Mr. Stephen
Llewellyn
Executive
Officer, Executive Secretariat
Equal
Employment
Dear Mr.
Llewellyn,
Enclosed are the comments of the Council of Federal EEO and Civil Rights Executives to the Equal Employment Opportunity Commission’s Notice of Proposed Rulemaking regarding the proposed revisions to the federal sector, complaint processing regulations.
We discussed the NPRM at our
1) 1614.102 (e). Add paragraph to 1614.102 indicating that EEOC will review agency programs for compliance, and the Chair may issue notices to agencies when non-compliance is found. EEOC intends to provide a mechanism for reviewing and seeking compliance from agencies that fail to comply, for example, with the requirements of MD-110, MD-715, and 1614. One suggestion is for the Chair to issue notices to agency heads and identify each non-compliant agency in the Office of Federal Operations’ (OFO) annual report on the Federal workforce.
RESPONSE: EEOC should specify the criteria it intends to use to ensure compliance. At a minimum, the EEOC Chair should share the draft notices/letters to agency heads with EEO Directors.
Before considering publishing a list of non-compliant agencies in OFO’s annual report on the Federal workforce, EEOC should define what constitutes compliance and what does not. Moreover, EEOC should give noncompliant agencies a limited timeframe to become compliant as an added incentive to avoid inclusion in the list published in the OFO’s annual report.
2) 1614.102(f). Allow agencies to deviate from the 1614 provisions to conduct pilot projects for processing complaints. Pilots would be subject to EEOC approval by vote of the Commissioners and would usually not be granted for more than 12 months.
RESPONSE: EEOC should limit these pilot projects to special circumstances – like employees who work on the decennial census or for other temporary employees. If these census employees used the regular process to file their discrimination complaints, most of them would have left the Census Bureau by the time the EEO investigators got around to investigate their complaints. Thus, an abridged process would be preferable. We also suggest that the determination regarding the length of these pilot programs be decided on a case-by-case basis, rather than arbitrarily as proposed.
EEOC must clarify how complaints in these pilot projects will be reported on the EEOC Form 462, or whether there will be an additional reporting requirement imposed upon agencies with pilot projects.
Pilot projects of this nature are unsuitable for permanent career employees. To do so would cause confusion when employees transfer from one federal agency to another. In addition, there would not be any consistency in decisions rendered across the Federal Government, and EEOC would lose the capability to ensure and monitor the way that discrimination complaints are processed across the federal sector.
3) 1614.103(b)(6). Add clarification that 1614 applies to discrimination complaints filed against GPO, except for complaints filed under the Rehabilitation Act.
RESPONSE: No objection
4) 1614.107(107(a)(5). Clarify that complaints alleging discrimination on proposals to take personnel actions should be dismissed, unless reprisal allegations were raised.
RESPONSE: We recommend against implementation of this proposal. When the word spreads around about this exception, everyone will allege reprisal regarding proposed personnel actions. Rather than helping agencies to reduce their case inventories, this will compound the problem and cause delays in the processing of future complaints.
5) 1614.108(g). Add paragraph requiring agencies that have not completed their investigations within 180 days (up to 360 days for amendments) to send a notice to complainants informing them that the investigation is not complete, when will it be completed, and that complainants have a right to request a hearing or file a lawsuit.
RESPONSE: We recommend that EEOC limit this recommendation to complainants who are not represented by an attorney.
6) 1614.109(g). Name section “Summary Judgment” instead of “Decision Without a Hearing.”
RESPONSE: No objection.
7) 1614.201(a). Add sentence showing that if complainants bypass the administrative process by filing notice of intent to sue with EEOC under the ADEA, they must file a suit no later than 2 years after the occurrence of the alleged unlawful practice, or if the alleged unlawful practice was willful, within 3 years of the occurrence of the practice.
RESPONSE: Provide examples to distinguish between intentional and unintentional practices. In addition, we suggest that EEOC treat class complaints the same way.
8) 1614.204(j). Make AJ’s decisions on the merits of a class complaint final – which an agency can implement or appeal.
RESPONSE: No objection.
9) 1614.403(f). Require that briefs in opposition to appeals be submitted to EEOC and served on the opposing party within 35 days of service of the statement or brief supporting the appeal – rather than the existing 30 days of receipt of the statement or brief supporting the appeal.
RESPONSE: No objection. EEOC should add language to 1614.403(d) to specifically require service of an appeal brief or statement upon the EEO Director of the agency, as well as upon EEOC.
10) 1614.403(g). Require agencies to submit appeal records and complaint files to EEOC electronically. Complainants would be encouraged, but not required, to submit appeals and other documentation electronically.
RESPONSE: Agencies and complainants should be treated the same. EEOC should encourage (not require) agencies to submit these documents electronically. At a minimum, allow three years for agencies to submit the budget documentation and to get them approved for purchasing the new hardware. In addition, allow provision that if budget requests have not been approved or they’ve been denied, to allow agencies to submit these records in paper format.
11) 1614.405(b). Expedite the processing of appeals of decisions to accept or dismiss class complaints (certification decisions), and provide for decisions within 90 days of receipt of the appeal.
RESPONSE: No objection.
12) 1614.405(c). Review section to state that appeal decision are final for purposes of filing a civil action in federal court, unless a timely request for reconsideration has been filed.
RESPONSE: No objection.
13) 1614.502(c). Change time frame for agencies to provide relief ordered from 60 days to 120 days. This ensures that EEO decisions are final before agencies have to provide relief.
RESPONSE: No objection.
14) 1614.504(c). Distinguish between appeals alleging breach of settlement agreements from those alleging breach of final decisions. EEOC may order reinstatement from the point processing ceased for settlement agreements.
RESPONSE: We suggest that EEOC devote separate paragraphs to each of these sections, for clarity’s sake.
15) Substitute the word “disability” for “handicap” throughout
1614 to make the language of the Rehabilitation Act consistent with that of the
RESPONSE: No objection.
Thanks for offering us the opportunity to comment on the NPRM. If you have any questions about this letter, you may contact us at (202) 482-8185 (Jorge) or at (202) 619-5157 (Delia).
Sincerely,
Jorge
E. Ponce & Delia L. Johnson
Co-Chairs
Council of Federal EEO
and Civil Rights Executives