Federal Register / Vol. 80, No. 25 / Friday, February 6, 2015 / Proposed Rules 6669 

■ 14. Revise § 213.6 to read as follows: 

§ 213.6 Information concerning 

assistance. 

Any person may contact the Office 

with questions regarding eligibility for 

technical assistance. Summaries of the 

trade laws and the SBA size standards 

can be obtained by writing to the Trade 

Remedy Assistance Office, U.S. 

International Trade Commission, 500 E 

Street SW., Washington, DC 20436. 

Information is also provided on the 

Commission’s Web site at http://

www.usitc.gov. 

By order of the Commission. 

Issued: February 2, 2015. 

Lisa R. Barton, 

Secretary to the Commission. 

[FR Doc. 2015–02388 Filed 2–5–15; 8:45 am] 

BILLING CODE 7020–02–P 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Part 1614 

RIN 3046–AB00 

Federal Sector Equal Employment 

Opportunity 

AGENCY: Equal Employment 

Opportunity Commission. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: The Equal Employment 

Opportunity Commission (‘‘EEOC’’ or 

‘‘Commission’’) is issuing an Advance 

Notice of Proposed Rulemaking 

(‘‘ANPRM’’) inviting the public to 

submit comments regarding the Federal 

sector EEO complaint process. The 

Commission primarily is interested in 

suggestions that will make the process 

more efficient and user-friendly, and 

more effective in identifying and 

redressing prohibited employment 

discrimination. 

DATES: Comments and suggestions in 

response to the Advance Notice of 

Proposed Rulemaking must be received 

on or before April 7, 2015. 

ADDRESSES: You may submit comments, 

identified by RIN Number, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: (202) 663–4114. (There is no 

toll free FAX number). Only comments 

of six or fewer pages will be accepted 

via FAX transmittal, in order to assure 

access to the equipment. 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) 663– 

4070 (voice) or (202) 663–4074 (TTY). 

(These are not toll free numbers). 

• Mail: Bernadette Wilson, Acting 

Executive Officer, Executive Secretariat, 

Equal Employment Opportunity 

Commission, U.S. Equal Employment 

Opportunity Commission, 131 M Street 

NE., Washington, DC 20507. 

• Hand Delivery/Courier: Bernadette 

Wilson, Acting Executive Officer, 

Executive Secretariat, 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 agency name and the Regulatory 

Information Number (RIN) for this 

ANPRM. Comments need be submitted 

in only one of the above-listed methods. 

All comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal information you provide. 

Comments: For access to the 

comments received, go to http://

www.regulations.gov. Copies of the 

received comments also will be 

available for review by pre-arranged 

appointment at the Commission’s 

library, 131 M Street NE., Suite 

4NW08R, Washington, DC 20507, 

between the hours of 9:30 a.m. and 5 

p.m., from April 7, 2015 until the 

Commission publishes a Notice of 

Proposed Rulemaking (‘‘NPRM’’) 

addressing the Federal sector EEO 

complaint process. 

FOR FURTHER INFORMATION CONTACT: 

Thomas J. Schlageter, Assistant Legal 

Counsel, (202) 663–4668, or Gary John 

Hozempa, Senior Staff Attorney, (202) 

663–4666, or (202) 663–7026 (TTY), 

Office of Legal Counsel, U.S. Equal 

Employment Opportunity Commission. 

(These are not toll free numbers). 

Requests for this advance notice in an 

alternative format should be made to the 

Office of Communications and 

Legislative Affairs at (202) 663–4191 

(voice) or (202) 663–4494 (TTY). (These 

are not toll free numbers). 

SUPPLEMENTARY INFORMATION: As 

discussed more fully below, Federal 

sector EEO complaint processing 

procedures did not originate with EEOC 

in 1979, when EEOC was given 

oversight authority over the Federal 

sector EEO process. Rather, formal, 

regulatory procedures first were 

promulgated by the Civil Service 

Commission (‘‘CSC’’) in 1966, codified 

at 5 CFR part 713, and the basic 

framework contained in those 

procedures was adopted by EEOC in 

1979. Although EEOC has revised the 

procedures a number of times, the 

original structure inherited from the 

CSC—counseling, complaint, 

investigation, hearing, final agency 

action, and appeal—remains. 

The CSC’s complaint processing 

scheme was not created in a vacuum. 

Rather, the CSC developed its 

procedures based on those established 

in a series of Executive Orders issued by 

Presidents Roosevelt through Nixon. 

The first administrative system for 

resolving Federal sector EEO complaints 

was created in Executive Order (‘‘E.O.’’) 

8802 (June 25, 1941). Among other 

things, U.S. agencies involved in 

‘‘defense production’’ were ordered to 

administer their programs ‘‘without 

discrimination because of race, creed, 

color, or national origin.’’ The Order, as 

amended by E.O. 9346 (May 27, 1943), 

established a Committee on Fair 

Employment Practice whose function 

was to formulate policy, promulgate 

rules and regulations, investigate EEO 

complaints and make findings of fact, 

conduct hearings, and provide relief 

when appropriate. As can be seen, many 

of the element’s in today’s Federal 

sector EEO complaint process were 

created more than 70 years ago. 

E.O. 9980 (July 26, 1948) expanded 

the reach of the Federal Government’s 

EEO policy to include ‘‘all departments 

and agencies of the executive branch 

. . .’’ The Order created within each 

agency the position of ‘‘Fair 

Employment Officer’’ (‘‘FEO’’), the 

precursor to today’s Director of Equal 

Employment Opportunity (‘‘EEO 

Director’’). The E.O. also introduced an 

appeal stage, wherein a complainant 

could appeal the decision of the agency 

head to the Fair Employment Board 

(‘‘Board’’) of the CSC. The Board was 

empowered to ‘‘make 

recommendations’’ to the agency head. 

The Board also was given the authority 

to promulgate ‘‘necessary’’ rules and 

regulations and coordinate EEO policies 

and procedures among the agencies. 

Over the next 20 years, the CSC’s 

authority over the Federal sector EEO 

process was modified by subsequent 

Presidents. E.O. 10590 (January 18, 

1955), as amended, explicitly 

superseded E.O. 9980, abolished the 

CSC’s Board, and replaced it with a 

‘‘President’s Committee.’’ The position 

of FEO was replaced with an 

‘‘Employment Policy Officer,’’ who, like 

a current EEO Director, is ‘‘outside of 

the division handling the personnel 

matters of the . . . agency’’ and ‘‘under 

the immediate supervision of the head 

of his department or agency.’’ A 

complainant could appeal an agency 

final decision to the President’s 

Committee, which could issue an 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
6670 Federal Register / Vol. 80, No. 25 / Friday, February 6, 2015 / Proposed Rules 

1E.O. 11375 (October 13, 1967) added sex as a 

prohibited basis. 

2 In subsequent Executive Orders, additional 

bases of discrimination were added to E.O. 11478: 

handicap and age (E.O. 12106 (December 28, 1978)); 

sexual orientation (E.O. 13087 (May 28, 1998)); 

status as a parent (E.O. 13152 (May 2, 2000)); and, 

gender identity (E.O. 13672 (July 21, 2014)). 

3Although E.O. 12106 revised E.O. 11478 to 

eliminate the counseling and informal resolution 

language of E.O. 11478, EEOC chose not to drop 

these components when it adopted the CSC 

regulations. 

advisory opinion. The CSC retained the 

authority to issue ‘‘necessary’’ 

regulations. 

E.O. 11246 (September 24, 1965), as 

amended, explicitly superseded all 

previous E.O.’s regarding the Federal 

sector EEO process and returned 

oversight authority to the CSC. In 

addition, the CSC was directed to 

establish a complaint processing 

procedure that included ‘‘at least one 

impartial review with the executive 

department or agency and [an] appeal to 

the Civil Service Commission.’’ 1 In 

response, and as noted above, the CSC 

issued its first formal complaint 

processing regulations in 1966. 

Selectively adopting procedures from 

the various E.O.’s, CSC’s regulations 

required that a complaint be filed with 

and investigated by the agency alleged 

to have engaged in discrimination, that 

an agency offer the complainant a 

hearing, and that the agency issue a 

final decision on the complaint. A 

complainant could appeal an agency’s 

final decision to the CSC. E.O. 11478 

(August 8, 1969) directed agencies to 

‘‘provide access to counseling for 

employees who feel aggrieved and shall 

encourage the resolution of employee 

problems on an informal basis.’’ 2 Thus, 

CSC revised its regulations to include 

counseling and informal resolution. 

In 1972, the Equal Opportunity Act of 

1972 was enacted, amending Title VII of 

the Civil Rights Act of 1964. New 

section 717(a) provided that ‘‘all 

personnel actions affecting employees 

or applicants for employment’’ in the 

executive branch (with some exclusions 

and additions) ‘‘shall be free from any 

discrimination based on race, color, 

religion, sex, or national origin.’’ 

Importantly, section 717(c) gave Federal 

employees the right to file de novo suit 

in Federal court once administrative 

remedies had been exhausted. While the 

Act was being debated, some members 

of Congress criticized the CSC’s 

administrative EEO complaint process, 

noting the conflict of interest inherent 

in an agency investigating itself and 

determining whether it had engaged in 

prohibited discrimination, and the lack 

of confidence Federal employees had in 

its effectiveness. See S. Rpt. 92–416 at 

14, H. Rpt. 92–238 at 23–24. The Senate 

Report stated that ‘‘[o]ne feature of the 

present equal employment opportunity 

program which deserves special 

scrutiny by the Civil Service 

Commission is the complaint process.’’ 

Furthermore, one version of section 

717(b) transferred administrative 

oversight of the Federal sector EEO 

complaint process from the CSC to 

EEOC. The final bill, however, retained 

oversight authority in the CSC. In 

October 1972, the CSC revised its 

regulations at 5 CFR part 713, adding 

provisions to reflect that a Federal 

complainant who had filed an 

administrative EEO complaint had the 

right to file a civil action in an 

appropriate United States District Court. 

The Civil Service Reform Act of 1978 

abolished the CSC and created in its 

place the Office of Personnel 

Management. The Act also created the 

Merit Systems Protection Board 

(‘‘MSPB’’), the Federal Labor Relations 

Authority, and the Office of Special 

Counsel. Pursuant to the Reform Act, 

Reorganization Plan No. 1 of 1978, and 

E.O. 12106 (December 28, 1978), the 

CSC’s functions under section 717 of 

Title VII were transferred to EEOC 

effective January 1, 1979. At the same 

time, EEOC was given enforcement 

responsibility regarding the provisions 

applicable to Federal employees 

contained in the Equal Pay Act of 1963, 

the Age Discrimination in Employment 

Act of 1967, and the Rehabilitation Act 

of 1973. 

Pursuant to E.O. 12106, EEOC was 

made ‘‘responsible for directing and 

furthering the implementation of the 

Policy of the Government of the United 

States to provide equal employment 

opportunity in Federal employment for 

all employees and applicants for 

employment * * * and to prohibit 

discrimination in employment because 

of race, color, religion, sex, national 

origin, handicap, or age.’’ The Order 

directed EEOC, ‘‘after consultation with 

all affected departments and agencies,’’ 

to ‘‘issue such rules, regulations, orders, 

and instructions and request such 

information from the affected 

departments and agencies as it deems 

necessary and appropriate to carry out 

[E.O. 12106].’’ 

At the time of the transfer of functions 

from the CSC to EEOC, EEOC adopted 

CSC’s complaint processing procedures, 

only making changes to reflect EEOC’s 

oversight authority. Thus, for example, 

an administrative hearing was held 

before an EEOC ‘‘Complaints Examiner’’ 

(now referred to as an Administrative 

Judge (‘‘AJ’’)), and a complainant could 

appeal an agency final decision to 

EEOC’s ‘‘Office of Review and Appeals’’ 

(now called the Office of Federal 

Operations). Thus, CSC’s basic 

complaint processing structure— 

counseling, filing of complaint with the 

agency accused of discrimination, 

investigation of the complaint by that 

agency, a hearing at complainant’s 

request, an agency final decision, and an 

optional appeal—remained intact.3

EEOC’s regulations were codified at 

29 CFR part 1613. EEOC amended part 

1613 in 1980 to authorize agencies to 

award attorney’s fees and costs to 

prevailing complainants. In 1983, EEOC 

and the MSPB added mixed case 

complaint procedures to their respective 

regulations, at 29 CFR part 1613 and 5 

CFR part 1201, respectively. 

In 1987, EEOC enacted additional, 

minor revisions to part 1613. Among 

other things, a provision was added 

requiring an agency to notify an 

aggrieved person of the election of 

remedies pertaining to filing an EEO 

complaint, an appeal with MSPB, or a 

grievance under a collective bargaining 

agreement. Official time for 

complainants to prepare and pursue 

complaints was addressed. The EEOC’s 

then private sector policy statement on 

remedies and relief was incorporated 

into the Federal sector process. 

In 1992, EEOC issued a final rule 

abolishing 29 CFR part 1613 (except 

with respect to complaints filed before 

a certain date), and replaced it with 29 

CFR part 1614. While EEOC made 

significant changes to many parts of the 

complaint process, the basic structure 

inherited from the CSC remained. 

In 1995, EEOC established a Federal 

Sector Workgroup which evaluated the 

complaint process and made numerous 

recommendations for reform. The 

Commission published a Notice of 

Proposed Rulemaking in 1998, 

proposing many of the Workgroup 

recommendations, including requiring 

alternative dispute resolution 

(hereinafter ‘‘ADR’’) during the 

counseling and investigative stages, and 

making an AJ decision final. In their 

comments, agencies contended that 

EEOC could not make an AJ decision 

final because section 717 of Title VII 

gives an agency the right to take final 

action on an administrative EEO 

complaint. Consequently, the Final 

Rule, published in 1999, while retaining 

the ADR requirements, provided an 

agency with the opportunity to issue a 

notice of final action after receiving an 

AJ decision. That final action was not 

termed a decision, but it allowed an 

agency to indicate whether it would 

fully implement the decision of the AJ. 

If not, the agency was required to file an 

appeal with EEOC. 


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Federal Register / Vol. 80, No. 25 / Friday, February 6, 2015 / Proposed Rules 6671 

EEOC established another Federal 

Sector Workgroup in 2004, again to 

consider ways in which to improve the 

Federal sector EEO complaint process. 

The Workgroup failed to reach internal 

consensus for large scale revisions, but 

did reach agreement on several discrete 

changes that clarified and built upon the 

improvements made by the last major 

revisions in 1999. The resulting final 

rule was published on July 25, 2012. See 

77 FR 43498. One revision authorizes 

EEOC, after it reviews an agency 

program for compliance with EEOC 

rules and directives, to issue a notice to 

an agency when non-compliance is 

found and not corrected. Another 

revision allows an agency to seek 

approval from EEOC to conduct a 

complaint processing pilot project. An 

AJ’s decision on the merits of a class 

complaint was made final in the revised 

regulation, which meant that an agency 

could implement it or appeal. 

Additionally, there is now a provision 

which requires an agency that has not 

completed its investigation of a 

complaint in a timely manner to notify 

the complainant that the investigative 

period has expired and that, as a result, 

the complainant has an immediate right 

to request a hearing or file a civil action. 

As previously noted, although the 

Federal sector EEO complaint process 

has undergone various permutations 

over the last seven decades, certain 

procedures, once introduced, have 

remained. The Truman administration, 

for example, introduced agency selfinvestigation and the opportunity to 

appeal an agency decision to an outside 

entity. The Eisenhower administration 

created the hearing and required an 

agency to appoint an EEO Officer who 

worked outside the personnel office and 

was under the immediate supervision of 

the agency head. Under President 

Nixon, pre-complaint counseling was 

established. Thus, when the CSC issued 

its last regulations in 1972, the Federal 

sector complaint process consisted of a 

combination of requirements first 

introduced in the various Executive 

Orders and certain rights provided by 

section 717 of Title VII. 

In this regard, when most of the 

Executive Orders discussed above were 

issued, EEOC either did not exist or did 

not have oversight authority for the 

Federal sector. Questions that the 

Commission wishes the public to 

explore and answer in response to this 

ANPRM are as follows: 

1. If EEOC were to create a new 

Federal sector EEOC complaint process, 

what current elements would you retain 

or remove, and what new elements 

would you introduce? 

a. With respect to a current element 

you believe should be retained, in what 

way does that element provide value, 

efficiency, or fairness? 

b. With respect to a current element 

you believe should be removed, how 

will its removal improve the process for 

the complainant, the agency, or both? 

c. With respect to a new element, why 

should it be included, and how will it 

improve the process for the 

complainant, the agency, or both? 

2. Should the process include an 

investigative stage? 

a. Should agency personnel 

investigate complaints filed against the 

agency? 

b. Should agencies pick from a pool 

of investigators made up of in-house 

personnel from various agencies so that 

no agency is investigated by one of its 

own investigators? 

c. Should investigators employed by 

EEOC conduct all investigations, similar 

to the process EEOC uses when an 

aggrieved individual from the private 

sector files a charge of employment 

discrimination with EEOC? 

3. Should the hearing stage be 

retained? 

a. If the hearing stage is retained as a 

matter of right, should the 

administrative hearing take place after 

an investigation? 

b. If there is a hearing, should the 

hearing be a continuation of the 

investigative process, as it is now, or 

should the hearing be adversarial in 

nature, such as those conducted by the 

MSPB? 

c. Should there be a hearing as of right 

only as an alternative to an 

investigation? 

d. Should a hearing always be 

discretionary, and if so, at whose 

discretion? 

4. What time limits should be 

imposed at various stages of the 

process? 

a. How many days should a 

complainant have to contact a counselor 

from the date of the alleged 

discriminatory matter? 

b. How many days should a 

complainant have to file a complaint 

following the conclusion of counseling? 

c. If there is an investigative stage, 

within how many days should the 

investigation be completed? 

d. How many days should a 

complainant and agency have to file an 

appeal from an agency final action? 

5. What standard of review should 

apply when EEOC considers an appeal? 

a. What standard of review should 

apply when there is a hearing decision? 

b. What standard of review should 

apply when there is only an agency 

decision? 

6. How can the Commission continue 

to enhance its ability to ensure agencies’ 

compliance with Federal sector equal 

employment opportunity requirements 

and the Federal sector EEO complaint 

process? 

a. For example, pursuant to 29 CFR 

1614.102(e), should the EEOC conduct 

Commission meetings from time to time 

to review agencies’ compliance efforts? 

b. Also, for example, as part of the 

complaint process, should the 

Commissioners from time to time hear 

arguments on appeals from final agency 

actions? 

c. What value would these and any 

other related ideas bring to the Federal 

sector complaint process? 

7. When discrimination is found, 

what enforcement mechanisms can 

EEOC use to ensure agency compliance? 

The above questions are not meant to 

be exhaustive and, in fact, only touch 

upon the many issues and stages of the 

current complaint process. Therefore, 

EEOC is interested in any ideas and 

comments regarding all aspects of the 

process. In this regard, EEOC will 

consider comments that advocate 

abolition of all or part of the current 

system coupled with ideas for a 

replacement system, as well as 

comments from those who believe that 

only a few changes are necessary in 

order to improve the Federal sector 

complaint process. 

In drafting comments, stakeholders 

and other members of the public should 

keep in mind the requirements imposed 

by section 717 of Title VII, which 

cannot be altered or discarded. This 

means for example, that any 

administrative process must include 

agency final action on a complaint and 

the opportunity for a complainant to 

appeal the agency’s final action to 

EEOC. Additionally, a complainant’s 

right to file a civil action and the time 

limits applicable to that right cannot be 

changed. Comments advocating that 

EEOC retain any non-mandated feature 

of the current process should be based 

on a fresh assessment of the extent to 

which that element has served to 

advance the policy goals and purposes 

of the EEO statutes. 

For the Commission, 

Dated: January 30, 2015. 

Jenny R. Yang, 

Chair. 

[FR Doc. 2015–02330 Filed 2–5–15; 8:45 am] 

BILLING CODE 6570–01–P 


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