claim under 
the failure to state a claim dismissal provision in 29 CFR 
1614.107(a)(1). Agencies should dismiss complaints of allegedly 
retaliatory proposals and other preliminary steps under 29 CFR 
1614.107(a)(1) if the alleged retaliatory actions are not materially 
adverse: that is, if the alleged retaliatory proposal or preliminary 
step would not dissuade a reasonable worker in the complainant's 
circumstances from engaging in protected EEO activity.\1\

    \1\ Additionally, under 29 CFR 1614.105(a)(1), an aggrieved 
person is required to contact a counselor within 45 days of the date 
of the alleged discriminatory action unless that time period is 
extended pursuant to 29 CFR 1614.105(a)(2). Failure to contact a 
counselor within 45 days may result in dismissal under 29 CFR 
1614.107(a)(2). An aggrieved person who wants to challenge a 
proposed or preliminary action, whether alone or in conjunction with 
a final action, should be mindful of the applicable time limits. In 
order to ensure that a retaliation claim based on a proposal or 
preliminary step will not be dismissed as untimely, the aggrieved 
person should contact a counselor within 45 days of that preliminary 
step or proposal.

    Not all preliminary steps or proposals are materially adverse. As 
noted in Burlington Northern, ``[a]n employee's decision to report 
discriminatory behavior cannot immunize that employee from those petty 
slights or minor annoyances that often take place at work and that all 
employees experience.'' 548 U.S. at 68; see also 2 EEOC Compliance 
Manual section 8-II.D.3 (1998) (``[P]etty slights and trivial 
annoyances are not actionable, as they are not likely to deter 
protected activity.''). Therefore, the challenged preliminary step or 
proposed action must be likely to deter a reasonable employee from 
protected activity. Given all the circumstances, a threatened letter of 
warning may not deter a reasonable complainant from filing a complaint, 
whereas a proposed suspension may have a deterring effect. ``Context 
matters * * * for an `act that would be immaterial in some situations 
is material in others.' '' Burlington Northern, 548 U.S. at 69 (quoting 
Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 661 (7th Cir. 
    The alternative language discussed in the preamble of the NPRM 
regarding 29 CFR 1614.107(a)(5) limits actionable complaints alleging 
that a proposal or preliminary step is retaliatory to those containing 
allegations of ``severe or repeated threats of adverse action'' that 
``state a claim of a hostile work environment.'' The commenters opposed 
to the alternative, such as NTEU, Leadership Conference on Civil and 
Human Rights, and the NAACP Legal Defense & Educational Fund (LDEF), 
were concerned that the burden of proof necessary to establish a 
hostile work environment is greater than that necessary to show that a 
reasonable employee has been deterred from engaging in protected 
activity, especially in the context of threatened actions. These 
commenters noted that, under the alternative language, retaliation 
involving only a single or a few threats would not rise to the 
pervasive level necessary to establish a hostile environment and thus 
would be permitted unless the actions are sufficiently severe. They 
expressed concern that only a threat pertaining to

[[Page 43502]]

an ultimate employment action, such as a removal, would suffice to 
establish severity under the alternative standard and thus state an 
actionable claim for retaliation. Under EEOC's proposal, on the other 
hand, the inquiry focuses more on the context in which the threat is 
made and the effect that threat would have on a reasonable employee. It 
is highly unlikely that a threat to transfer an employee's assigned 
duties without loss of pay or position, as occurred in Burlington 
Northern, would rise to the requisite level of pervasiveness or 
severity under the alternative approach, but it could reasonably deter 
protected activity and thus state a claim under EEOC's proposal.
    The Commission believes the concerns expressed in the comments 
about the alternative proposal are well founded. Burlington Northern 
states that the anti-retaliation provisions of Title VII do not mirror 
the anti-discrimination provisions and that this difference must be 
given weight when interpreting the statute. 548 U.S. 53, at 62-63. As 
discussed in Martinelli v. Penn Millers Ins. Co., 269 Fed.Appx. 226, 
230, 2008 WL 723973 (3d Cir. March 18, 2008), after Burlington 
Northern, an employee claiming ``retaliation by workplace harassment'' 
is ``no longer required to show that the harassment was severe or 
pervasive * * *.'' See also Thomas v. Atmos Energy Corp., 223 Fed.Appx. 
369, 376 n.2, 2007 WL 866709 (5th Cir. March 21, 2007) (``Burlington 
Northern set a lower threshold for finding an adverse employment 
action'' and thus the employee need not show that he was retaliated 
against with respect to an ``ultimate employment action'' such as a 
removal). As noted by the LDEF, the alternative language ignores this 
distinction between the anti-retaliation and anti-discrimination 
provisions and therefore would require a higher threshold both to state 
a claim and to prevail on claims of retaliation. Additionally, the 
alternative does not account for threats or actions not related to the 
workplace, which also is inconsistent with the Court's ruling in 
Burlington Northern. 548 U.S. 53, at 63.
    Adopting the alternative language would impose a higher threshold 
upon federal employees than exists for employees in the private sector 
and would therefore permit a federal agency to take actions against its 
employees that would be retaliatory if committed by a private employer. 
It also would depart from EEOC's own federal sector precedent regarding 
retaliation and threatened actions. In short, there is no legitimate 
reason for requiring that only federal employees be subject to the more 
stringent ``severe or pervasive'' standard applicable to hostile work 
environment claims. The alternative approach would make it harder for 
federal employees to prove retaliation than their private-sector 
counterparts and would result in significantly less enforcement of the 
anti-retaliation protections afforded federal employees.

EEOC Process

Electronic Filing

    In the NPRM, the Commission proposed to require that agencies 
submit appellate records and complaint files to the Commission 
electronically. The NPRM provided that complainants would be 
encouraged, but not required, to submit appeals and other documentation 
electronically. The majority of commenters expressed concerns about the 
electronic filing proposal. The agencies noted that they are concerned 
about confidentiality of the records and the security of whatever 
system EEOC employs, noting that all documents would have to be 
encrypted. They also expressed concerns about costs and the need to 
budget for the requirement. A handful of other commenters supported the 
proposal, while others noted that EEOC needs to study security 
measures, and that the Commission should ensure that there is no 
adverse impact on complainants who continue to submit paper documents. 
Several commenters suggested that EEOC model its electronic filing 
system on the system used by the Merit Systems Protection Board, which 
permits electronic filing after a party has registered, but does not 
require it.
    We wish to reassure agencies and the public that EEOC will comply 
with all federal electronic information security requirements with 
respect to accepting digital records. EEOC has launched a pilot Web 
site portal electronic filing system that is available to all agencies. 
In addition, EEOC currently accepts digital complaint files from a 
number of agencies. Some agencies place scanned files in a secure 
location on their own Web sites that EEOC accesses with a password. 
Other agencies submit password-protected CDs containing digital 
complaint files to EEOC. We have revised the regulation to require the 
submission of digital records rather than electronic filing. This will 
allow agencies and others to use the EEOC's portal (when available) or 
any of the other means described above to submit digital appeals, 
complaint files, and other filings. The final rule requires that 
agencies submit these records in an acceptable format to the Office of 
Federal Operations, absent a showing of good cause why the agency 
cannot do so. We do not anticipate that cost will constitute good cause 
in most cases since the cost of scanning equipment is relatively 
inexpensive and the staff time required to scan documents will probably 
be the same or less than the staff time required to make paper 
photocopies of documents. Complainants will be encouraged, but not 
required, to submit digital appellate records to the Office of Federal 
Operations. EEOC will provide more detailed guidance regarding 
acceptable digital formats and what constitutes a showing of good cause 
in Management Directive 110.

Filing Date for Opposition Briefs

    In the NPRM, the Commission proposed to revise Sec.  1614.403(f) to 
require that briefs in opposition to appeals be submitted to the 
Commission and served on the opposing party within 35 days of service 
of the statement or brief supporting the appeal (as opposed to the 
existing requirement that they be filed within 30 days of receipt of 
the statement or brief supporting the appeal.) We requested additional 
comments on irradiation-based mail delay experience. Nearly all of the 
agencies that commented reported that they often have significant 
delays in receiving mail because of the irradiation process. They noted 
that delays can range from ten days to three or four weeks. If the 
deadline for filing opposition briefs is tied to service, rather than 
receipt, of the supporting brief, agencies experiencing irradiation 
mail delays will have fewer days to prepare and submit opposition 
briefs. Because of the frequency and length of irradiation delays, the 
Commission can anticipate many motions for extension or apparently 
untimely briefs with consequent increase in the number of motions for 
default, which would unnecessarily burden the parties and Commission 
staff. Accordingly, we have removed the proposed amendment from this 
final rule, and the current regulation providing that statements or 
briefs in opposition must be filed within 30 days of receipt of the 
statement or brief supporting the appeal will remain in effect.


    The final rule amends Sec.  1614.405(b) (redesignated as Sec.  
1614.405(c)) to provide that decisions under the section are final for 
purposes of filing a civil action in federal court, unless a timely 
request for reconsideration is filed by a party to the case. We 
received only two comments on this proposal, both favorable.

[[Page 43503]]


    In the NPRM, the Commission proposed to revise Sec.  1614.504(c) to 
differentiate the remedies available for breach of settlement 
agreements and breach of final decisions. We received only a handful of 
comments on the proposal; most were positive. The final rule retains 
the provision. For breach of a settlement, the regulation continues to 
state that the Commission may order compliance or reinstatement of the 
complaint for further processing from the point processing ceased, 
whereas for breach of a final decision, the regulation states that 
compliance is the only remedy. The Commission is making final its 
proposed editorial changes to Sec. Sec.  1614.402, 1614.405(a), and 
1614.409 to correct errors and omissions.

Class Complaints

    The Workgroup carefully considered the class complaint process and 
made a number of recommendations to improve its effectiveness. As a 
result of those recommendations, in the NPRM the Commission proposed to 
revise the class complaint regulations to make an administrative 
judge's decision on the merits of a class complaint a final decision, 
which the agency can fully implement or appeal in its final action. 
Currently, the administrative judge issues final decisions on the 
acceptance of class complaints, and the merits of individual 
complaints, but only issues recommended findings and conclusions on the 
merits of class complaints, which the agency may accept, reject, or 
modify in its final decision. Previously, in a 1999 rulemaking, the 
Commission changed the administrative judge's recommended decisions on 
the merits of individual complaints and on the acceptance of class 
complaints to final decisions that must be fully implemented or 
appealed by the agency in its final action. With the current change, 
all administrative judge decisions will be final decisions which the 
agency can either implement in full or appeal. If the agency does not 
fully implement the administrative judge's decision, it only has to 
appeal the parts of the decision that it wishes to contest. For 
example, if an administrative judge finds that the agency discriminated 
against the class and awards reinstatement and backpay, and if the 
agency disagrees with the award of reinstatement, the agency's appeal 
need only challenge the reinstatement award.
    The Commission also proposed in the NPRM to provide for expedited 
processing of appeals of decisions to accept or dismiss class 
complaints (certification decisions) to shorten the class certification 
process. Specifically, the Commission proposed to amend Sec.  1614.405 
to provide that decisions on appeals of decisions to accept or dismiss 
class complaints will be issued within 90 days of receipt of the 
appeal. We received uniform comments supporting both class complaint 
process proposals. Therefore, the final rule retains both provisions.
    We note that, with respect to the class proposals, several 
commenters recommended additional changes to the class complaint 
process involving issues such as: Holding individual complaints in 
abeyance and subsuming individual complaints, permitting complainants 
to opt-out of a class complaint, changing the requirement that agencies 
notify class members of certification before appeal, mandating pre-
certification discovery, and ensuring that certified cases are promptly 
assigned and processed. While these other comments fall outside of the 
scope of the changes proposed in the NPRM, the Commission will consider 
them for a future rulemaking. In addition, some of the recommendations 
for additional changes not proposed in the NPRM are not regulatory, and 
the Commission will separately consider whether any of them should be 
implemented independently from the final rule.

Other Changes

    The final rule amends Sec.  1614.109(g) to rename the section 
``Summary Judgment'' instead of ``Decision without a hearing.'' This 
change is intended to convey more clearly the Commission's policy that 
the standards of Rule 56 of the Federal Rules of Civil Procedure 
governing summary judgments apply in the EEOC hearings process, except 
insofar as Commission decision precedent has held or holds otherwise. 
This change is not intended, however, to alter existing Commission 
policy or practice; Commission decisions on the summary judgment 
process will continue to apply.
    The final rule includes an editorial change to Sec.  1614.204(f)(1) 
to correct the omission of the word ``shall.''
    The final rule also amends Sec.  1614.302(c)(2) to correct an 
erroneous cross reference. The section now refers to Sec.  
    Finally, the Commission proposed in the NPRM to revise Sec.  
1614.502(c) to change the time frame within which agencies must provide 
the relief ordered from 60 days to 120 days. The regulation currently 
requires an agency to pay an administrative complainant who prevails 
before the EEOC within 60 days of EEOC's final decision. Since 1991, 
however, complainants have had up to 90 days to file suit in United 
States district court if they are dissatisfied with EEOC's decision.
    Public comments were mixed on this proposal. While a couple of 
agencies supported it, individual commenters strongly opposed it, 
recommending that relief be provided immediately, and that remedial 
orders should be binding regardless of whether suit is filed. Other 
commenters suggested that EEOC should allow complainants to certify 
that they will not file suit, and then require agencies to provide 
relief within 30 or 60 days of certification. The Commission is 
sympathetic to the commenters' concerns about receiving relief in a 
timely fashion, but also recognizes that it is difficult in many 
instances for agencies to provide relief within the current 60 day 
timeframe. More importantly, the Commission believes that agencies 
should not be required to provide relief before the expiration of the 
complainants' 90-day right to file suit period. In the final rule, the 
Commission is adopting the proposal to extend the timeframe for 
providing relief to 120 days.

Regulatory Procedures

Executive Orders 13563 and 12866

    This final rule has been drafted and reviewed in accordance with 
Executive Order (``E.O.'') 12866, ``Regulatory Planning and Review,'' 
as recently reaffirmed and supplemented by E.O. 13563, ``Improving 
Regulation and Regulatory Review.'' This final rule is a ``significant 
regulatory action'' under E.O. 12866, section 3(f)(1), and accordingly 
was submitted to the Office of Management and Budget for interagency 
review. In promulgating this final rule, the Commission has adhered to 
the regulatory philosophy and applicable principles set forth in E.O. 
13563, which directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its cost 
(recognizing that some benefits and costs are difficult to quantify); 
tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives; and select, in 
choosing among alternative regulatory approaches, those approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety, and other advantages; distributive impacts; 
and equity).
    Based on the information currently available, we anticipate that 
most of the changes involve no or negligible cost and will benefit the 
agencies or users of the process by clarifying obligations,

[[Page 43504]]

correcting cross references, providing earlier appellate review, and 
providing quicker decisions from EEOC. Most agencies, for example, 
already comply with Part 1614 and EEOC's Management Directives and 
Bulletins, as required by section 717(b) of Title VII of the Civil 
Rights Act of 1964, as amended. Therefore, continued compliance will 
not require additional expenditures. The compliance proposal may 
actually reduce costs, e.g., to the extent that the agency's compliance 
obligation is clarified, it may save the agencies, complainants, and 
EEOC the time and costs of attempting to secure agency compliance.
    With respect to monitoring compliance, EEOC already engages in 
compliance activities with its Directives and Bulletins. Therefore, no 
new personnel will need to be hired and EEOC's compliance efforts will 
not have to be increased. The only new provision is that the EEOC Chair 
may issue a notice of non-compliance that may be made public. The 
clarification of an agency's compliance responsibilities and the 
possibility of a public notice will eliminate some non-compliance and 
shorten other instances of non-compliance.
    The cost that comes with most of the remaining changes is 
relatively small, and all costs are justified by the expected benefit 
and would only be borne by the federal government. Requiring an agency 
to notify the complainant when it will not complete an investigation in 
the required timeframe will have minimal cost but will provide an 
incentive for completing investigations timely while protecting the 
complainant's rights. Electronic filing will reduce costs and time. The 
cost of pilot projects will depend upon what the individual agency 
proposes and is likely to be a savings; the benefit of such projects is 
that potential changes to the process will be tested before they are 
implemented government-wide.

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. Sec. 605(b), enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not 
have a significant economic impact on a substantial number of small 
entities, because it applies exclusively to employees and agencies of 
the federal government. For this reason, a regulatory flexibility 
analysis is not required.

Unfunded Mandates Reform Act of 1995

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

Paperwork Reduction Act

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

Congressional Review Act

    This action pertains to agency management, personnel and 
organization and does not substantially affect the rights or 
obligations of non-agency parties and, accordingly, is not a ``rule'' 
as that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 29 CFR Part 1614

    Administrative practice and procedure, Age discrimination, Equal 
employment opportunity, Government employees, Individuals with 
disabilities, Race discrimination, Religious discrimination, Sex 

    For the Commission.

    Dated: July 18, 2012.
Jacqueline A. Berrien,

    Accordingly, for the reasons set forth in the preamble, the Equal 
Employment Opportunity Commission hereby amends chapter XIV of title 29 
of the Code of Federal Regulations as follows:


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

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

2. In Sec.  1614.102, add paragraphs (e) and (f) to read as follows:

Sec.  1614.102  Agency program.

* * * * *
    (e) Agency programs shall comply with this Part and the Management 
Directives and Bulletins that the Commission issues. The Commission 
will review agency programs from time to time to ascertain whether they 
are in compliance. If an agency program is found not to be in 
compliance, efforts shall be undertaken to obtain compliance. If those 
efforts are not successful, the Chair may issue a notice to the head of 
any federal agency whose programs are not in compliance and publicly 
identify each non-compliant agency.
    (f) Unless prohibited by law or executive order, the Commission, in 
its discretion and for good cause shown, may grant agencies prospective 
variances from the complaint processing procedures prescribed in this 
Part. Variances will permit agencies to conduct pilot projects of 
proposed changes to the complaint processing requirements of this Part 
that may later be made permanent through regulatory change. Agencies 
requesting variances must identify the specific section(s) of this Part 
from which they wish to deviate and exactly what they propose to do 
instead, explain the expected benefit and expected effect on the 
process of the proposed pilot project, indicate the proposed duration 
of the pilot project, and discuss the method by which they intend to 
evaluate the success of the pilot project. Variances will not be 
granted for individual cases and will usually not be granted for more 
than 24 months. The Director of the Office of Federal Operations for 
good cause shown may grant requests for extensions of variances for up 
to an additional 12 months. Pilot projects must require that 
participants knowingly and voluntarily opt-in to the pilot project. 
Requests for variances should be addressed to the Director, Office of 
Federal Operations.

3. In Sec.  1614.103, revise paragraph (b)(6) to read as follows:

Sec.  1614.103  Complaints of discrimination covered by this part.

* * * * *
    (b) * * *
    (6) The Government Printing Office except for complaints under the 
Rehabilitation Act; and
* * * * *

4. In Sec.  1614.107, revise paragraph (a)(5) to read as follows:

Sec.  1614.107  Dismissals of complaints.

    (a) * * *
    (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, unless the complaint alleges that the proposal or 
preliminary step is retaliatory;
* * * * *

[[Page 43505]]

5. Amend Sec.  1614.108 by redesignating paragraph (g) as paragraph 
(h), and adding a new paragraph (g) to read as follows:

Sec.  1614.108  Investigation of complaints.

* * * * *
    (g) If the agency does not send the notice required in paragraph 
(f) of this section within the applicable time limits, it shall, within 
those same time limits, issue a written notice to the complainant 
informing the complainant that it has been unable to complete its 
investigation within the time limits required by Sec.  1614.108(f) and 
estimating a date by which the investigation will be completed. 
Further, the notice must explain that if the complainant does not want 
to wait until the agency completes the investigation, he or she may 
request a hearing in accordance with paragraph (h) of this section, or 
file a civil action in an appropriate United States District Court in 
accordance with Sec.  1614.407(b). Such notice shall contain 
information about the hearing procedures.
* * * * *

Sec.  1614.109  [Amended]

6. In Sec.  1614.109, revise the paragraph (g) subject heading to read 
``Summary Judgment''.

7. Amend Sec.  1614.204:
a. In paragraph (f)(1), by removing the words ``administrative judge 
notify'' from the first sentence and adding in their place the words 
``administrative judge shall notify'';
b. By revising paragraphs (i), (j), and (k);
c. In paragraph (l)(2), by removing the words ``final decision'' and 
adding in their place the words ``final order'';
d. In paragraph (l)(3), by removing the words ``final decision'' in the 
first and next to last sentences and adding in their place the words 
``final order'' and
e. By revising the third sentence in paragraph (l)(3).
    The revisions read as follows:

Sec.  1614.204  Class complaints.

* * * * *
    (i) Decisions: The administrative judge shall transmit to the 
agency and class agent a decision on the complaint, including findings, 
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. 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 order 
appropriate relief.
    (j) Agency final action. (1) Within 60 days of receipt of the 
administrative judge's decision on the complaint, the agency shall take 
final action by issuing a final order. The final order shall notify the 
class agent whether or not the agency will fully implement the decision 
of the administrative judge and shall contain notice of the class 
agent'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 agency 
shall simultaneously file an appeal in accordance with Sec.  1614.403 
and append a copy of the appeal to the final order. A copy of EEOC Form 
573 shall be attached to the final order.
    (2) If an agency does not issue a final order within 60 days of 
receipt of the administrative judge's decision, then the decision of 
the administrative judge shall become the final action of the agency.
    (3) A final order on a class complaint shall, subject to subpart D 
of this part, be binding on all members of the class and the agency.
    (k) Notification of final action: The agency shall notify class 
members of the final action 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 agency 
within 10 days of the transmittal of the final action to the agent.
    (l) * * *
    (3) * * * 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 class-wide discrimination was found 
in the final order.

Sec.  1614.302  [Amended]

8. In Sec.  1614.302, in paragraph (c)(2), remove the words ``Sec.  
1614.107(d)'' wherever they appear and add in their place the words 
``Sec.  1614.107(a)(4)''.

Sec.  1614.401  [Amended]

9. In Sec.  1614.401, in paragraph (c), remove the words ``a class 
agent may appeal a final decision on a class complaint'' and add in 
their place the words ``a class agent may appeal an agency's final 
action or an agency may appeal an administrative judge's decision on a 
class complaint''.

10. In Sec.  1614.402, add a sentence to paragraph (a) before the last 
sentence to read as follows:

Sec.  1614.402  Time for appeals to the Commission.

    (a) * * * Appeals described in Sec.  1614.401(d) must be filed 
within 30 days of receipt of the final decision of the agency, the 
arbitrator or the Federal Labor Relations Authority.
* * * * *

11. In Sec.  1614.403, revise the first sentence of paragraph (a), and 
add paragraph (g) to read as follows:

Sec.  1614.403  How to appeal.

    (a) The complainant, agency, agent, grievant or individual class 
claimant (hereinafter appellant) must file an appeal with the Director, 
Office of Federal Operations, Equal Employment Opportunity Commission, 
at P.O. Box 77960, Washington, DC 20013, or electronically, or by 
personal delivery or facsimile. * * *
* * * * *
    (g) Agencies are required to submit appeals, complaint files, and 
other filings to the Office of Federal Operations in a digital format 
acceptable to the Commission, absent a showing of good cause why an 
agency cannot submit digital records. Appellants are encouraged, but 
not required, to submit digital appeals and supporting documentation to 
the Office of Federal Operations in a format acceptable to the 

12. Amend Sec.  1614.405 by revising the second sentence of paragraph 
(a), redesignating paragraph (b) as paragraph (c), adding a new 
paragraph (b), and revising the first sentence of newly redesignated 
paragraph (c) introductory text to read as follows:

Sec.  1614.405  Decisions on appeals.

    (a) * * * The Commission shall dismiss appeals in accordance with 
Sec. Sec.  1614.107, 1614.403(c) and 1614.409. * * *
    (b) The Office of Federal Operations, on behalf of the Commission, 
shall issue decisions on appeals of decisions to accept or dismiss a 
class complaint issued pursuant to Sec.  1614.204(d)(7) within 90 days 
of receipt of the appeal.
    (c) A decision issued under paragraph (a) of this section is final 
within the meaning of Sec.  1614.407 unless a timely request for 
reconsideration is filed by a party to the case. * * *

13. In Sec.  1614.409, revise the first sentence to read as follows:

Sec.  1614.409  Effect of filing civil action.

    Filing a civil action under Sec.  1614.407 or Sec.  1614.408 shall 

[[Page 43506]]

Commission processing of the appeal. * * *

Sec.  1614.502  [Amended]

14. In Sec.  1614.502, amend the last sentence of paragraph (c) by 
removing the words ``60 days'' and adding in their place add the words 
``120 days''.

15. In Sec.  1614.504, revise the second sentence of paragraph (c) to 
read as follows:

Sec.  1614.504  Compliance with settlement agreements and final action.

* * * * *
    (c) * * * If the Commission determines that the agency is not in 
compliance with a decision or settlement agreement, and the 
noncompliance is not attributable to acts or conduct of the 
complainant, it may order such compliance with the decision or 
settlement agreement, or, alternatively, for a settlement agreement, it 
may order that the complaint be reinstated for further processing from 
the point processing ceased. * * *

[FR Doc. 2012-18134 Filed 7-24-12; 8:45 am]