[Federal Register Volume 59, Number 149 (Thursday, August 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18935]
[[Page Unknown]]
[Federal Register: August 4, 1994]
_______________________________________________________________________
Part V
Department of Justice
Equal Employment Opportunity Commission
_______________________________________________________________________
28 CFR Part 37
29 CFR Part 1640
Procedures for Coordinating the Investigation of Complaints or Charges
of Employment Discrimination Based on Disability Subject to the
Americans With Disabilities Act and Section 504 of the Rehabilitation
Act of 1973; Final Rule
DEPARTMENT OF JUSTICE
28 CFR Part 37
[A.G. Order No. 1899-94]
RIN 1190-AA29
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1640
RIN 3046-AA42
Procedures for Coordinating the Investigation of Complaints or
Charges of Employment Discrimination Based on Disability Subject to the
Americans With Disabilities Act and Section 504 of the Rehabilitation
Act of 1973
AGENCIES: Department of Justice and Equal Employment Opportunity
Commission.
ACTION: Joint final rule.
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SUMMARY: Section 107(b) of the Americans with Disabilities Act of 1990
(ADA) requires that the Department of Justice (the Department), the
Equal Employment Opportunity Commission (the Commission or the EEOC),
and the Department of Labor's Office of Federal Contract Compliance
Programs issue regulations setting forth procedures to coordinate the
processing of complaints that fall within the overlapping jurisdiction
of title I of the ADA and the Rehabilitation Act of 1973, to ensure
that such complaints are dealt with in a manner that avoids duplication
of effort and prevents the imposition of inconsistent or conflicting
standards. Pursuant to this mandate, the Department of Justice and the
EEOC are publishing a joint final rule implementing section 107(b) as
it pertains to title I of the ADA and section 504 of the Rehabilitation
Act of 1973. In addition, this regulation describes the existing
procedures for processing: Employment complaints that fall within the
overlapping jurisdiction of title II of the ADA and either title I or
section 504 of the Rehabilitation Act, or both; and employment
complaints that arise solely under title I or section 504. A joint
final rule developed by the EEOC and the Department of Labor
implementing section 107(b) as it pertains to title I and section 503
of the Rehabilitation Act has been published separately in the Federal
Register of January 24, 1992.
EFFECTIVE DATE: August 4, 1994.
FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Acting Chief,
Coordination and Review Section, Civil Rights Division, U.S. Department
of Justice, P.O. Box 66118, Washington, D.C. 20035-6118. She can also
be contacted through the Division's ADA Information Line at (202) 514-
0301 or (800) 514-0301 (voice), or (202) 514-0383 or (800) 514-0383
(TDD).
Elizabeth M. Thornton, Deputy Legal Counsel, Equal Employment
Opportunity Commission, 1801 L Street NW., Washington, DC 20507, (202)
663-4638 (voice), (202) 663-7026 (TDD). Only the 800 numbers listed
above are toll-free numbers.
Copies of this rule are available in the following alternate
formats: large print, Braille, electronic file or computer disk, and
audio tape. Copies may be obtained by calling (800) 669-3362 (voice) or
(800) 800-3302 (TDD).
SUPPLEMENTARY INFORMATION:
Background
Title I of the ADA, 42 U.S.C. 12111-12117, prohibits discrimination
against qualified individuals with disabilities in all aspects of
employment. Title I of the ADA became effective on July 26, 1992, with
respect to employers with 25 or more employees. 42 U.S.C. 12111(5)(A).
On July 26, 1994, this coverage will be extended to employers with 15
or more employees. Id. The EEOC is authorized to investigate and
attempt to resolve charges of employment discrimination under title I.
Subtitle A of title II of the ADA, 42 U.S.C. 12131-12134, prohibits
discrimination against qualified individuals with disabilities on the
basis of disability by State and local governmental entities in their
services, programs, and activities, including employment. As of January
26, 1992, the effective date of title II, all State and local
governmental entities, regardless of the number of persons they employ,
were prohibited from discriminating on the basis of disability in
employment. The Department of Justice has issued a regulation
implementing title II, which provides that eight designated Federal
agencies shall investigate and attempt to resolve complaints of
discrimination under title II. Complaints that arise solely under title
II are investigated by the designated agency most closely related to
the functions exercised by the governmental component against which the
complaint is lodged. See 28 CFR part 35 (56 FR 35694, July 26, 1991).
Section 504 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. 794, prohibits discrimination on the basis of disability
(formerly, ``handicap'') in programs and activities receiving Federal
financial assistance or conducted by any Executive agency. The
nondiscrimination requirements of section 504 are applicable to
employment in Federally-assisted programs. Each Federal agency that
extends Federal financial assistance is responsible for compliance with
section 504 in the programs it funds. More than twenty-five Federal
agencies have issued regulations implementing section 504 for their
Federally-assisted programs. These agencies are referred to in this
rule as section 504 agencies.
The substantive prohibitions and coverage of title I, title II, and
section 504 overlap to a significant extent. There is, therefore, a
potential for duplicative efforts by the many Federal agencies
responsible for ensuring compliance with these laws in their processing
of complaints. Thus, pursuant to section 107(b) of the ADA, the
Department and the Commission are promulgating this joint final rule to
establish procedures for coordinating the processing of complaints that
fall within the overlapping jurisdiction of section 504 and title I of
the ADA. For convenience and clarity in processing complaints, this
rule also incorporates the provisions established by the Department's
title II rule at 28 CFR 35.171(b)(2)-(3) for coordinating the
processing of complaints against public entities: (i) that fall within
the jurisdiction of title II and title I (but are not covered by
section 504); and (ii) that are covered by title II, but not title I
(whether or not they are also covered by section 504). This reiteration
of title II procedures does not amend or change the title II regulation
as previously published. The Commission does not express an opinion on
the title II procedures set forth herein, since they merely repeat a
previously published regulation over which the Commission has no direct
authority. The Commission and the Department of Labor also have
published joint rules implementing section 107(b) of the ADA as it
pertains to title I and section 503 of the Rehabilitation Act. See 29
CFR part 1641, 41 CFR part 60-742 (57 FR 2960, January 24, 1992).
Analysis of Comments and Revisions
Overview
The Commission received ten comments in response to a notice of
proposed rulemaking (NPRM) published jointly with the Department of
Justice on April 21, 1992. 57 FR 14630. In addition, the Commission
received comments from various affected Federal agencies on both the
proposed regulation and on the draft final regulation, pursuant to
interagency coordination under Executive Order 12067. The Commission
and the Department of Justice have carefully considered all of the
comments and made various revisions in response to them. A number of
commenters expressed reservations about the feasibility of the
procedures set forth in the NPRM and suggested various alternative
procedures. Several commenters strongly urged that procedures similar
to those set forth in the regulation promulgated to coordinate
processing of complaints of employment discrimination filed against
recipients of federal financial assistance be adopted. See 28 CFR part
42; 29 CFR part 1691 (hereinafter, the title VI/title VII regulation).
The title VI/title VII regulation established procedures for handling
complaints of employment discrimination filed against recipients of
Federal financial assistance subject to title VI of the Civil Rights
Act of 1964, title IX of the Education Amendments of 1972, the State
and Local Fiscal Assistance Act of 1972, as amended, and other
provisions of Federal law that prohibit discrimination on grounds of
race, color, religion, sex, or national origin, in programs or
activities receiving Federal financial assistance, when there is
overlapping jurisdiction under title VII of the Civil Rights Act of
1964.
Under the NPRM's ``first filed approach,'' the EEOC and any section
504 agency with jurisdiction over a charge or complaint would process
those charges or complaints that were actually filed with it, pursuant
to title I of the ADA or section 504, respectively. In the case of a
charge or complaint that was physically filed with both the EEOC and a
section 504 agency with jurisdiction, the agency that first received
the complaint or charge would process it, absent special circumstances,
while the second agency would defer processing pending the conclusion
of the first agency's investigation. Numerous section 504 agencies
expressed concern about the practical difficulties inherent in the
NPRM's approach, including ascertaining which agency actually received
a charge or complaint first in the case of a charge or complaint filed
with both the EEOC and a section 504 agency. Accordingly, as suggested
by a number of commenters, the final regulation adopts an approach
similar to that of the title VI/title VII regulation. Under the final
rule, a complaint solely alleging employment discrimination against a
single individual (hereinafter, an individual complaint) that is filed
with a section 504 agency with jurisdiction over the complaint will
ordinarily be transferred to the EEOC for processing, unless the
complainant specifically requests processing by the section 504 agency.
Section 504 agencies, however, will retain for processing any
complaints that allege: (i) a pattern or practice of discrimination in
employment; or (ii) discrimination both in employment and in other
services or practices of a respondent that are covered by section 504.
For a comprehensive analysis of the new procedures, see the discussion
of Sec. ____.6, below.
The NPRM presented two options regarding the legal standard to be
applied by section 504 agencies, and the preamble to the NPRM discussed
the rationale for each option. Although numerous comments on these
options were received in response to the NPRM, recent amendments to the
Rehabilitation Act have resolved this issue. See section 506 of the
Rehabilitation Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4344.
Therefore, as provided in that amendment, the final regulation directs
section 504 agencies to apply the standards of title I of the ADA. See
the discussion of Sec. ____.12, below.
Commenters also requested that time frames for the processing of
complaints be added to the final regulation. Because, in certain cases,
individual agencies may have requirements that preclude meeting fixed
time frames for certain stages of the complaint investigation process,
this suggestion has not been adopted. For example, when disclosure of
the complainant's identity is necessary for the investigation of a
section 504 or title II complaint, the Department requires receipt of a
signed consent form from the complainant prior to notifying a
respondent that the Department has received a complaint of
discrimination. Therefore, the final regulation retains the more
general requirement that agencies act promptly and in accordance with
applicable law.
Various commenters also noted the inefficiency of the requirement
that a section 504 agency refer a complaint to the Civil Rights
Division for a determination of jurisdiction when the agency does not
have section 504 jurisdiction, but does have title II jurisdiction. In
response, the regulation has been revised to require that a complaint
be referred to the Civil Rights Division only when the section 504
agency that initially receives the complaint has neither section 504
nor title II jurisdiction.
Section-by-Section Analysis
Section ____.1 Purpose and Application
Section ____.1 of the final rule, ``Purpose and application,''
explains that the rule establishes the coordination procedures to be
followed by the Federal agencies responsible for processing complaints
of employment discrimination filed against recipients of Federal
financial assistance and arising under section 504 and title I of the
ADA. In addition to establishing those new procedures, the rule also
restates and integrates into one comprehensive regulation those
provisions of the Department's existing title II regulation that
established the procedures for coordinating the processing of
complaints covered by title II of the ADA and either title I or section
504, or both. The rule does not amend the title II regulation, but
simply locates all of the applicable regulations regarding coordination
in a single source.
Section ____.2 Definitions
Section ____.2 defines a number of terms used in the rule. A
definition of the term ``due weight'' has been added, supplementing the
discussion in the preamble.
The definitions of Federal financial assistance and program or
activity, both of which relate to the determination of whether
jurisdiction exists under section 504, have been revised from those
contained in the NPRM. The NPRM originally contained a detailed
definition of Federal financial assistance. However, in recognition of
the fact that this definition may vary among section 504 agency
regulations due to the nature of financial assistance provided by each
agency, the new definition simply refers to the definitions adopted by
each section 504 agency in its regulation implementing section 504 for
Federally-assisted programs.
The definition of program or activity under section 504 was
modified by the Civil Rights Restoration Act of 1987, Pub. L. 100-259,
102 Stat. 29, for all section 504 agencies. Therefore, to avoid any
inconsistency between this rule and any agency regulations implementing
section 504 that may not have been amended to reflect this change to
the Rehabilitation Act, the new definition references the statutory
definition.
Section ____.3 Exchange of Information
Section ____.3 requires the agencies responsible for enforcing the
ADA and section 504 to share information.
Section ____.4 Confidentiality
Section ____.4(a) states that the confidentiality obligations
applicable to the EEOC under the ADA also apply to section 504 agencies
and designated agencies when information obtained by the EEOC is
transmitted to such agencies, except when the agency receives the same
information from a source other than the EEOC. Section ____.4(b) states
that when the EEOC receives information from section 504 or designated
agencies, the EEOC shall comply with any confidentiality requirements
applicable to that information.
Section ____.5 Date of Receipt
Section ____.5 states that a complaint or charge of employment
discrimination is deemed to be filed, for purposes of determining
timeliness, on the date the complaint or charge is first received by a
Federal agency with jurisdiction under section 504 or the ADA,
regardless of whether it is subsequently transferred to another agency
for processing.
Section ____.6 Processing of Complaints of Employment Discrimination
Filed With an Agency Other Than the EEOC
Section ____.6 describes the basic procedures that section 504
agencies and the agencies designated to process complaints under the
Department's title II regulation will follow in determining whether to
process an employment complaint or to refer it to another agency. The
primary purpose of the rule is to establish procedures for coordinating
the processing of complaints or charges of employment discrimination
arising under section 504 and title I of the ADA. However, the
procedures for coordinating the processing of complaints or charges of
employment discrimination against public entities: (i) that fall under
the jurisdiction of title II and title I (but not section 504); and
(ii) that fall under the jurisdiction of title II, but not title I
(whether or not covered by section 504) established by Sec. 35.171 of
the Department's title II regulation, have been restated here and
integrated with the section 504 processing procedures for clarity and
ease in processing by the affected agencies.
Section ____.6 has been revised to eliminate the requirement that
the initial receiving agency, or the Civil Rights Division, when a
complaint is forwarded to it for a determination of jurisdiction,
provide notice to the affected parties. As previously written, the
regulation required notification by any agency that came into contact
with a complaint or charge even if the complaint or charge was
immediately forwarded to another agency. Instead of multiple
notifications, the final rule now provides for a more efficient single
notification at such time as the appropriate processing agency receives
the complaint or charge, in accordance with agency policy and
applicable law.
Paragraph (b) of Sec. ____.6 has been revised to provide that, if
an agency determines pursuant to paragraph (a) that it does not have
jurisdiction under section 504 or title II, and that the EEOC does not
have jurisdiction under title I, the agency shall promptly refer the
complaint to the Civil Rights Division. This is a change from the
procedure set forth in the NPRM, which required a section 504 agency to
refer all title II complaints to the Civil Rights Division. The
revision was made in response to various comments pointing out that
this was an inefficient procedure when the section 504 agency was
certain that it was the designated agency under title II, and that the
complaint would be referred back to it by the Civil Rights Division.
Upon receipt of a referred complaint, the Civil Rights Division
will determine whether another Federal agency may have jurisdiction
over the complaint under section 504 (that is, a Federal agency may be
providing financial assistance to the respondent) or under title II
(that is, the entity that is the subject of the complaint may be a
public entity). When the Civil Rights Division finds such jurisdiction,
it shall promptly refer the complaint to the appropriate agency.
Paragraph (c) of Sec. ____.6 sets forth the circumstances under
which an agency that is a section 504 agency, a designated agency, or
both, will promptly refer a complaint to the EEOC for investigation and
processing. In addition to: (i) revising the regulation to reflect the
procedures of the title VI/title VII regulation (which generally
results in individual complaints being referred for processing to the
EEOC); and (ii) incorporating the procedures already established by the
title II regulation, paragraph (c) and the balance of Sec. ____.6 more
specifically set forth the requirements for either referral or
retention applicable to each type of agency. Unlike the procedural
scheme set forth in the NPRM, under which a complaint or charge could
only be dual filed if it were actually filed with both a section 504
agency and the EEOC, a complaint or charge filed with one agency will
now be deemed to be dual filed under both title I and section 504 under
certain circumstances, as set forth in this section and in Sec. ____.7.
Paragraph (c)(1) of Sec. ____.6 describes the rule applicable to an
agency that receives a complaint of employment discrimination under
section 504 or title II and determines that it does not have
jurisdiction over the complaint. If the agency determines that the EEOC
may have jurisdiction, the agency is required to promptly forward the
complaint to the EEOC for processing. In certain instances this may
require consultation with the EEOC. This paragraph establishes the
requirements for section 504 and other agencies and includes the
requirements established by Sec. 35.171(b)(2) of the title II
regulation with respect to designated agencies.
Paragraph (c)(2) establishes the referral requirements applicable
to section 504 agencies and requires a section 504 agency that
otherwise has jurisdiction over a complaint of employment
discrimination to refer the complaint to the EEOC when the complaint
solely alleges discrimination against an individual, unless the EEOC
lacks jurisdiction over the complaint under title I, or the complainant
requests that the section 504 agency retain jurisdiction, either
independently, or following receipt of the notice letter described in
paragraphs (c)(2)(ii)(A) and (c)(2)(ii)(B).
The referral to the EEOC of complaints solely alleging employment
discrimination against individuals is a significant change in procedure
from the NPRM. The revision was made in response to numerous comments
urging this approach, which is consistent with the title VI/title VII
regulation. This approach will serve to minimize duplicative efforts
because the EEOC, in general, will be the primary agency investigating
individual complaints of disability discrimination in employment. An
individual's private right of action under title I of the ADA will also
be preserved under this approach, since these section 504 complaints
also will be deemed to be dual filed under title I. However, in order
to preserve an individual's right to have his or her complaint
processed by the section 504 agency, paragraph (c)(2)(i)(B) requires
the section 504 agency to retain the complaint for investigation if the
complainant so requests.
Paragraphs (c)(2)(ii)(A) and (c)(2)(ii)(B) describe the notice
letter a section 504 agency is required to send promptly to each
complainant before the agency refers a complaint solely alleging
employment discrimination against an individual to the EEOC. The
purpose of the letter is to inform an individual who has initially
filed his or her complaint with the appropriate section 504 agency of
the basic implications of a referral of that complaint to the EEOC. It
is anticipated that the vast majority of individual complaints will be
referred to the EEOC, with the section 504 agency deferring its review
and processing until the conclusion of the EEOC's processing. However,
because an automatic referral to the EEOC of a complaint filed with a
section 504 agency may be contrary to the complainant's expectations,
complainants will be given the choice of having the EEOC or the section
504 agency investigate the complaint.
Each agency will develop its own letter informing the complainant
that the agency will refer the complaint to the EEOC for investigation
and processing, unless the agency receives a written request to the
contrary from the complainant within twenty days of the date of the
notice letter. The agency notice letter shall explain: (i) that
agency's procedures for processing section 504 complaints; and (ii) the
EEOC's procedures for processing complaints under title I. The agency
notice letter shall also inform individuals of the potential for
differing remedies under each statute.
Paragraph (c)(3) describes the procedure for referral by designated
agencies, as established by Sec. 35.171(b)(2) of the title II
regulation. If a designated agency does not have section 504
jurisdiction, and determines that the EEOC may have title I
jurisdiction, it shall promptly refer the complaint to the EEOC.
Paragraph (c)(4)(i) provides that complaints referred to the EEOC
by an agency with section 504 jurisdiction will be deemed to be dual
filed under both section 504 and title I. As a consequence, the section
504 agency, although required to defer its processing of the complaint,
will have an opportunity to review the EEOC's findings and take any
further action it deems appropriate, as provided in Sec. ____.10.
Paragraph (c)(4)(ii) further provides that a complaint referred to the
EEOC by an agency that has jurisdiction over the complaint under title
II only (and not under section 504) will be treated as a complaint
filed under title I only. See 28 CFR 35.171(b)(2).
The distinction between the treatment of these two types of
complaints, those falling within the province of section 504 and those
arising only under the ADA, is based on the ADA's statutory mandate to
preserve the rights, remedies, and procedures of any Federal law that
provides greater or equal protection to individuals with disabilities
than are afforded by the ADA. Permitting section 504 agencies to review
complaints originally filed with those agencies preserves section 504
remedies, including an agency's prerogative to terminate the federal
funding of the respondent. It is anticipated that the fact that fund
termination is ultimately available as an administrative remedy will
encourage respondents to resolve valid claims through negotiation with
the EEOC rather than through litigation. Because Sec. ____.10(c)
requires the reviewing section 504 agency to give due weight to the
EEOC's findings and conclusions, it is also anticipated that, in most
instances, further action by the section 504 agency will not be
necessary.
Paragraph (c)(4)(iii) states that any complaint referred to the
EEOC shall be processed pursuant to title I procedures. Specifically,
the EEOC will notify respondents of its receipt of a complaint in
accordance with its usual procedures for notification following receipt
of a charge.
Paragraph (d) of Sec. ____.6 describes the circumstances under
which an agency shall retain a complaint for investigation (rather than
referring it to the EEOC or the Civil Rights Division). The general
rule applicable to section 504 agencies, as stated in paragraph (d)(1),
is that a section 504 agency shall retain a complaint when it
determines that it has section 504 jurisdiction over the complaint and
that any one or more of the following are true: (i) the EEOC does not
have jurisdiction over the complaint; (ii) the EEOC has jurisdiction
over the complaint, but the complainant requests that the complaint be
investigated by the agency rather than being referred; (iii) the
complaint alleges discrimination in both employment and in other
services or practices of the respondent that are covered by section
504; or (iv) the complaint alleges a pattern or practice of
discrimination in employment. Such complaints will not be deemed dual
filed under title I of the ADA.
This procedure is consistent with the approach taken in the title
VI/title VII regulation. For reasons of efficiency, section 504
agencies will ordinarily process complaints that allege disability
discrimination in both employment and other practices of a recipient,
because the EEOC has no jurisdiction over the latter. Historically,
under both section 504 and other civil rights statutes, agencies have
also had a particular interest in the enforcement of pattern or
practice cases of employment discrimination against recipients of
Federal assistance, and agencies shall continue to investigate such
complaints. It should be noted that the term ``pattern or practice'' of
discrimination is intended to mean systemic or class complaints
generally. Although the term ``pattern or practice'' of discrimination
is sometimes used in a more narrow sense to refer to intentional
discrimination or disparate treatment on a classwide level, the term
was used in the title VI/title VII rule to refer to both adverse impact
cases and cases of intentional discrimination affecting a class of
protected individuals.
The provisions described above only apply when a complaint is filed
with a section 504 agency. The EEOC will always process all charges,
including class charges, that are solely filed with the EEOC.
Paragraph (d)(2) restates the principle established in the title II
regulation that an agency shall retain a complaint for investigation
when it determines that: (i) it has jurisdiction over the complaint as
a designated agency; and (ii) that the EEOC does not have jurisdiction
over the complaint under title I. See 28 CFR 35.171(b)(2).
Paragraph (d)(3) states the rule that complaints retained for
investigation under paragraphs (d)(1) and (d)(2) will be investigated
and processed under section 504, title II, or both, as applicable, and
will not be considered to be dual filed under title I.
Section ____.7 Processing of Charges of Employment Discrimination Filed
With the EEOC
Section ____.7 outlines the procedures that the EEOC will take in
determining whether to process a charge or to refer it to another
agency.
Section .7(a)(1) requires the EEOC, as a first step, to determine
whether it has jurisdiction over the charge. If the EEOC has
jurisdiction, it shall process the charge in accordance with its
customary title I procedures, including notification of the respondent.
Paragraph (a)(2) sets forth the procedures that apply when the EEOC
determines that it does not have jurisdiction over the charge. Under
such circumstances, the charge will be promptly forwarded to the Civil
Rights Division for referral to the appropriate agency, or retention by
the Department for processing, as applicable.
Paragraph (b)(1) of Sec. ____.7 states the basic rule applicable to
charges filed with the EEOC, that is, when the EEOC determines that it
has jurisdiction over the charge under title I, it shall retain the
charge. Because EEOC processing of a charge filed with the EEOC is
consistent with the charging party's expectations when filing the
charge, no notice letter to the charging party, similar to the letter
required to be sent to complainants under paragraph (c)(2)(ii) of
Sec. ____.6, is required.
Paragraph (b)(2) has been newly added to the final rule. It
provides that the EEOC shall refer to a section 504 agency for further
action, as appropriate, any cause finding against a recipient that has
failed conciliation and that the EEOC has declined to litigate. By
providing for agency review under these circumstances, paragraph (b)(2)
should promote the ADA's statutory goal of preserving section 504
remedies, while the requirement that section 504 agencies give due
weight to EEOC findings should eliminate any need for duplicative
agency action.
Section ____.8 Processing of Complaints or Charges of Employment
Discrimination Filed With Both the EEOC and a Section 504 Agency
Section ____.8 sets forth the procedures that the EEOC and section
504 agencies shall follow in processing complaints or charges of
employment discrimination that have been dual filed with both the EEOC
and a section 504 agency.
Paragraph (a) of Sec. ____.8 sets forth the procedures applicable
to complaints or charges of employment discrimination that are dual
filed with both a section 504 agency and the EEOC, both of which have
jurisdiction over the complaint or charge.
Under those circumstances, the rule follows the general pattern
established by the title VI/title VII regulation, and requires the EEOC
to process charges that solely allege employment discrimination against
an individual when the individual has not elected section 504 agency
processing. Section 504 agencies will process all complaints that
allege: (i) discrimination in both employment and other practices or
services of the respondent; (ii) a pattern or practice of employment
discrimination; or (iii) discrimination solely against an individual,
when the individual has elected section 504 agency processing. This
allocation of responsibility for complaint processing is the same as
the allocation of responsibility for processing complaints originally
filed solely with a section 504 agency under Sec. ____.6. However, as
discussed below, paragraph (e) of Sec. ____.8 sets forth exceptions to
this general scheme for special circumstances.
Paragraph (b) requires complaints or charges to be referred to the
Civil Rights Division if both the EEOC and the section 504 agency
determine that they do not have jurisdiction over the complaint or
charge. The Civil Rights Division is then responsible for making the
appropriate referral to a section 504 or designated agency.
Paragraph (c) requires the EEOC and each agency with jurisdiction
under section 504 to develop procedures for determining whether
complaints or charges of discrimination have been filed with the EEOC
and with one or more agencies. It is anticipated that the Department,
the Commission, and the section 504 agencies will work together to
develop materials, such as a uniform filing form (or uniform portion of
a filing form) that will facilitate coordination in processing
employment complaints.
Although some commenters requested that these procedures be stated
in the final rule, it was decided that this activity is more
appropriately conducted at a sub-regulatory level, which will permit
more flexibility in developing efficient procedures. In addition,
because the rule has been restructured to follow the title VI/title VII
regulation rather than the ``first-filed'' approach, there is less need
to determine whether a complaint or charge has been filed with more
than one agency. For example, under the title VI/title VII model, the
EEOC will become the primary agency processing complaints or charges
that solely allege discrimination against an individual. Therefore,
there is no need to determine whether these complaints or charges have
been dual filed in order to establish responsibility for processing. In
addition, the notice letter required to be sent to section 504
complainants prior to such a referral should provide an efficient
mechanism for determining whether a charge has also been filed with the
EEOC because it could be used to require complainants to reveal whether
they had filed a complaint or charge with another agency.
Paragraph (d) requires the agency that will process a dual-filed
complaint or charge to notify all concerned parties that the other
agencies will be deferring their processing, and of the possibility of
further action by such agencies pursuant to Secs. ____.10 or ____.11.
Paragraph (e) establishes that, under certain special circumstances
where deferral may be inappropriate, the agencies involved may jointly
agree to reallocate investigatory responsibilities. For example, if the
section 504 agency would normally process the complaint, but the agency
does not receive information that another charge has been filed with
the EEOC until after an investigation has been started by the EEOC,
this exception permits the agencies jointly to decide that the EEOC
should continue processing the charge and that the section 504 agency
should defer further action. This exception could also be used in
connection with subsequent complaints or charges, such as allegations
of retaliation, related to the original complaint or charge.
The special circumstances listed in paragraph (e) are illustrative
and agencies may agree to reallocate investigatory responsibilities
under other appropriate circumstances. In such circumstances a
complaint or charge will be treated as a deferred complaint or charge
with respect to any right to review under Secs. ____.10 and ____.11.
It is not anticipated that most aggrieved individuals will
separately file with both a section 504 agency and the EEOC. Since the
substantive protections provided by title I and section 504 are now
identical, an individual's rights against discrimination on the basis
of disability can be vindicated under either statute. However, an
individual who files a complaint with a section 504 agency alleging
discrimination both in employment and services, a pattern or practice
of discrimination, or who requests section 504 processing, will not
preserve a private right of action under title I of the ADA, unless the
individual also files a charge with the EEOC under title I of the ADA.
Section ____.9 Processing of Complaints or Charges of Employment
Discrimination Filed With a Designated Agency and Either a Section 504
Agency, the EEOC, or Both
Section ____.9 adds new procedures to the final rule to address the
processing of complaints filed with a designated agency and with either
a section 504 agency, the EEOC, or both. Generally, the EEOC and the
section 504 agencies have primary responsibility for processing
complaints of employment discrimination. Therefore, Sec. ____.9
provides that a designated agency shall investigate and process a
complaint only when: (i) it is either the only agency with jurisdiction
to process the complaint; or (ii) it also has jurisdiction to process
the complaint under section 504. If another agency has sole
jurisdiction over the complaint under either section 504 or title I
(and the complaint was actually filed with that agency under section
504 or title I), Sec. ____.9 requires the designated agency to forward
the complaint to that agency. If a section 504 agency and the EEOC both
have jurisdiction over a complaint or charge of employment
discrimination, the rule allocates complaint-processing responsibility
according to the established pattern of the title VI/title VII rule,
that is, individual complaints are forwarded to the EEOC and complaints
alleging discrimination in both employment and in other practices or
services of the respondent or a pattern or practice of employment
discrimination are forwarded to the section 504 agency with
jurisdiction.
Section ____.10 Section 504 Agency Review of Deferred Complaints
Section ____.10 describes the steps that shall be taken when the
EEOC processes a dual-filed complaint or charge (either an individual
complaint that is referred to the EEOC or a dual-filed complaint or
charge that the EEOC processes) and a section 504 agency defers its
investigation.
Because the rule requires the section 504 agency to defer action
until the EEOC resolves the complaint, paragraph (a) outlines the
different ways in which any title I charge may be resolved, including
litigation by the EEOC. Although the EEOC is the agency primarily
responsible for the enforcement of title I, resolution by the Civil
Rights Division is also included under paragraphs (a) (3) and (4)
because, under title I of the ADA, when there is a cause finding
pursuant to 29 CFR 1601.21, the Civil Rights Division has litigation
authority for charges against State and local governments, government
agencies, and political subdivisions. See 29 CFR 1601.29. The Civil
Rights Division is also responsible for issuing right-to-sue letters in
such cases. See 29 CFR 1601.28(d).
Paragraph (b) of Sec. ____.10 provides that, upon resolution of the
dual-filed complaint or charge, the EEOC or the Civil Rights Division
shall inform the section 504 agency of the resolution. Paragraph (d)
provides that, upon written request by the section 504 agency, the EEOC
or the Civil Rights Division shall provide the section 504 agency with
the materials necessary to evaluate its resolution of the case, such as
investigative reports.
Paragraph (c) of Sec. ____.10 provides that, upon receipt of
notification from the EEOC or the Civil Rights Division, as
appropriate, the section 504 agency shall determine what further action
is warranted. Because, pursuant to the 1992 amendments to the
Rehabilitation Act, the substantive standards to be applied to
complaints of employment discrimination are now identical, it is
anticipated that, except in rare circumstances, the section 504
agency's findings and conclusions as to whether a violation has
occurred will be consistent with those of the EEOC and those of the
Civil Rights Division, as applicable. In order to further promote
consistency and avoid duplication of effort, the rule requires that the
section 504 agency accord due weight to the findings and conclusions of
the EEOC and the Civil Rights Division, as applicable. The term ``due
weight'' is adopted from the title VI/title VII regulation, which is
referenced in section 107(b) of the ADA. 28 CFR part 42, subpart H; 29
CFR part 1691. In giving due weight to the findings and conclusions of
the EEOC or the Civil Rights Division, a section 504 agency shall give
such full and careful consideration to the findings and conclusions as
is appropriate, taking into account such factors as: (i) the extent to
which the underlying investigation is complete and the evidence
supports the findings and conclusions; (ii) the nature and results of
any subsequent proceedings; (iii) the extent to which the findings,
conclusions and any actions taken under title I are consistent with the
effective enforcement of section 504; and (iv) the agency's
responsibilities under section 504.
Moreover, if the agency proposes to take an action that is
inconsistent with such findings and conclusions, the section 504 agency
is required to provide written notification of the action that it
proposes to take and the basis for that action to the Assistant
Attorney General of the Civil Rights Division, the Chairman of the
EEOC, and the head of the EEOC office that processed the complaint or
charge. This is intended to enable the agencies to identify and resolve
any potentially conflicting or inconsistent standards before they are
imposed and to prevent duplication of effort.
What further action the section 504 agency will take will depend on
the EEOC's (or, as appropriate, the Civil Rights Division's) findings,
conclusions, and resolution. This rule contemplates that in most cases
the ``further action'' would be that the section 504 agency would
notify the complainant and the respondent that it is closing its file
based upon the EEOC's resolution of the charge. For example, closure by
the section 504 agency would be the appropriate action when: (i) the
EEOC found no cause and issued a right-to-sue letter, and the section
504 agency agreed with the determination that no violation occurred; or
(ii) the EEOC found cause and the violation was completely remedied
through either a conciliation agreement or litigation, and the section
504 agency agreed that the violation had been remedied.
Section ____.11 EEOC Review of Deferred Charges
Section ____.11 describes the steps that shall be taken when a
section 504 agency processes a dual-filed complaint or charge and the
EEOC defers its processing of the charge. Paragraph (a) of Sec. ____.11
outlines the different ways in which a section 504 complaint may be
resolved. Referral to, and action by, the Civil Rights Division is
included in Sec. ____.11(a) because one of the options available to a
section 504 agency, when it has found a violation and it has not been
able to negotiate a voluntary compliance agreement, is referral to the
Civil Rights Division for judicial enforcement.
Paragraphs (b) and (d) of Sec. ____.11 impose the same types of
obligations on the section 504 agency to notify the EEOC of its
resolution of the complaint and to share with the EEOC any materials
related to the resolution of the complaint that would permit the EEOC
to evaluate the findings, as paragraphs (b) and (d) of Sec. ____.10
impose on the EEOC.
Paragraph (c) of Sec. ____.11 imposes requirements on the EEOC
analogous to those Sec. ____.10(c) imposes on a section 504 agency.
This paragraph contemplates that in most cases the appropriate
``further action'' would be that the EEOC would notify the charging
party and the respondent that it is closing its file based upon the
resolution of the complaint by the section 504 agency, and, where
appropriate, would issue a right-to-sue letter. For example, closure
and issuance of a right-to-sue letter by the EEOC would be the
appropriate action when the section 504 agency found no violation and
the EEOC agreed. Alternatively, closure alone would be appropriate when
the section 504 agency found a violation and the EEOC agreed that the
violation was completely remedied through either a conciliation
agreement, an administrative hearing, or judicial enforcement.
Section ____.12 Standards
In the NPRM, this section addressed the requirement established by
section 107(b) of the ADA to ``[prevent] imposition of inconsistent or
conflicting standards for the same requirements under [title I and
section 504].''
As noted earlier, in order to comply with this statutory mandate,
the NPRM presented two options for the legal standard to be applied by
section 504 agencies in their investigation of complaints that are also
subject to title I, and requested comment as to the appropriate
standard. However, in the period between the publication of the NPRM
and the publication of this final rule, the Rehabilitation Act was
specifically amended to provide that the standards of title I of the
ADA and the provisions of sections 501 through 504, and 510, of the
ADA, as such sections relate to employment, shall be the standards
applied by section 504 agencies in investigating complaints of
employment discrimination. See section 506 of the Rehabilitation Act
Amendments of 1992, Public Law 102-569, 106 Stat. 4344, 4428. The final
rule tracks the language of the amendment.
Section ____.13 Agency Specific Memoranda of Understanding
This section has been newly added to the final rule, to allow
maximum flexibility for the development of agency specific memoranda of
understanding (MOU) that would further serve to minimize duplication of
effort and fully preserve an aggrieved individual's rights under both
statutes. When a section 504 agency amends its regulations to make them
consistent with title I of the ADA, the EEOC and the individual section
504 agency may enter into an MOU providing for the investigation and
processing by the section 504 agency of complaints or charges dual
filed under both section 504 and title I of the ADA by the section 504
agency. Execution of an MOU would be discretionary on the part of both
the EEOC and the particular section 504 agency. Section 504 agencies
that amend their regulations to make them consistent with title I
standards would have, in agreement with the EEOC, the option of acting
as the EEOC's agent for investigating and processing under title I all
complaints covered by both title I and section 504 that are filed with
the section 504 agency. It is contemplated that the terms of the MOU
would be similar to the joint rule implementing section 107(b) as it
pertains to section 503 of the Rehabilitation Act and title I. 29 CFR
part 1641; 41 CFR part 60-742.
Regulatory Process Matters
This rule takes effect immediately, rather than 30 days after
publication, because it solely concerns agency procedure and practice.
This final rule has been drafted in accordance with Executive Order
12866, section 1(b), Principles of Regulation. The Department of
Justice and the Equal Employment Opportunity Commission have determined
that it is not a ``significant regulatory action'' under Executive
Order 12866, section 3(f), Regulatory Planning and Review, and
accordingly this rule has not been reviewed by the Office of Management
and Budget.
Executive Order 12875 prohibits executive departments and agencies
from promulgating any regulation that is not required by statute and
that creates a mandate upon a state, local, or tribal government unless
certain conditions are met. Although the procedures for processing
complaints or charges of employment discrimination established by this
regulation may affect complaints or charges of employment
discrimination filed against such entities, the final rule does not
create any mandates affecting such entities and may, in fact, reduce
any current burden by streamlining the processing of complaints and
charges at the Federal level.
The Attorney General and the Chairman of the EEOC have reviewed
this regulation in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), and by approving it certify that this regulation will
not have a significant economic impact on a substantial number of small
entities.
This final rule does not establish reporting or record-keeping
requirements that are considered to be information collection
requirements as that term is defined by the Office of Management and
Budget in 5 CFR part 1320.
This part will be added to the rules of the Department of Justice
at 28 CFR chapter I as a new part 37, and to the rules of the Equal
Employment Opportunity Commission at 29 CFR chapter XIV as a new part
1640. Since the parts are identical, the text of the joint final rule
is set out only once at the end of the joint preamble. The part
heading, list of subjects, table of contents, and authority citation
for the parts as they will appear in each CFR title follow the text of
the joint rule.
Text of Final Joint Rule
The text of the final joint rule, as adopted by the agencies
specified in this document, appears below:
PART ____--PROCEDURES FOR COORDINATING THE INVESTIGATION OF
COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON
DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND
SECTION 504 OF THE REHABILITATION ACT OF 1973
Sec.
____.1 Purpose and application.
____.2 Definitions.
____.3 Exchange of information.
____.4 Confidentiality.
____.5 Date of receipt.
____.6 Processing of complaints of employment discrimination filed
with an agency other than the EEOC.
____.7 Processing of charges of employment discrimination filed with
the EEOC.
____.8 Processing of complaints or charges of employment
discrimination filed with both the EEOC and a section 504 agency.
____.9 Processing of complaints or charges of employment
discrimination filed with a designated agency and either a section
504 agency, the EEOC, or both.
____.10 Section 504 agency review of deferred complaints.
____.11 EEOC review of deferred charges.
____.12 Standards.
____.13 Agency specific memoranda of understanding.
Sec. ____.1 Purpose and application.
(a) This part establishes the procedures to be followed by the
Federal agencies responsible for processing and resolving complaints or
charges of employment discrimination filed against recipients of
Federal financial assistance when jurisdiction exists under both
section 504 and title I.
(b) This part also repeats the provisions established by 28 CFR
35.171 for determining which Federal agency shall process and resolve
complaints or charges of employment discrimination:
(1) That fall within the overlapping jurisdiction of titles I and
II (but are not covered by section 504); and
(2) That are covered by title II, but not title I (whether or not
they are also covered by section 504).
(c) This part also describes the procedures to be followed when a
complaint or charge arising solely under section 504 or title I is
filed with a section 504 agency or the EEOC.
(d) This part does not apply to complaints or charges against
Federal contractors under section 503 of the Rehabilitation Act.
(e) This part does not create rights in any person or confer agency
jurisdiction not created or conferred by the ADA or section 504 over
any complaint or charge.
Sec. ____.2 Definitions.
As used in this part, the term:
Americans with Disabilities Act of 1990 or ADA means the Americans
with Disabilities Act of 1990 (Pub. L. 101-336, 104 Stat. 327, 42
U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, United States Department of Justice, or
his or her designee.
Chairman of the Equal Employment Opportunity Commission refers to
the Chairman of the United States Equal Employment Opportunity
Commission, or his or her designee.
Civil Rights Division means the Civil Rights Division of the United
States Department of Justice.
Designated agency means any one of the eight agencies designated
under Sec. 35.190 of 28 CFR part 35 (the Department's title II
regulation) to implement and enforce title II of the ADA with respect
to the functional areas within their jurisdiction.
Dual-filed complaint or charge means a complaint or charge of
employment discrimination that:
(1) Arises under both section 504 and title I;
(2) Has been filed with both a section 504 agency that has
jurisdiction under section 504 and with the EEOC, which has
jurisdiction under title I; and
(3) Alleges the same facts and raises the same issues in both
filings.
Due weight shall mean, with respect to the weight a section 504
agency or the EEOC shall give to the other agency's findings and
conclusions, such full and careful consideration as is appropriate,
taking into account such factors as:
(1) The extent to which the underlying investigation is complete
and the evidence is supportive of the findings and conclusions;
(2) The nature and results of any subsequent proceedings;
(3) The extent to which the findings, conclusions and any actions
taken:
(i) Under title I are consistent with the effective enforcement of
section 504; or
(ii) Under section 504 are consistent with the effective
enforcement of title I; and
(4) The section 504 agency's responsibilities under section 504 or
the EEOC's responsibilities under title I.
Equal Employment Opportunity Commission or EEOC refers to the
United States Equal Employment Opportunity Commission, and, when
appropriate, to any of its headquarters, district, area, local, or
field offices.
Federal financial assistance shall have the meaning, with respect
to each section 504 agency, as defined in such agency's regulations
implementing section 504 for Federally- assisted programs.
Program or activity shall have the meaning defined in the
Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394, 29 U.S.C.
794), as amended.
Public entity means:
(1) Any State or local government;
(2) Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and
(3) The National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger Service
Act, 45 U.S.C. 502(8)).
Recipient means any State, political subdivision of any State, or
instrumentality of any State or political subdivision, any public or
private agency, institution, organization, or other entity, or any
individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program,
including any successor, assignee, or transferee thereof, but such term
does not include any ultimate beneficiary under such program.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394, 29 U.S.C. 794), as amended.
Section 504 agency means any Federal department or agency that
extends Federal financial assistance to programs or activities of
recipients.
Title I means title I of the ADA.
Title II means subtitle A of title II of the ADA.
Sec. ____.3 Exchange of information.
The EEOC, section 504 agencies, and designated agencies shall share
any information relating to the employment policies and practices of a
respondent that may assist each agency in carrying out its
responsibilities, to the extent permissible by law. Such information
shall include, but is not limited to, complaints, charges,
investigative files, compliance review reports and files, affirmative
action programs, and annual employment reports.
Sec. ____.4 Confidentiality.
(a) When a section 504 agency or a designated agency receives
information obtained by the EEOC, such agency shall observe the
confidentiality requirements of section 706(b) and section 709(e) of
the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-5(b) and
2000e-8(e)), as incorporated by section 107(a) of the ADA, to the same
extent as these provisions would bind the EEOC, except when the agency
receives the same information from a source independent of the EEOC.
Agency questions concerning the confidentiality requirements of title I
shall be directed to the Associate Legal Counsel for Legal Services,
Office of Legal Counsel, the EEOC.
(b) When the EEOC receives information from a section 504 or a
designated agency, the EEOC shall observe any confidentiality
requirements applicable to that information.
Sec. ____.5 Date of receipt.
A complaint or charge of employment discrimination is deemed to be
filed, for purposes of determining timeliness, on the date the
complaint or charge is first received by a Federal agency with section
504 or ADA jurisdiction, regardless of whether it is subsequently
transferred to another agency for processing.
Sec. ____.6 Processing of complaints of employment discrimination
filed with an agency other than the EEOC.
(a) Agency determination of jurisdiction. Upon receipt of a
complaint of employment discrimination, an agency other than the EEOC
shall:
(1) Determine whether it has jurisdiction over the complaint under
section 504 or under title II of the ADA; and
(2) Determine whether the EEOC may have jurisdiction over the
complaint under title I of the ADA.
(b) Referral to the Civil Rights Division. If the agency determines
that it does not have jurisdiction under section 504 or title II, and
determines that the EEOC does not have jurisdiction under title I, the
agency shall promptly refer the complaint to the Civil Rights Division.
The Civil Rights Division shall determine if another Federal agency may
have jurisdiction over the complaint under section 504 or title II,
and, if so, shall promptly refer the complaint to a section 504 or a
designated agency with jurisdiction over the complaint.
(c) Referral to the EEOC.--(1) Referral by an agency without
jurisdiction. If an agency determines that it does not have
jurisdiction over a complaint of employment discrimination under either
section 504 or title II and determines that the EEOC may have
jurisdiction under title I, the agency shall promptly refer the
complaint to the EEOC for investigation and processing under title I of
the ADA.
(2) Referral by a section 504 agency. (i) A section 504 agency that
otherwise has jurisdiction over a complaint of employment
discrimination under section 504 shall promptly refer to the EEOC, for
investigation and processing under title I of the ADA, any complaint of
employment discrimination that solely alleges discrimination against an
individual (and that does not allege discrimination in both employment
and in other practices or services of the respondent or a pattern or
practice of employment discrimination), unless:
(A) The section 504 agency determines that the EEOC does not have
jurisdiction over the complaint under title I; or
(B) The EEOC has jurisdiction over the complaint under title I, but
the complainant, either independently, or following receipt of the
notification letter required to be sent to the complainant pursuant to
paragraph (c)(2)(ii) of this section, specifically requests that the
complaint be investigated by the section 504 agency.
(ii) Prior to referring an individual complaint of employment
discrimination to the EEOC pursuant to paragraph (c)(2)(i) of this
section (but not prior to making such a referral pursuant to paragraph
(c)(1) of this section), a section 504 agency that otherwise has
jurisdiction over the complaint shall promptly notify the complainant,
in writing, of its intention to make such a referral. The notice letter
shall:
(A) Inform the complainant that, unless the agency receives a
written request from the complainant within twenty days of the date of
the notice letter requesting that the agency retain the complaint for
investigation, the agency will forward the complaint to the EEOC for
investigation and processing; and
(B) Describe the basic procedural differences between an
investigation under section 504 and an investigation under title I, and
inform the complainant of the potential for differing remedies under
each statute.
(3) Referral by a designated agency. A designated agency that does
not have section 504 jurisdiction over a complaint of employment
discrimination and that has determined that the EEOC may have
jurisdiction over the complaint under title I shall promptly refer the
complaint to the EEOC.
(4) Processing of complaints referred to the EEOC. (i) A complaint
referred to the EEOC in accordance with this section by an agency with
jurisdiction over the complaint under section 504 shall be deemed to be
a dual-filed complaint under section 504 and title I. When a section
504 agency with jurisdiction over a complaint refers the complaint to
the EEOC, the section 504 agency shall defer its processing of the
complaint pursuant to Sec. --.10, pending resolution by the EEOC.
(ii) A complaint referred to the EEOC by an agency that has
jurisdiction over the complaint solely under title II (and not under
section 504) will be treated as a complaint filed under title I only.
(iii) Any complaint referred to the EEOC pursuant to this section
shall be processed by the EEOC under its title I procedures.
(d) Retention by the agency for investigation--(1) Retention by a
section 504 agency. A section 504 agency shall retain a complaint for
investigation when the agency determines that it has jurisdiction over
the complaint under section 504, and one or more of the following
conditions are met:
(i) The EEOC does not have jurisdiction over the complaint under
title I; or
(ii) The EEOC has jurisdiction over the complaint, but the
complainant elects to have the section 504 agency process the complaint
and the section 504 agency receives a written request from the
complainant for section 504 agency processing within twenty days of the
date of the notice letter required to be sent pursuant to paragraph
(c)(2)(ii) of this section; or
(iii) The complaint alleges discrimination in both employment and
in other practices or services of the respondent that are covered by
section 504; or
(iv) The complaint alleges a pattern or practice of employment
discrimination.
(2) Retention by a designated agency. A designated agency that does
not have jurisdiction over the complaint under section 504 shall retain
a complaint for investigation when the agency determines that it has
jurisdiction over the complaint under title II of the ADA and that the
EEOC does not have jurisdiction over the complaint under title I.
(3) Processing of complaints retained by an agency. Any complaint
retained for investigation and processing by an agency pursuant to
paragraphs (d)(1) and (d)(2) of this section will be investigated and
processed under section 504, title II, or both, as applicable, and will
not be considered to be dual filed under title I.
Sec. ____.7 Processing of charges of employment discrimination filed
with the EEOC.
(a) EEOC determination of jurisdiction. Upon receipt of a charge of
employment discrimination, the EEOC shall:
(1) Determine whether it has jurisdiction over the charge under
title I of the ADA. If it has jurisdiction, except as provided in
paragraph (b)(2) of this section, the EEOC shall process the charge
pursuant to title I procedures.
(2) If the EEOC determines that it does not have jurisdiction under
title I, the EEOC shall promptly refer the charge to the Civil Rights
Division. The Civil Rights Division shall determine if a Federal agency
may have jurisdiction over the charge under section 504 or title II,
and, if so, shall refer the charge to a section 504 agency or to a
designated agency with jurisdiction over the complaint.
(b) Retention by the EEOC for investigation. (1) The EEOC shall
retain a charge for investigation when it determines that it has
jurisdiction over the charge under title I.
(2) Referral to an agency. Any charge retained by the EEOC for
investigation and processing will be investigated and processed under
title I only, and will not be deemed dual filed under section 504,
except that ADA cause charges (as defined in 29 CFR 1601.21) that also
fall within the jurisdiction of a section 504 agency and that the EEOC
(or the Civil Rights Division, if such a charge is against a
government, governmental agency, or political subdivision) has declined
to litigate shall be referred to the appropriate section 504 agency for
review of the file and any administrative or other action deemed
appropriate under section 504. Such charges shall be deemed complaints,
dual filed under section 504, solely for the purposes of the agency
review and action described in this paragraph. The date of such dual
filing shall be deemed to be the date the complaint was received by the
EEOC.
Sec. ____.8 Processing of complaints or charges of employment
discrimination filed with both the EEOC and a section 504 agency.
(a) Procedures for handling dual-filed complaints or charges. As
between the EEOC and a section 504 agency, except as provided in
paragraph (e) of this section, a complaint or charge of employment
discrimination that is dual filed with both the EEOC and a section 504
agency shall be processed as follows:
(1) EEOC processing. The EEOC shall investigate and process the
charge when the EEOC determines that it has jurisdiction over the
charge under title I and the charge solely alleges employment
discrimination against an individual, unless the charging party elects
to have the section 504 agency process the charge and the section 504
agency receives a written request from the complainant for section 504
agency processing within twenty days of the date of the notice letter
required to be sent pursuant to Sec. ____.6(c)(2)(ii).
(2) Section 504 agency processing. A section 504 agency shall
investigate and process the complaint when the agency determines that
it has jurisdiction over the complaint under section 504, and:
(i) The complaint alleges discrimination in both employment and in
other practices or services of the respondent; or
(ii) The complaint alleges a pattern or practice of discrimination
in employment; or
(iii) In the case of a complaint solely alleging employment
discrimination against an individual, the complainant elects to have a
section 504 agency process the complaint and the section 504 agency
receives a written request from the complainant for section 504 agency
processing within twenty days of the date of the notice letter required
to be sent pursuant to Sec. ____.6(c)(2)(ii).
(b) Referral to the Civil Rights Division. If the EEOC determines
that it does not have jurisdiction under title I, and the section 504
agency determines that it does not have jurisdiction under section 504
or title II, the complaint or charge shall be promptly referred to the
Civil Rights Division. The Civil Rights Division shall determine if
another Federal agency may have jurisdiction over the complaint under
section 504 or title II, and, if so, shall promptly refer the complaint
to a section 504 or a designated agency with jurisdiction over the
complaint.
(c) Procedures for determining whether a complaint or charge has
been dual filed. The EEOC and each agency with jurisdiction to
investigate and process complaints of employment discrimination under
section 504 shall jointly develop procedures for determining whether
complaints or charges of discrimination have been dual filed with the
EEOC and with one or more other agencies.
(d) Notification of deferral. The agency required to process a
dual-filed complaint or charge under this section shall notify the
complainant or charging party and the respondent that the complaint or
charge was dual filed with one or more other agencies and that such
other agencies have agreed to defer processing and will take no further
action except as provided in Sec. ____.10 or Sec. ____.11, as
applicable.
(e) Exceptions. When special circumstances make deferral as
provided in this section inappropriate, the EEOC, and an agency with
investigative authority under section 504, may jointly determine to
reallocate investigative responsibilities. Special circumstances
include, but are not limited to, cases in which the EEOC has already
commenced its investigation at the time that the agency discovers that
the complaint or charge is a dual-filed complaint or charge in which
the complainant has elected section 504 processing, alleged
discrimination in both employment and in other practices or services of
the respondent, or alleged a pattern or practice of employment
discrimination.
Sec. ____.9 Processing of complaints or charges of employment
discrimination filed with a designated agency and either a section 504
agency, the EEOC, or both.
(a) Designated agency processing. A designated agency shall
investigate and process a complaint that has been filed with it and
with the EEOC, a section 504 agency, or both, when either of the
following conditions is met:
(1) The designated agency determines that it has jurisdiction over
the complaint under title II and that neither the EEOC nor a section
504 agency (other than the designated agency, if the designated agency
is also a section 504 agency) has jurisdiction over the complaint; or
(2) The designated agency determines that it has jurisdiction over
the complaint under section 504 and the complaint meets the
requirements for processing by a section 504 agency set forth in
Sec. ____.8(a)(2).
(b) Referral by a designated agency. A designated agency that has
jurisdiction over a complaint solely under title II (and not under
section 504) shall forward a complaint that has been filed with it and
with the EEOC, a section 504 agency, or both, to either the EEOC or to
a section 504 agency, as follows:
(1) If the designated agency determines that the EEOC is the sole
agency, other than the designated agency, with jurisdiction over the
complaint, the designated agency shall forward the complaint to the
EEOC for processing under title I; or
(2) If the designated agency determines that the section 504 agency
is the sole agency, other than the designated agency, with jurisdiction
over the complaint, the designated agency shall forward the complaint
to the section 504 agency for processing under section 504; or
(3) If the designated agency determines that both the EEOC and a
section 504 agency have jurisdiction over the complaint, the designated
agency shall forward the complaint to the EEOC if it determines that
the complaint solely alleges employment discrimination against an
individual, or it shall forward the complaint to the section 504 agency
if it determines that the complaint meets the requirements for
processing by a section 504 agency set out in Sec. ____.8(a)(2)(i) or
(a)(2)(ii).
Sec. ____.10 Section 504 agency review of deferred complaints.
(a) Deferral by the section 504 agency. When a section 504 agency
refers a complaint to the EEOC pursuant to Sec. ____.6(c)(2) or when it
is determined that, as between the EEOC and a section 504 agency, the
EEOC is the agency that shall process a dual-filed complaint or charge
under Sec. ____.8(a)(1) or Sec. ____.8(e), the section 504 agency shall
defer further action until:
(1) The EEOC issues a no cause finding and a notice of right-to-sue
pursuant to 29 CFR 1601.19; or
(2) The EEOC enters into a conciliation agreement; or
(3) The EEOC issues a cause finding and a notice of failure of
conciliation pursuant to 29 CFR 1601.21, and:
(i) If the recipient is not a government, governmental agency, or
political subdivision, the EEOC completes enforcement proceedings or
issues a notice of right-to-sue in accordance with 29 CFR 1601.28; or
(ii) If the recipient is a government, governmental agency, or
political subdivision, the EEOC refers the charge to the Civil Rights
Division in accordance with 29 CFR 1601.29, and the Civil Rights
Division completes enforcement proceedings or issues a notice of right-
to-sue in accordance with 29 CFR 1601.28(d); or
(4) The EEOC or, when a case has been referred pursuant to 29 CFR
1601.29, the Civil Rights Division, otherwise resolves the charge.
(b) Notification of the deferring agency. The EEOC or the Civil
Rights Division, as appropriate, shall notify the agency that has
deferred processing of the charge upon resolution of any dual-filed
complaint or charge.
(c) Agency review. After receipt of notification that the EEOC or
the Civil Rights Division, as appropriate, has resolved the complaint
or charge, the agency shall promptly determine what further action by
the agency is warranted. In reaching that determination, the agency
shall give due weight to the findings and conclusions of the EEOC and
to those of the Civil Rights Division, as applicable. If the agency
proposes to take an action inconsistent with the EEOC's or the Civil
Rights Division's findings and conclusions as to whether a violation
has occurred, the agency shall notify in writing the Assistant Attorney
General, the Chairman of the EEOC, and the head of the EEOC office that
processed the complaint. In the written notification, the agency shall
state the action that it proposes to take and the basis of its decision
to take such action.
(d) Provision of information. Upon written request, the EEOC or the
Civil Rights Division shall provide the section 504 agency with any
materials relating to its resolution of the charge, including its
findings and conclusions, investigative reports and files, and any
conciliation agreement.
Sec. ____.11 EEOC review of deferred charges.
(a) Deferral by the EEOC. When it is determined that a section 504
agency is the agency that shall process a dual-filed complaint or
charge under Sec. ____.8(a)(2) or Sec. ____.8(e), the EEOC shall defer
further action until the section 504 agency takes one of the following
actions:
(1) Makes a finding that a violation has not occurred;
(2) Enters into a voluntary compliance agreement;
(3) Following a finding that a violation has occurred, refers the
complaint to the Civil Rights Division for judicial enforcement and the
Civil Rights Division resolves the complaint;
(4) Following a finding that a violation has occurred, resolves the
complaint through final administrative enforcement action; or
(5) Otherwise resolves the charge.
(b) Notification of the EEOC. The section 504 agency shall notify
the EEOC upon resolution of any dual-filed complaint or charge.
(c) Agency review. After receipt of notification that the section
504 agency has resolved the complaint, the EEOC shall promptly
determine what further action by the EEOC is warranted. In reaching
that determination, the EEOC shall give due weight to the section 504
agency's findings and conclusions. If the EEOC proposes to take an
action inconsistent with the section 504 agency's findings and
conclusions as to whether a violation has occurred, the EEOC shall
notify in writing the Assistant Attorney General, the Chairman of the
EEOC, and the head of the section 504 agency that processed the
complaint. In the written notification, the EEOC shall state the action
that it proposes to take and the basis of its decision to take such
action.
(d) Provision of information. Upon written request, the section 504
agency shall provide the EEOC with any materials relating to its
resolution of the complaint, including its conclusions, investigative
reports and files, and any voluntary compliance agreement.
Sec. ____.12 Standards.
In any investigation, compliance review, hearing or other
proceeding, the standards used to determine whether section 504 has
been violated in a complaint alleging employment discrimination shall
be the standards applied under title I of the ADA and the provisions of
sections 501 through 504, and 510, of the ADA, as such sections relate
to employment. Section 504 agencies shall consider the regulations and
appendix implementing title I of the ADA, set forth at 29 CFR part
1630, and case law arising under such regulations, in determining
whether a recipient of Federal financial assistance has engaged in an
unlawful employment practice.
Sec. ____.13 Agency specific memoranda of understanding.
When a section 504 agency amends its regulations to make them
consistent with title I of the ADA, the EEOC and the individual section
504 agency may elect to enter into a memorandum of understanding
providing for the investigation and processing of complaints dual filed
under both section 504 and title I of the ADA by the section 504
agency.
Adoption of the Joint Final Rule
The agency-specific adoption of the joint final rule, which appears
at the end of the joint preamble, appears below:
Title 28--Judicial Administration Department of Justice
28 CFR Part 37
List of Subjects in 28 CFR Part 37
Administrative practice and procedure, Individuals with
disabilities, Equal employment opportunity, Intergovernmental
relations.
Accordingly, title 28, chapter I of the Code of Federal Regulations
is amended as set forth below.
Signed at Washington, D.C. this 26th day of July, 1994.
For the Department:
Janet Reno,
Attorney General.
Part 37 is added to 28 CFR chapter I to read as set forth at the
end of the joint preamble.
PART 37--PROCEDURES FOR COORDINATING THE INVESTIGATION OF
COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON
DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND
SECTION 504 OF THE REHABILITATION ACT OF 1973
Sec.
37.1 Purpose and application.
37.2 Definitions.
37.3 Exchange of information.
37.4 Confidentiality.
37.5 Date of receipt.
37.6 Processing of complaints of employment discriminationfiled
with an agency other than the EEOC.
37.7 Processing of charges of employment discrimination filed with
the EEOC.
37.8 Processing of complaints or charges of employment
discrimination filed with both the EEOC and a section 504 agency.
37.9 Processing of complaints or charges of employment
discrimination filed with a designated agency and either a section
504 agency, the EEOC, or both.
37.10 Section 504 agency review of deferred complaints.
37.11 EEOC review of deferred charges.
37.12 Standards.
37.13 Agency specific memoranda of understanding.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 794 (d);
42 U.S.C. 12117(b); 28 CFR 0.50(l).
Title 29--Labor
Equal Employment Opportunity Commission
29 CFR Part 1640
List of Subjects in 29 CFR Part 1640
Administrative practice and procedure, Individuals with
disabilities, Equal employment opportunity, Intergovernmental
relations.
Accordingly, title 29, chapter XIV of the Code of Federal
Regulations is amended as set forth below.
Signed at Washington, DC this 27th day of June, 1994.
For the Commission:
Tony E. Gallegos,
Chairman.
Part 1640 is added to 29 CFR chapter XIV to read as set forth at
the end of the joint preamble.
PART 1640--PROCEDURES FOR COORDINATING THE INVESTIGATION OF
COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON
DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND
SECTION 504 OF THE REHABILITATION ACT OF 1973
Sec.
1640.1 Purpose and application.
1640.2 Definitions.
1640.3 Exchange of information.
1640.4 Confidentiality.
1640.5 Date of receipt.
1640.6 Processing of complaints of employment discrimination filed
with an agency other than the EEOC.
1640.7 Processing of charges of employment discrimination filed
with the EEOC.
1640.8 Processing of complaints or charges of employment
discrimination filed with both the EEOC and a section 504 agency.
1640.9 Processing of complaints or charges of employment
discrimination filed with a designated agency and either a section
504 agency, the EEOC, or both.
1640.10 Section 504 agency review of deferred complaints.
1640.11 EEOC review of deferred charges.
1640.12 Standards.
1640.13 Agency specific memoranda of understanding.
Authority: 5 U.S.C. 301; 29 U.S.C. 794(d); 42 U.S.C. 12117(b).
[FR Doc. 94-18935 Filed 8-3-94; 8:45 am]
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