EEOC Issues Long-Awaited Final Rule on Bias Complaints Against Federal Agencies

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

In a recent Law360 article, the publication of the final rule revising the federal sector Equal Employment Opportunity Commission (EEOC) complaint process was announced. The revised rule, published in the Federal Register on July 25, 2012, updates how the EEOC processes complaints of discrimination by federal sector agency employees and applicants. The rule, which is located at 29 CFR Part 1614 (“Federal Sector Employment Opportunity”), also changes class proceedings. Click here for Questions and Answers on the rule.

What is the Federal Sector EEOC Complaint Process?

29 CFR Part 1614 governs the process for filing and adjudicating complaints of employment discrimination filed by federal employees and applicants for jobs with select federal agencies. (It doesn’t apply to private sector employers, their employees, or applicants or to state or local governments, their employees, and applicants.) Part 1614 also directs how these federal agencies must administer their internal equal employment opportunity programs. Federal executive agencies and a few other federal entities, such as the U.S. Postal Service, the Tennessee Valley Authority, and the Smithsonian Institution, must comply with the rules and procedures set forth in Part 1614.

What is the Impact of the Final Rule?

Basically, the final rule contains key revisions to the following six main areas:

  • The EEOC’s authority to issue notices to agencies when non-compliance is found and not corrected;
  • The agencies’ ability to seek approval from the EEOC to conduct pilot projects in which the complaint processing procedures vary from the requirements of Part 1614;
  • Dismissal of a complaint that alleges that a proposal or preliminary step to taking a personnel action is discriminatory, unless the complainant alleges that the proposal is retaliatory;
  • Provision of an estimated date of completion and reminder to the complainant that he or she has a current right to request a hearing or file a lawsuit when a covered agency has not completed its investigation in a timely manner;
  • Changing an administrative judge’s decision on the merits of a class complaint to a “final decision,” rather than a “recommended decision,” which an agency can implement or appeal; and
  • The requirement that covered agencies must submit appeals and complaint files to the EEOC in a digital format, unless they can establish good cause for not doing so.

Employers – Beware!

Federal sector employers should now be aware of some important issues that have changed time periods for their response.

First, if an agency does not complete its investigation within the required time period, it must, within the same applicable time period, issue a written notice to the complainant informing him or her that the agency has been unable to complete its investigation within the required time limits. Additionally, an agency must now estimate a date by which its investigation will be completed and inform the complainant of that date. Further, the notice must explain that if the complainant does not want to wait until the agency completes the investigation, he or she may instead request a hearing or file a civil action in an appropriate federal district court.

Next, the final rule makes two changes to the class complaint process.  First, an appeal of the acceptance or dismissal of a class complaint will be processed by the EEOC on an expedited basis. Thus, after an EEOC administrative judge issues a decision on whether to accept or dismiss a class complaint, the agency or the class agent can appeal the decision. That appeal will now be processed within 90 days, rather than 180 days under the previous rule.

Second, the revised final rule makes 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. With the current change, an administrative judge’s class complaint decision will have the same status and effect as an administrative judge’s decision on an individual complaint; it will be a final decision which the agency or class agent can 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.

Karen M. Morinelli is a shareholder in the Tampa office of Ogletree Deakins.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.