[Federal Register Volume 78, Number 171 (Wednesday, September 4, 2013)]
[Proposed Rules]
[Pages 54434-54436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21486]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 300, 315, 335, 410, 537, and 900

RIN 3206-AM77


Nondiscrimination Provisions

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is proposing to 
update various nondiscrimination provisions appearing in title 5, Code 
of Federal Regulations, to provide greater consistency and reflect 
current law.

DATES: Comments must be received on or before November 4, 2013.

ADDRESSES: Send or deliver comments to U.S. Office of Personnel 
Management, Office of Diversity & Inclusion, 1900 E Street NW., 
Washington, DC 20415; email to [email protected]; or fax to 
(202) 606-6042. Comments may also be sent through the Federal 
eRulemaking Portal at http://www.regulations.gov. All submissions 
received through the Portal must include the agency name and docket 
number or the Regulation Identifier Number (RIN) for this rulemaking. 
Please specify the section number for each comment.

FOR FURTHER INFORMATION CONTACT: Contact Sharon Wong by telephone at 
(202) 606-7140; by TTY at 1-800-877-8339; by fax at (202) 606-6042; or 
by email at [email protected].

SUPPLEMENTARY INFORMATION: Executive Order 13563 directs agencies to 
promote ``retrospective analysis of rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them in accordance with what has been 
learned.'' Pursuant to that direction and OPM's plan for conducting 
retrospective review (see http://www.opm.gov/Open/Resources/RetrospectiveRegReview.pdf), OPM has been reviewing a number of 
existing regulations to determine whether they should be changed or 
eliminated.
    Among the regulations OPM has decided to review are those that 
contain nondiscrimination provisions. OPM chose these regulations for 
retrospective review to further respond to a separate instruction 
issued by President Obama in a June 17, 2009, Memorandum on Federal 
Benefits and Nondiscrimination. That memorandum directed OPM to issue 
guidance ``regarding compliance with, and implementation of, the civil 
service laws, rules, and regulations, including 5 U.S.C. 2302(b)(10), 
which make it unlawful to discriminate against Federal employees or 
applicants for Federal employment on the basis of factors not related 
to job performance.'' See http://www.whitehouse.gov/the-press-office/memorandum-heads-executive-departments-and-agencies-federal-benefits-and-non-discri.
    Our review revealed that the nondiscrimination provisions are 
inconsistently worded and most have not been updated to reflect recent 
legal developments, including enactment of the Genetic Information 
Nondiscrimination Act of 2008 (GINA), Pub. L. 110-233, which prohibits 
discrimination on the basis of genetic information. Accordingly, we are 
issuing these proposed regulations to update the nondiscrimination 
provisions to reflect current law and to

[[Page 54435]]

make them consistent, to the greatest extent possible.
    Some of the nondiscrimination provisions reflect statutory 
prohibitions on discrimination that arise out of the civil service laws 
codified at title 5, United States Code, and OPM's authority to enforce 
the merit system principles. Others were promulgated to reflect the 
provisions of Title VII of the Civil Rights Act of 1964, as amended (42 
U.S.C. 2000e, et seq.), the Rehabilitation Act of 1973, as amended (29 
U.S.C. 701 et seq.), and the Age Discrimination in Employment Act of 
1967, as amended (ADEA) (29 U.S.C. 621-634). As a result, we are 
adopting two formulations of the nondiscrimination language. For those 
grounded in Title VII of the Civil Rights Act, the Rehabilitation Act, 
the ADEA, and the GINA, the provisions will reflect the statutory 
prohibitions on discrimination on the basis of race, color, religion, 
sex (including pregnancy and gender identity), national origin, age (as 
defined by the Age Discrimination in Employment Act of 1967, as 
amended), disability, genetic information and retaliation for 
exercising rights under the statutes enumerated above, where 
retaliation rights are available. For those grounded in the civil 
service laws, the provisions will reflect the statutory prohibitions 
against discrimination on those bases (5 U.S.C. 2302(b)(1)(A)-(D)), as 
well as prohibitions against discrimination on the basis of marital 
status (5 U.S.C. 2302(b)(1)(E)); political affiliation (id.), and 
sexual orientation, labor organization affiliation or non-affiliation, 
status as a parent, or any other non-merit-based factor (E.O. 13087; 
E.O. 13152; 5 U.S.C. 2302(b)(10)); and retaliation for exercising 
rights under the statutes enumerated above, where retaliation rights 
are available. (5 U.S.C. 2302(b)(9)(A)-(B)).
    Other provisions in our existing regulations are grounded in other 
specific legal authorities (such as our Federal Equal Opportunity 
Employment Program regulations at 5 CFR part 720 and our regulations 
implementing the Notification and Federal Employee Antidiscrimination 
and Retaliation Act of 2002 at 5 CFR part 724). We have concluded that 
the nondiscrimination provisions currently appearing in those 
regulations appropriately reflect the scope of the laws that they are 
implementing.
    We believe that having uniform nondiscrimination provisions, to the 
extent permitted by law, will clarify the protections afforded to 
individuals under law and negate any confusion that might be caused by 
seemingly conflicting provisions. Also, where appropriate, we are 
updating the authority citations for the regulations to reflect a 
complete list of the statutory provisions pursuant to which the 
regulations have been issued.

Executive Order 13563 and Executive Order 12866

    The Office of Management and Budget has reviewed this rule in 
accordance with E.O. 13563 and 12866.

Regulatory Flexibility Act

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities because they 
would apply only to Federal agencies and employees.

List of Subjects in 5 CFR Parts 300, 315, 335, 410, 537, and 900

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

U.S. Office of Personnel Management.
Elaine Kaplan,
Acting Director.
    Accordingly, OPM is proposing to amend 5 CFR chapter I, as follows:

PART 300--EMPLOYMENT (GENERAL)

0
1. Revise the authority citation for part 300 to read as follows:

    Authority: 5 U.S.C. 552, 2301, 2302, 3301, and 3302; E.O. 10577, 
3 CFR 1954-1958 Comp., page 218, unless otherwise noted.

    Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 
7204, and 7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803, E.O. 
13087; and E.O. 13152.
    Secs. 300.401 through 300.408 also issued under 5 U.S.C. 
1302(c).
    Secs. 300.501 through 300.507 also issued under 5 U.S.C. 
1103(a)(5).
    Sec. 300.603 also issued under 5 U.S.C. 1104.

0
2. Revise Sec.  300.102(c) to read as follows:


Sec.  300.102  Policy.

* * * * *
    (c) Be developed and used without discrimination on the basis of 
race, color, religion, sex (including pregnancy and gender identity), 
national origin, age (as defined by the Age Discrimination in 
Employment Act of 1967, as amended), disability, genetic information, 
marital status, political affiliation, sexual orientation, labor 
organization affiliation or nonaffiliation, status as a parent, or any 
other non-merit-based factor, or retaliation for exercising rights with 
respect to the categories enumerated above, where retaliation rights 
are available.
* * * * *
0
3. Revise Sec.  300.103(c) to read as follows:


Sec.  300.103  Basic requirements.

* * * * *
    (c) Equal employment opportunity. An employment practice must not 
discriminate on the basis of race, color, religion, sex (including 
pregnancy and gender identity), national origin, age (as defined by the 
Age Discrimination in Employment Act of 1967, as amended), disability, 
genetic information, marital status, political affiliation, sexual 
orientation, labor organization affiliation or nonaffiliation, status 
as a parent, or any other non-merit-based factor, or retaliation for 
exercising rights with respect to the categories enumerated above, 
where retaliation rights are available. Employee selection procedures 
shall meet the standards established by the ``Uniform Guidelines on 
Employee Selection Procedures.''
0
4. Revise Sec.  300.104(c)(1) to read as follows:


Sec.  300.104  Appeals, grievances and complaints.

* * * * *
    (c) Complaints and grievances to an agency. (1) A candidate may 
file a complaint with an agency when he or she believes that an 
employment practice that was applied to him or her and that is 
administered by the agency discriminates against him or her on the 
basis of race, color, religion, sex, national origin, or age (as 
defined by the Age Discrimination in Employment Act of 1967, as 
amended). The complaint must be filed and processed in accordance with 
the agency EEO or grievance procedures, as appropriate.
* * * * *

PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0
5. Revise the authority citation for part 315 to read as follows:

    Authority: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O. 
10577, 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; and 
E.O. 13162.

    Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 
3652.
    Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104.
    Sec. 315.603 also issued under 5 U.S.C. 8151.
    Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp. 
p.111.
    Sec. 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 
Comp. p. 303.
    Sec. 315.607 also issued under 22 U.S.C. 2506.

[[Page 54436]]

    Sec. 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp. p. 
293.
    Sec. 315.610 also issued under 5 U.S.C. 3304(c).
    Sec. 315.611 also issued under 5 U.S.C. 3304(f).
    Sec. 315.612 also issued under E.O. 13473.
    Sec. 315.708 also issued under E.O.13318, 3 CFR, 2004 Comp. p. 
265.
    Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp. p. 
229.
    Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 
1978 Comp. p. 264.

0
6. Revise Sec.  315.806(d) to read as follows:


Sec.  315.806  Appeal rights to the Merit Systems Protection Board.

* * * * *
    (d) An employee may appeal to the Board under this section a 
termination that the employee alleges was based on discrimination 
because of race, color, religion, sex, national origin, age (as defined 
by the Age Discrimination in Employment Act of 1967, as amended), or 
disability. An appeal alleging a discriminatory termination may be 
filed under this subsection only if such discrimination is raised in 
addition to one of the issues stated in paragraph (b) or (c) of this 
section.

PART 335--PROMOTION AND INTERNAL PLACEMENT

0
7. Revise the authority citation for part 335 to read as follows:

    Authority: 5 U.S.C. 2301, 2302, 3301, 3302, 3330; E.O. 10577, 
E.O. 11478, 3 CFR 1966-1970 Comp., page 803, unless otherwise noted, 
E.O. 13087; and E.O. 13152, 3 CFR 1954-58 Comp., p. 218; 5 U.S.C. 
3304(f), and Pub. L. 106-117.

0
8. Revise Sec.  335.103(b)(1) to read as follows:


Sec.  335.103  Agency promotion programs.

* * * * *
    (b) Merit promotion requirements--(1) Requirement 1. Each agency 
must establish procedures for promoting employees that are based on 
merit and are available in writing to candidates. Agencies must list 
appropriate exceptions, including those required by law or regulation, 
as specified in paragraph (c) of this section. Actions under a 
promotion plan--whether identification, qualification, evaluation, or 
selection of candidates--must be made without regard to race, color, 
religion, sex (including pregnancy and gender identity), national 
origin, age (as defined by the Age Discrimination in Employment Act of 
1967, as amended), disability, genetic information, marital status, 
political affiliation, sexual orientation, labor organization 
affiliation or nonaffiliation, status as a parent, or any other non-
merit-based factor, unless specifically designated by statute as a 
factor that must be taken into consideration when awarding such 
benefits, or retaliation for exercising rights with respect to the 
categories enumerated above, where retaliation rights are available, 
and must be based solely on job-related criteria.
* * * * *

PART 410--TRAINING

0
9. Revise the authority citation for part 410 to read as follows:

    Authority: 5 U.S.C. 1103(c), 2301, 2302, 4101, et seq.; E.O. 
11348, 3 CFR, 1967 Comp., p. 275, E.O. 11478, 3 CFR 1966-1970 Comp., 
page 803, unless otherwise noted, E.O. 13087; and E.O. 13152.

0
10. Revise Sec.  410.302(a)(1) to read as follows:


Sec.  410.302  Responsibility of the head of an agency.

    (a) Specific responsibilities. (1) The head of each agency must 
prescribe procedures as are necessary to ensure that the selection of 
employees for training is made without regard to race, color, religion, 
sex (including pregnancy and gender identity), national origin, age (as 
defined by the Age Discrimination in Employment Act of 1967, as 
amended), disability, genetic information, marital status, political 
affiliation, sexual orientation, labor organization affiliation or 
nonaffiliation, status as parent, or any other non-merit-based factor, 
unless specifically designated by statute as a factor that must be 
taken into consideration when awarding such benefits, or retaliation 
for exercising rights with respect to the categories enumerated above, 
where retaliation rights are available, and with proper regard for 
their privacy and constitutional rights as provided by merit system 
principles set forth in 5 U.S.C. 2301(b)(2).
* * * * *

PART 537--REPAYMENT OF STUDENT LOANS

0
11. Revise the authority citation for part 537 to read as follows:

    Authority: 5 U.S.C. 2301, 2302, and 5379(g); E.O. 11478, 3 CFR 
1966-1970 Comp., page 803, unless otherwise noted, E.O. 13087; and 
E.O. 13152.

0
12. Revise Sec.  537.105(d) to read as follows:


Sec.  537.105  Criteria for payment.

* * * * *
    (d) Selection. When selecting employees (or job candidates) to 
receive student loan repayment benefits, agencies must ensure that 
benefits are awarded without regard to race, color, religion, sex 
(including pregnancy and gender identity), national origin, age (as 
defined by the Age Discrimination in Employment Act of 1967, as 
amended), disability, genetic information, marital status, political 
affiliation, sexual orientation, labor affiliation or nonaffiliation, 
status as a parent, or any other non-merit-based factor, unless 
specifically designated by statute as a factor that must be taken into 
consideration when awarding such benefits, or retaliation for 
exercising rights with respect to the categories enumerated above, 
where retaliation rights are available.

PART 900--INTERGOVERNMENTAL PERSONNEL ACT PROGRAMS

Subpart F--Standards for a Merit System of Personnel Administration

0
13. Revise the authority citation for part 900, subpart F, to read as 
follows:

    Authority: 42 U.S.C. 4728, 4763; E.O. 11589, 3 CFR part 557 
(1971-75 Compilation); 5 U.S.C. 2301, 2302, E.O. 11478, 3 CFR 1966-
1970 Comp., page 803, unless otherwise noted, E.O. 13087; and E.O. 
13152.

0
14. Revise Sec.  900.603(e) to read as follows:


Sec.  900.603  Standards for a merit system of personnel 
administration.

* * * * *
    (e) Assuring fair treatment of applicants and employees in all 
aspects of personnel administration without regard to race, color, 
religion, sex (including pregnancy and gender identity), national 
origin, age (as defined by the Age Discrimination in Employment Act of 
1967, as amended), disability, genetic information, marital status, 
political affiliation, sexual orientation, status as parent, labor 
organization affiliation or nonaffiliation in accordance with Chapter 
71 of Title V, or any other non-merit-based factor, or retaliation for 
exercising rights with respect to the categories enumerated above, 
where retaliation rights are available, and with proper regard for 
their privacy and constitutional rights as citizens. This ``fair 
treatment'' principle includes compliance with the Federal equal 
employment opportunity and nondiscrimination laws.
* * * * *
[FR Doc. 2013-21486 Filed 9-3-13; 8:45 am]
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