2024-02764. Amendment of Procedural and Administrative Regulations To Include the Pregnant Workers Fairness Act (PWFA)

AGENCY:

Equal Employment Opportunity Commission.

ACTION:

Interim final rule; request for comments.

SUMMARY:

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is issuing an interim final rule to amend some of its existing procedural regulations to include references to the Pregnant Workers Fairness Act (“PWFA”), which requires covered employers to provide reasonable accommodations to a qualified applicant's or employee's known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. As an interim final rule, this will become effective on the date of publication but also is subject to change based on the public comments the EEOC receives during a subsequent 60-day comment period.

DATES:

This interim final rule is effective on February 14, 2024. Comments on this rule must be submitted on or before April 15, 2024.

ADDRESSES:

You may submit comments, identified by RIN Number 3046–AB31, by any of the following methods—please use only one method:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions on the website for submitting comments.

• Fax: Comments totaling six or fewer pages may be sent by fax machine to (202) 663–4114. Receipt of fax transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 921–2815 (voice), (800) 669–6820 (TTY), or (844) 234–5122 (ASL Video Phone).

• Mail: Comments may be submitted by mail to Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.

• Hand Delivery/Courier: Raymond Windmiller, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.

Instructions: The Commission invites comments from all interested parties. All comment submissions must include the Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide. However, the EEOC reserves the right to refrain from posting libelous or otherwise inappropriate comments, including those that contain obscene, indecent, or profane language; that contain threats or defamatory statements; that contain hate speech directed at race; color; sex; national origin; age; religion; disability; or genetic information; or that promote or endorse services or products.

Docket: For access to comments received, go to https://www.regulations.gov. Copies of the received comments also will be available for review at the Commission's library, 131 M Street NE, Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 5:00 p.m., from April 15, 2024. You must make an appointment with library staff to review the comments in the Commission's library.

FOR FURTHER INFORMATION CONTACT:

Kathleen Oram, Assistant Legal Counsel, (202–900–8652 (voice); 1–800–669–6820 (TTY)), Office of Legal Counsel, 131 M Street NE, Washington, DC 20507. Requests for this notice in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 921–3191 (voice), (800) 669–6820 (TTY), or (844) 234–5122 (ASL).

SUPPLEMENTARY INFORMATION:  ¹

The Pregnant Workers Fairness Act (“PWFA”) became law on December 29, 2022, and became effective on June 27, 2023. The PWFA requires a covered employer to provide reasonable accommodations for a qualified employee's or applicant's known limitations related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer's operation of the business. In crafting the PWFA enforcement section, Congress recognized the advisability of using the existing mechanisms and procedures in place for redress of other forms of employment discrimination. Specifically, under 42 U.S.C. 2000gg–2(a) of the PWFA, the enforcement mechanisms and procedures set forth in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e–4, et seq., as amended, apply to employees defined in section 701(f) of Title VII, 42 U.S.C. 2000e(f), (non-federal sector employees) (except as provided in 42 U.S.C. 2000gg–2(a)(2) & (3)). Under 42 U.S.C. 2000gg–2(d), the enforcement mechanisms and procedures set forth in the Government Employee Rights Act of 1991 (GERA), 42 U.S.C. 2000e–16b and 16c, apply to employees covered by GERA (except as provided in 42 U.S.C. 2000gg–2(d)(2) & (3)). Finally, under 42 U.S.C. 2000gg–2(e), the enforcement mechanisms and procedures set forth in section 717 of Title VII the Civil Rights Act of 1964, 42 U.S.C. 2000e–16, apply to employees covered by section 717 (federal-sector employees) (except as provided in 42 U.S.C. 2000gg–2(e)(2) & (3)).

Based on the PWFA's adoption of the enforcement mechanisms and procedures of Title VII and GERA, the procedures implementing those statutory provisions in the EEOC's regulations also will apply to the PWFA. Specifically, the EEOC's procedures for the PWFA will follow the rules found at 29 CFR parts 1601 (procedural regulations), 1602 (recordkeeping and reporting requirements under Title VII, the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA)), 1603 (procedures for previously exempt state and local government employee complaints of employment discrimination under section 304 of the Government Employee Rights Act of 1991), and 1614 (federal sector equal employment opportunity). Thus, employees covered by the PWFA will file charges or complaints and the EEOC will investigate or otherwise process them using the same procedures as set out in Title VII or GERA. In this interim final rule, therefore, the EEOC is amending its procedural and administrative regulations to add references in these rules to the PWFA.

Likewise, this interim final rule amends 29 CFR parts 1610 (availability of records), 1611 (Privacy Act regulations), and 1626 (procedures—Age Discrimination in Employment Act) to include references to the PWFA in the lists of laws enforced by the EEOC. All EEOC records involving the PWFA are covered by the key privacy and government records provisions in the Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a). In addition, because 29 CFR 1626.17(a)(2), part of the EEOC's ADEA regulation, references the full universe of EEOC enforced laws, it must be supplemented to add the PWFA.

Finally, in the amendment of the procedural regulations after the passage of GINA, reference to GINA was inadvertently omitted from the list of statutes enforced by the EEOC in 29 CFR 1614.503. Thus, the proposed interim final rule adds GINA to 29 CFR 1614.503 in the list of statutes enforced by the EEOC. This change is a ministerial correction of a technical oversight.

The Administrative Procedure Act requires in section 553 that rulemaking start with public notice and an invitation for comments on the proposed rule, except when statutory exceptions apply. When an agency determines that there is “good cause” to find that public notice and comment is “impracticable, unnecessary, or contrary to the public interest,” public comments prior to the effectiveness of a final rule are not required as long as the agency “incorporates the finding and a brief statement” of its reasons in the rule itself. 5 U.S.C. 553(b)(B).

Under 5 U.S.C. 553(b)(B), there is “good cause” to find that notice and comment “are impracticable, unnecessary, or contrary to the public interest” for this rulemaking, such that it is appropriate to issue this regulation as an interim final rule. The types of rules that satisfy the “unnecessary” prong of this standard due to their administrative or insignificant nature include nondiscretionary changes required by statute and technical changes that do not impact rights or responsibilities.

Public comment is “unnecessary” under this standard because by its express statutory terms the PWFA requires the EEOC to follow existing procedures originally established by Congress in earlier EEOC-enforced laws and already implemented by the agency in long-standing EEOC procedural regulations. This interim final regulation simply adds reference to the PWFA in the lists of EEOC-enforced statutes subject to these procedures. The statutory terms of the PWFA do not give the EEOC any discretion to change these established procedures for the enforcement of the PWFA or to make exceptions from the established procedures for the PWFA. Therefore, the EEOC has determined that an interim final rule is appropriate. The EEOC will accept comments on this rule and will consider such comments to the extent that the changes can be made within the statutory framework of the PWFA.

In addition, as a purely ministerial change, this interim final rule adds the PWFA to the lists of the statutes the EEOC enforces—and therefore now creates records about—in its Public Records regulation (29 CFR part 1610) and its Privacy Act regulation (29 CFR part 1611). EEOC records concerning enforcement of the PWFA are government records and therefore are subject to the Freedom of Information Act and the Privacy Act. Accordingly, the EEOC will process public records requests for PWFA-related documents pursuant to its Freedom of Information Act procedures at 29 CFR part 1610 and will protect information in those records pursuant to its Privacy Act procedures at 29 CFR part 1611.

Finally, the ADEA regulation includes a list of EEOC statutes enforced at 29 CFR 1626.17(a)(2). To make this list complete, this rulemaking adds a reference to the PWFA in this list. This is a ministerial change making it express that the PWFA is a law the EEOC now enforces.

Under 5 U.S.C. 553(b)(B), a rulemaking can be exempt from prior notice and comment if an agency finds good cause that the notice and comment would be “contrary to the public interest.” The absence of this rule, or significant delay in its promulgation, could result in public confusion concerning the EEOC's procedures for administering the PWFA to the detriment of the public, and would therefore be “contrary to the public interest.”

Because these changes to the EEOC's existing regulations all are either statutorily required in their terms or are purely ministerial in the interest of completeness, there is “good cause” for this interim final rule to become effective immediately upon publication under 5 U.S.C. 553(b)(B), with provision for post-promulgation public comment and the possibility for the Commission to change the Interim Final Rule at a later date. For the same reasons, there is good cause to provide for an immediate effective date. See5 U.S.C. 553(d)(3).

Regulatory Procedures

Executive Order 12866 (as Amended by Executive Order 14094)

The Commission has complied with the principles in section 1(b) of Executive Order 12866, as amended by Executive Order 14094, Regulatory Planning and Review. This rule is not a “significant regulatory action” under section 3(f) of the Executive Order and does not require an assessment of potential costs and benefits under section 6(a)(3) of the Executive Order.

Paperwork Reduction Act

This regulation contains no new information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 604, requires a final regulatory flexibility analysis only for rules “after being required to publish a general notice of proposed rulemaking” or for interpretive internal revenue laws. The EEOC's interim final rule amending the EEOC's procedural regulations to include references to the PWFA is being promulgated without a notice of proposed rulemaking for the reasons described above. Further, it does not concern internal revenue matters. Therefore, no regulatory flexibility analysis is required.

Unfunded Mandates Reform Act of 1995

This 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, in 1995 dollars, updated annually for inflation. In 2023, that threshold is approximately $177 million. 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 1995, 2 U.S.C. 1501 et seq.

List of Subjects in 29 CFR Parts 1601, 1602, 1603, 1610, 1611, 1614, and 1626

• Administrative practice and procedure
• Equal employment opportunity

For the Commission.

Dated: February 6, 2024.

Charlotte A. Burrows,

Chair, U.S. Equal Employment Opportunity Commission.

Accordingly, the U.S. Equal Employment Opportunity Commission amends 29 CFR parts 1601, 1602, 1603, 1610, 1611, 1614, and 1626 as follows:

PART 1601—PROCEDURAL REGULATIONS

1. The authority citation for part 1601 is revised to read as follows:

Authority: 42 U.S.C. 2000e to 2000e–17; 42 U.S.C. 12111 to 12117; 42 U.S.C. 2000ff to 2000ff–11; 42 U.S.C. 2000gg to 2000gg–6; 28 U.S.C. 2461 note, as amended; Pub. L. 104–134, Sec. 31001(s)(1), 110 Stat. 1373.

2. Section 1601.1 is revised to read as follows:

§ 1601.1

Purpose.

The regulations set forth in this part contain the procedures established by the Equal Employment Opportunity Commission for carrying out its responsibilities in the administration and enforcement of title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Genetic Information Nondiscrimination Act of 2008, and the Pregnant Workers Fairness Act. Section 107 of the Americans with Disabilities Act, section 207 of the Genetic Information Nondiscrimination Act, and section 104 of the Pregnant Workers Fairness Act incorporate the powers, remedies and procedures set forth in sections 705, 706, 707, 709 and 710 of the Civil Rights Act of 1964. Based on its experience in the enforcement of title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Pregnant Workers Fairness Act, and upon its evaluation of suggestions and petitions for amendments submitted by interested persons, the Commission may from time to time amend and revise these procedures.

3. Revise the heading of § 1601.2 to read as follows:

§ 1601.2

Terms defined in title VII of the Civil Rights Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Pregnant Workers Fairness Act.

4. Section 1601.3 is amended by revising paragraph (a) to read as follows:

§ 1601.3

Other definitions.

(a) For the purposes of this part, the term title VII shall mean title VII of the Civil Rights Act of 1964; the term ADA shall mean the Americans with Disabilities Act of 1990; the term GINA shall mean the Genetic Information Nondiscrimination Act of 2008; the term PWFA shall mean the Pregnant Workers Fairness Act; the terms EEOC or Commission shall mean the Equal Employment Opportunity Commission or any of its designated representatives; the term Washington Field Office shall mean the Commission's primary non-Headquarters office serving the District of Columbia and Virginia suburban counties and jurisdictions; the term FEP agency shall mean a State or local agency which the Commission has determined satisfies the criteria stated in section 706(c) of title VII; and the term verified shall mean sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgements, or supported by an unsworn declaration in writing under penalty of perjury.

§§ 1601.6, 1601.7, 1601.10, 1601.11, 1601.13, 1601.17, 1601.18, 1601.21, 1601.22, 1601.24, 1601.25, 1601.26, 1601.28, 1601.30, 1601.70, and 1601.79

[Amended]

5. Remove the words “title VII, the ADA, or GINA” and add in their place the words “title VII, the ADA, GINA, or the PWFA” wherever they appear in the following places:

a. § 1601.6(a);

b. § 1601.7(a);

c. § 1601.10;

d. § 1601.11(b);

e. § 1601.13(a)(3)(i), (a)(4)(i);

f. § 1601.17(a);

g. § 1601.18(a);

h. § 1601.21(a), (e)(2)(iii);

i. § 1601.22;

j. § 1601.24(c);

k. § 1601.25;

l. § 1601.26(a);

m. § 1601.28(a)(3), (b)(1);

n. § 1601.30(a);

o. § 1601.70(d);

p. § 1601.79.

§§ 1601.16, 1601.30, and 1601.34

[Amended]

6. Remove the words “title VII, the ADA, and GINA” and add in their place the words “title VII, the ADA, GINA, and the PWFA” wherever they appear in the following places:

a. § 1601.16(a);

b. § 1601.30(a);

c. § 1601.34.

7. Section 1601.28(e)(1) is revised to read as follows:

§ 1601.28

Notice of Right to Sue: Procedure and Authority.

(e) * * *

(1) Authorization to the aggrieved person to bring a civil action under title VII, the ADA, GINA, or the PWFA pursuant to section 706(f)(1) of title VII, section 107 of the ADA, section 207 of GINA, or section 104 of the PWFA within 90 days from receipt of such authorization;

8. Section 1601.70(a)(1) is revised to read as follows:

§ 1601.70

FEP agency qualifications.

(a) * * *

(1) That the state or political subdivision has a fair employment practice law which makes unlawful employment practices based upon race; color; religion; sex; national origin; disability; genetic information; or pregnancy, childbirth, or related medical conditions; and

PART 1602—RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE VII, THE ADA, GINA, AND THE PWFA

9. The heading for part 1602 is revised to read as set forth above.

10. The authority citation for part 1602 is revised to read as follows:

Authority: 42 U.S.C. 2000e–8, 2000e–12; 44 U.S.C. 3501 et seq.;42 U.S.C. 12117; 42 U.S.C. 2000ff–6; 42 U.S.C. 2000gg–2.

11. Section 1602.1 is revised to read as follows:

§ 1602.1

Purpose and scope.

Section 709 of title VII (42 U.S.C. 2000e–8), section 107 of the Americans with Disabilities Act (ADA) (42 U.S.C. 12117), section 207(a) of the Genetic Information Nondiscrimination Act (GINA) (42 U.S.C. 2000ff–6), and section 104 of the Pregnant Workers Fairness Act (PWFA) (42 U.S.C 2000gg–2) require the Commission to establish regulations pursuant to which employers, labor organizations, joint labor-management committees, and employment agencies subject to those Acts shall make and preserve certain records and shall furnish specified information to aid in the administration and enforcement of the Acts.

§§ 1602.11, 1602.12, 1602.14, 1602.19, 1602.21(b), 1602.26, 1602.28, 1602.31, 1602.37, 1602.45, and 1602.54

[Amended]

12. Remove the words “title VII, the ADA, or GINA” and add in their place the words “title VII, the ADA, GINA, or the PWFA”; and remove the words “section 709(c) of title VII, section 107 of the ADA, or section 207(a) of GINA” and add in their place the words “section 709(c) of title VII, section 107 of the ADA, section 207(a) of GINA, or section 104 of the PWFA” wherever they appear in the following places:

a. § 1602.11;

b. § 1602.12;

c. § 1602.14;

d. § 1602.19;

e. § 1602.21(b);

f. § 1602.26;

g. § 1602.28(a);

h. § 1602.31;

i. § 1602.37;

j. § 1602.45;

k. § 1602.54.

PART 1603—PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER SECTION 304 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991

13. The authority citation for part 1603 is revised to read as follows:

Authority: 42 U.S.C. 2000e–16c; 42 U.S.C. 2000ff–6(b); 42 U.S.C 2000gg–2.

14. Section 1603.102(a) is revised to read as follows:

§ 1603.102

Filing a complaint.

(a) Who may make a complaint. Individuals referred to in § 1603.101 who believe they have been discriminated against on the basis of race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions; or retaliated against for opposing any practice made unlawful by federal laws protecting equal employment opportunity or for participating in any stage of administrative or judicial proceedings under federal laws protecting equal employment opportunity may file a complaint not later than 180 days after the occurrence of the alleged discrimination.

* * * * *

PART 1610—AVAILABILITY OF RECORDS

15. The authority citation for part 1610 continues to read as follows:

Authority: 42 U.S.C. 2000e–12(a), 5 U.S.C. 552 as amended by Pub. L. 93–502, Pub. L. 99–570, and Pub. L. 105–231; for § 1610.15, non-search or copy portions are issued under 31 U.S.C. 9701.

16. Section 1610.7(a)(4) is revised to read as follows:

§ 1610.7

Where to make request; form.

(a) * * *

(4) Materials in office investigative files related to charges under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.); the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.); or the Pregnant Workers Fairness Act (42 U.S.C. 2000gg et seq.).

* * * * *

17. Section 1610.17(i) is revised to read as follows:

§ 1610.17

Exemptions.

* * * * *

(i) Section 107 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117); section 207(a) of the Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff–6); and section 104 of the Pregnant Workers Fairness Act (42 U.S.C. 2000gg–2) explicitly adopt the powers, remedies, and procedures set forth in sections 706 and 709 of title VII. Accordingly, the prohibitions on disclosure contained in sections 706 and 709 of title VII as outlined in paragraphs (b), (c), (d), and (e) of this section, apply with equal force to requests for information related to charges and executed statistical reporting forms filed with the Commission under the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Pregnant Workers Fairness Act.

* * * * *

PART 1611—PRIVACY ACT REGULATIONS

18. The authority citation for part 1611 continues to read as follows:

Authority: 5 U.S.C. 552a.

19. Section 1611.13 is amended by revising the introductory text, paragraph (a), and the first sentence of paragraph (c) to read as follows:

§ 1611.13

Specific Exemptions—Charge and complaint files.

Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2), systems EEOC–1 (Age and Equal Pay Act Discrimination Case Files), EEOC–3 (Title VII, Americans with Disabilities Act, GINA, and PWFA Discrimination Case Files), EEOC–15 (Internal Harassment Inquiries) and EEOC/GOVT–1 (Equal Employment Opportunity Complaint Records and Appeal Records) are exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) of the Privacy Act. The Commission has determined to exempt these systems from the above- named provisions of the Privacy Act for the following reasons:

(a) The files in these systems contain information obtained by the Commission and other Federal agencies in the course of harassment inquiries, and investigations of charges and complaints that violations of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and the Pregnant Workers Fairness Act have occurred. It would impede the law enforcement activities of the Commission and other agencies if these provisions of the Act applied to such records.

* * * * *

(c) Subject individuals of the files in EEOC–1 (Age and Equal Pay Act Discrimination Case Files), EEOC–3 (Title VII, Americans with Disabilities Act, GINA, and PWFA Discrimination Case Files), and EEOC/GOVT–1 (Equal Employment Opportunity Complaint Records and Appeal Records) have been provided a means of access to their records by the Freedom of Information Act. * * *

* * * * *

PART 1614—FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

20. The authority citation for part 1614 is revised to read as follows:

Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 2000e–16, 2000ff–6(e), and 2000gg–2(e); 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.

21. Section 1614.101 is revised to read as follows:

§ 1614.101

General policy.

(a) It is the policy of the Government of the United States to provide equal opportunity in employment for all persons, to prohibit discrimination in employment because of race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions; and to promote the full realization of equal employment opportunity through a continuing affirmative program in each agency.

(b) No person shall be subject to retaliation for opposing any practice made unlawful by title VII of the Civil Rights Act (title VII) (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act (ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)), the Rehabilitation Act (29 U.S.C. 791 et seq.), the Genetic Information Nondiscrimination Act (GINA) (42 U.S.C. 2000ff et seq.), or the Pregnant Workers Fairness Act (PWFA) (42 U.S.C. 2000gg et seq.) or for participating in any stage of administrative or judicial proceedings under those statutes.

22. Section 1614.102(a)(4) is revised to read as follows:

§ 1614.102

Agency program.

(a) * * *

(4) Communicate the agency's equal employment opportunity policy and program and its employment needs to all sources of job candidates without regard to race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions; and solicit their recruitment assistance on a continuing basis;

* * * * *

23. Section 1614.103(a) is revised to read as follows:

§ 1614.103

Complaints of discrimination covered by this part.

(a) Individual and class complaints of employment discrimination and retaliation prohibited by title VII (discrimination on the basis of race, color, religion, sex and national origin), the ADEA (discrimination on the basis of age when the aggrieved individual is at least 40 years of age), the Rehabilitation Act (discrimination on the basis of disability), the Equal Pay Act (sex-based wage discrimination), GINA (discrimination on the basis of genetic information), or the PWFA (discrimination on the basis of pregnancy, childbirth, or related medical conditions) shall be processed in accordance with this part. Complaints alleging retaliation prohibited by these statutes are considered to be complaints of discrimination for purposes of this part.

* * * * *

24. Amend § 1614.105 by revising paragraph (a) introductory text to read as follows:

§ 1614.105

Pre-complaint processing.

(a) Aggrieved persons who believe they have been discriminated against on the basis of race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.

* * * * *

25. Section 1614.204(a)(1) is revised to read as follows:

§ 1614.204

Class complaints.

(a) * * *

(1) A class is a group of employees, former employees or applicants for employment who, it is alleged, have been or are being adversely affected by an agency personnel management policy or practice that discriminates against the group on the basis of their race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions.

* * * * *

26. Amend § 1614.302 by revising paragraphs (a)(1) and (2) to read as follows:

§ 1614.302

Mixed case complaints.

(a) * * *

(1) Mixed case complaint. A mixed case complaint is a complaint of employment discrimination filed with a federal agency based on race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address.

(2) Mixed case appeals. A mixed case appeal is an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination on the basis of race; color; religion; sex; national origin; disability; age; genetic information; or pregnancy, childbirth, or related medical conditions.

* * * * *

27. Section 1614.304(b)(3) is revised to read as follows:

§ 1614.304

Contents of petition.

* * * * *

(b) * * *

(3) A statement of the reasons why the decision of the MSPB is alleged to be incorrect, in whole or in part, only with regard to issues of discrimination based on race; color; religion; sex; national origin; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions;

* * * * *

28. Amend § 1614.407 by revising the introductory text to read as follows:

§ 1614.407

Civil action: Title VII, Age Discrimination in Employment Act, Rehabilitation Act, Genetic Information Nondiscrimination Act, and Pregnant Workers Fairness Act.

A complainant who has filed an individual complaint, an agent who has filed a class complaint or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized under title VII, the ADEA, the Rehabilitation Act, Genetic Information Nondiscrimination Act, and the Pregnant Workers Fairness Act to file a civil action in an appropriate United States District Court:

* * * * *

29. Section § 1614.503(g) is revised to read as follows:

§ 1614.503

Enforcement of final Commission decisions.

* * * * *

(g) Notification to complainant of completion of administrative efforts. Where the Commission has determined that an agency is not complying with a prior decision, or where an agency has failed or refused to submit any required report of compliance, the Commission shall notify the complainant of the right to file a civil action for enforcement of the decision pursuant to Title VII, the ADEA, the Equal Pay Act, the Rehabilitation Act, the Genetic Information Nondiscrimination Act, or the Pregnant Workers Fairness Act and to seek judicial review of the agency's refusal to implement the ordered relief pursuant to the Administrative Procedure Act, 5 U.S.C. 701 et seq., and the mandamus statute, 28 U.S.C. 1361, or to commence de novo proceedings pursuant to the appropriate statutes.

30. Section § 1614.702(j) is revised to read as follows:

§ 1614.702

Definitions.

* * * * *

(j) The term basis of alleged discrimination refers to the individual's protected status ( i.e., race; color; religion; reprisal; sex; national origin; Equal Pay Act; age; disability; genetic information; or pregnancy, childbirth, or related medical conditions). Only those bases protected by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., the Equal Pay Act of 1963, 29 U.S.C. 206(d), the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq., the Genetic Information Nondiscrimination Act, 42 U.S.C. 2000ff et seq., and the Pregnant Workers Fairness Act, 42 U.S.C. 2000gg et seq., are covered by the Federal EEO process.

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PART 1626—PROCEDURES—AGE DISCRIMINATION IN EMPLOYMENT ACT

31. The authority citation for part 1626 continues to read as follows:

Authority: Sec. 9, 81 Stat. 605, 29 U.S.C. 628; sec. 2, Reorg. Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.

32. Section 1626.17(a)(2) is revised to read as follows:

§ 1626.17

Notice of dismissal or termination.

(a) * * *

(2) Where the charge has been filed under the ADEA and title VII, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), or the Pregnant Workers Fairness Act (PWFA), the Commission will issue a Notice of Dismissal or Termination under the ADEA at the same time it issues the Notice of Right to Sue under title VII, the ADA, GINA, or the PWFA, in accordance with 29 CFR 1601.28.

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Footnotes

1.  On August 11, 2023, the EEOC issued a Notice of Proposed Rule Making regarding the substantive provisions of the PWFA. Regulations to Implement the Pregnant Workers Fairness Act,88 FR 54714 (August 11, 2023).