The U.S. Equal Employment Opportunity Commission
Questions and Answers:
Final Federal Sector Complaint Processing Regulations
29 C.F.R. Part 1614
The civil rights laws enforced by the Commission, which prohibit
employment discrimination on the bases of race, color, religion,
national origin, sex, age and disability, as well as retaliation,
apply to employment discrimination by the federal government. While
the substantive protections for federal employees are the same as
those for all other workers, the procedures for resolving
complaints of federal employees differ from the procedures which
govern claims by employees in the private sector. The federal
sector procedural rule approved by the Commission updates and
improves the procedures which govern how the discrimination claims
of federal employees are processed administratively.
1. Why did the Commission issue these
regulations?
- The Commission issued these regulations as part its ongoing
effort to improve the effectiveness of its operations. The federal
sector program had come under criticism based on a number of
factors:
- The process was too long and contained too many layers of
review;
- Agencies could revise decisions of administrative judges
regarding whether the agency had violated the law, leading to
widespread perceptions of a process that was not impartial;
and
- The process led to the fragmentation of complaints, bogging
down the system and making it difficult for federal employees to
prove that they had been discriminated against.
2. Did the EEOC consult with its stakeholder
communities in determining how to improve its federal sector
operations?
- Throughout the entire development of the rule, the EEOC
consulted extensively with the full range of federal sector
stakeholders and incorporated many of their suggestions and
comments. From the beginning of the process, EEOC invited both
agency and employee representatives to meet and discuss the federal
sector process and their ideas for improving it.
- After approving a Notice of Proposed Rulemaking (NPRM), EEOC
circulated the proposed rule to all agencies for their comments and
then submitted it to OMB for its coordination and clearance
process.
- Following publication of the NPRM, EEOC received and carefully
considered over 60 public comments on the proposed rule.
- Based on those comments, EEOC approved a proposed final rule
which was also circulated to all the federal agencies before its
submission to OMB for additional coordination and clearance.
3. Who is affected by the changes?
- The federal sector complaint processing regulations apply to
federal employees and applicants for employment in the federal
government as well as to the agencies that employ and hire
them.
4. Has EEOC expanded the role of alternative dispute
resolution (ADR) programs in the federal sector
process?
- Consistent with its commitment to the use of ADR in its private
sector programs, EEOC will require agencies to establish or make
available an ADR program which will be available both during the
pre-complaint process and the formal complaint process. Agencies
will have substantial flexibility in how they structure their ADR
programs so long as they incorporate principles of confidentiality,
neutrality, voluntariness, and enforceability. ADR may function as
an alternative to counseling.
5. Will agencies continue to be able to reverse or
modify decisions issued by administrative judges?
- Under the previous rule, AJ's issued recommended decisions
regarding whether an agency violated the law which the agency was
then free to reverse or modify. While agencies won most hearings,
they reversed or modified the AJ decisions in about two-thirds of
the cases which they lost. The final regulation provides that AJ
decisions will continue to be submitted to the agencies for final
action. However, the agencies will not have the opportunity to
rewrite the AJ decisions. Rather, they will issue an order
providing only whether or not they will fully implement the AJ
decision. If they choose to not implement the AJ decision, they
must simultaneously file an appeal with the EEOC.
6. How much time will agencies have to issue final
orders?
- Agencies will have 40 days to determine whether or not to
implement the AJ decision and, if they choose not to implement the
decision, another 20 days to file their brief on appeal. This
corresponds to the 60 day period that agencies previously had to
review an AJ decision and issue their final decision.
7. Will an agency have to provide the complainant
with the relief ordered by the administrative judge if the agency
chooses not to implement the AJ decision and
appeals?
- If the AJ decision involved restoration of the complaining
party into a job, the agency must comply with the order pending the
appeal. The agency may refuse to return the individual to his or
her job if the agency determines that the individual's presence in
the workplace would be unduly disruptive. If this occurs, however,
the agency must provide pay and benefits until the appeal is
completed. The agency is not required to pay any other monetary
benefit ordered by the AJ pending the outcome of the appeal but
must pay interest on such sum if the complaining party ultimately
prevails.
8. What standard of review will EEOC apply on
appeal?
- On appeal, the EEOC will review legal issues and factual
findings by the agencies under a de novo standard while using a
substantial evidence standard to review AJ findings of fact. It is
appropriate to provide a deferential standard of review to the
factual findings by AJ's who are independent decision makers and
had the opportunity to directly evaluate the credibility of
witnesses.
9. How do the changes address the problem of the
fragmentation of cases?
- A significant problem in the current system arises from the
fragmentation of cases. Fragmentation -- breaking cases down into
their constituent parts and then processing the parts separately --
substantially adds to the number of cases and the overall burden in
the system. It also makes it more difficult to prove some cases,
such as harassment cases, which are dependent on a "critical mass"
of facts. The final regulation includes a number of provisions to
address this problem:
- Partial dismissals: The regulations
eliminate interlocutory appeals from partial dismissals. Instead,
the case will continue to be processed and appeals will be
preserved until the rest of the case is ready for appeal.
- No more remands: AJ's will no longer
remand issues to agencies for counseling or other processing. Once
a case is before an AJ the AJ is fully responsible for processing
it.
- Amendment of complaints: Complaining
parties will have greater rights to amend their complaints with
like and related claims and independent claims brought by the same
complaining party will be consolidated for processing so they will
be handled together.
- Spin off complaints: The rule adds a
provision providing for the dismissal of spin-off complaints which
are complaints about the processing of existing complaints. It
provides instead that complaints about existing complaints should
be brought up as part of the original complaint. OFO estimates that
there are about 6,000 spin-off complaints filed a year.
10. Are there changes to the class complaint
process?
- Although there are certainly instances of class-wide
discrimination in the federal government, under the prior rule only
a tiny number of class cases were brought within the administrative
system. Most class cases were either diverted into the federal
courts or they were simply not brought at all. The new rule
includes several reforms to the treatment of class actions which
will make it more feasible for class claims to be brought and
resolved in the administrative system.
- A class complainant may now move for class certification at any
reasonable point in the process, usually no later than the
conclusion of discovery. This recognizes that complaining parties
do not have access to discovery until they are before an AJ and
therefore may not have sufficient information when they file their
case to determine whether or not class issues are raised.
- AJ decisions regarding class certification will be treated the
same way as other AJ decisions. Agencies will take final action on
certification by issuing a final order, and, if it does not fully
implement the AJ decision, appealing to EEOC.
- AJ's will review class settlements under the same "fair and
reasonable" standard which federal judges use to review class
settlements.
11. Can agencies still dismiss complaints for
failure to accept a certified offer of full
relief?
- The regulation eliminates the provision which permitted
agencies to dismiss complaints for failure to accept a certified
offer of full relief. This provision had not been used very much
since the introduction of damages since short of a hearing it is
virtually impossible to determine when an offer of damages
constitutes an offer for full relief.
12. Has EEOC provided another mechanism to encourage
complainants to seriously consider settlement
offers?
- The regulations create a new offer of resolution procedure,
based on the offer of judgment rule in the Federal Rules of Civil
Procedure, to encourage settlement. Under this procedure, agencies
may make offers of resolution, which are settlement offers, to
complaining parties. If the complaining party does not accept the
offer and ultimately obtains no more relief than what was offered,
no attorney's fees or costs will be payable for work done after the
offer was not accepted.
13. Can parties still request reconsideration of an
EEOC appellate decision?
- Under the final rule, reconsideration of EEOC appellate
decisions will no longer be available as of right. Instead, EEOC
will exercise its discretion in determining whether to reconsider
its appellate decisions. This is similar to the process used by the
Merit Systems Protection Board.
14. Who will decide the amount of attorney's fees
when the complainant requests a hearing?
- AJ's will decide the amount of fees to be awarded to prevailing
complaining parties. There will be a strong presumption that
traditional lodestar analysis (hours reasonably expended multiplied
by a reasonable hourly rate) will determine the appropriate
fee.
15. Will attorney's fees be available for work
performed during the pre-complaint process?
- Fees will be available for legal work done before a complaint
is filed in the limited circumstance where a complaining party
prevails in a hearing, the agency chooses not to fully implement
the AJ decision, and the EEOC finds in favor of the complaining
party. This will provide an incentive to agencies to assess
carefully whether they will decline to fully implement an AJ
decision which is adverse to them. At the same time agencies and
complaining parties may include attorney's fees for pre-complaint
work in a settlement agreement.
16. When will the changes become
effective?
- The regulation will take effect on November 9, 1999, 120 days
after publication in the Federal Register. It will apply to pending
cases. Agencies will be required to have their ADR programs in
effect by January 1, 2000.
17. Will EEOC issue additional guidance to assist
the agencies and federal employees come into compliance with the
new regulation.
- EEOC will issue revisions to its Management Directive 110 to
assist both agencies and federal employees better understand their
rights and responsibilities.
This page was last modified on July 12, 1999.
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