AGENCY:

Equal Employment Opportunity Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Equal Employment Opportunity Commission (EEOC or Commission) is proposing to amend its existing regulations by which state and local government employees who were previously exempt from coverage under Title VII of the Civil Rights Act of 1964 may bring claims of employment discrimination pursuant to the Government Employee Rights Act of 1991. The EEOC proposes to amend the regulations to explicitly provide for digital transmission of documents, to update the regulation based upon the text of other regulations or statutes, and to make a number of editorial revisions to improve clarity and correct errors.

DATES:

Comments on the notice of proposed rulemaking must be received on or before July 18, 2023.

ADDRESSES:

You may submit comments, identified by RIN Number 3046–AB09, by any of the following methods—please use only one method:

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

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

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

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

Instructions: The Commission invites comments from all interested parties. All comment submissions must include the Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide.

Docket: For access to comments received, go to https://www.regulations.gov. Copies of the received comments also will be available for review at the Commission's library, 131 M Street NE, Suite 4NW08R, Washington, DC 20507, between the hours of 9:30 a.m. and 5 p.m., from July 18, 2023 until the Commission publishes the rule in final form. You must make an appointment with library staff to review the comments in the Commission's library.

FOR FURTHER INFORMATION CONTACT:

Kathleen Oram, Assistant Legal Counsel, at (202) 921–2665 or kathleen.oram@eeoc.gov, or Erin Norris, Senior Attorney, Office of Legal Counsel, at (980) 296–1286 or erin.norris@eeoc.gov. Requests for this notice in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 921–3191 (voice), (800) 669–6820 (TTY), or (844) 234–5122 (ASL Video Phone).

SUPPLEMENTARY INFORMATION:

Title III of the Civil Rights Act of 1991, entitled the Government Employee Rights Act of 1991 (GERA), extends protections against employment discrimination based on race, color, religion, sex, national origin, age and disability to previously exempt state and local government employees. 42 U.S.C. 2000e–16c. In addition to providing these protections against discrimination, section 304 of GERA empowered the Equal Employment Opportunity Commission to address complaints filed by GERA-covered employees. GERA afforded previously exempt individuals new equal employment opportunity protections, and it introduced an administrative enforcement mechanism that was different from EEOC's pre-existing charge resolution procedures. Consequently, EEOC created procedures in 29 CFR part 1603 for handling complaints brought by individuals covered by GERA. The interim rule setting out these procedures was published at 62 FR 17542 (April 10, 1997) and the final rule was published at 64 FR 28743 (May 27, 1999). Pursuant to its authority under 42 U.S.C. 2000e–12 to “amend . . . suitable procedural regulations to carry out the provisions of this subchapter,” the EEOC now proposes to revise those regulations as described in this document.

Digital Submission of Documents

Proposed revisions to §§ 1603.102, 106, 208, 209, and 302 update the regulations to allow for digital submission of documents. Since last revising this regulation, the EEOC has expanded its use of technology in charge and complaint processing. The Commission has implemented a digital system for charges and complaints of discrimination filed with the EEOC. The system enables the EEOC, charging parties and complainants, and respondents against whom charges or complaints are filed to communicate and transmit documents digitally through a secure online portal. It allows potential charging parties and complainants to submit online inquiries to the EEOC and to schedule intake interviews through the online system. In addition, in some cases the EEOC allows parties to submit information to agency personnel through email. While parties may continue to submit information using other methods, digital submission of documents through the online system is the preferred method.

Other Regulations and Statutes

The proposed revisions also include a few changes to citations to other regulations or statutes, as well as cross-references to sections within part 1603. In § 1603.108, an incorrect statutory citation was corrected, and in §§ 1603.102, 107, 301, and 303, references to other EEOC regulations and cross-references to sections in part 1603 were added, updated, or corrected.

Further, in § 1603.107 the EEOC proposes to remove two paragraphs that are substantively analogous to paragraphs removed in 2008 from the agency's procedural charge processing regulations in 29 CFR 1601.18. This proposed removal of the language from part 1603 would standardize the EEOC's various procedural regulations. The paragraphs in question state that the Commission may dismiss a GERA complaint if the complainant cannot be located or if the complainant fails to provide information, appear for interviews, or otherwise cooperate with the agency. When similar language was removed from part 1601 in 2008, the agency noted that removing the language would bring part 1601 in line with the agency's procedural regulations governing the Age Discrimination in Employment Act and the Equal Pay Act, which do not contain the dismissal bases of failure to cooperate or failure to locate. Additionally, the agency noted in 2008 that the language had resulted in dismissals of private lawsuits when courts determined that the plaintiffs had not satisfied all prerequisites for filing suit; some courts held that having one's charge dismissed for failure to cooperate with the EEOC's investigation equated to failure to exhaust one's administrative remedies. The Commission did not intend to cause Federal court dismissals or to impose on charging parties any additional prerequisites to suit. For these reasons, the EEOC now proposes to remove the paragraphs addressing failure to locate a complainant and failure of a complainant to cooperate with the EEOC from § 1603.107. This proposed revision is not intended to limit the Commission's discretion to dismiss complaints on these or other grounds where appropriate.

Finally, the EEOC proposes to revise § 1603.215(a) to reflect that transcripts of hearings before administrative law judges are available to the parties. The regulations now incorrectly state that the transcripts are available to the public as well; however, this statement conflicts with section 556 of the Administrative Procedure Act (APA), which states that a transcript shall be made available “to the parties.” ^[1] The revision corrects this error and ensures that GERA complaints are processed in accordance with APA procedures, as GERA requires.

Other Clarifying Changes

The EEOC proposes to revise § 1603.207(c) to change the time for response to a motion to intervene from 15 days to 10 business days. Other responses to motions filed pursuant to part 1603 must be filed within 10 business days of service of the motion; this change is meant to standardize the deadline within part 1603. The EEOC also proposes to revise § 1603.302 by adding a paragraph requiring service on the opposing party of appeals taken under part 1603. Additionally, a number of minor grammatical, punctuation, and other editorial changes were made throughout this part.

Regulatory Procedures

Executive Order 12866

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

Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden. This proposed rule contains no new information collection requirements for the public, and therefore it will create no new paperwork burdens or modifications to existing burdens that are subject to review by the Office of Management and Budget under the PRA.

Regulatory Flexibility Act

The Commission certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities because it does not affect any small business entities. The regulation affects only certain employees of state or local governments. For this reason, a regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

This proposed rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. To the extent that it affects small governments by allowing for digital transmission of documents, it will save resources of those entities. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This proposed rule is not a “rule” under the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996) because the Congressional Review Act only applies to final rules. Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

List of Subjects in 29 CFR Part 1603

• Administrative practice and procedure
• Equal employment opportunity
• Intergovernmental relations
• Investigations
• State and local governments

Accordingly, for the reasons set forth in the preamble, the Equal Employment Opportunity Commission proposes to amend 29 CFR part 1603 as follows:

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

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

Authority: 42 U.S.C. 2000e–12 and –16c; 42 U.S.C. 2000ff–6(b).

2. Amend § 1603.102:

a. By revising paragraphs (a), (b), the introductory text of paragraph (c), (c)(1), (c)(2), (c)(4), and the last sentence of paragraph (d); and

b. In paragraph (e), in the first sentence, by removing the commas.

The revisions read as follows:

3. Amend § 1603.103(b) by removing the comma.

4. Revise § 1603.106 to read as follows:

5. Amend § 1603.107:

a. By revising paragraph (a);

b. By removing paragraphs (b) and (c); and

c. By redesignating paragraphs (d) and (e) as paragraphs (b) and (c) and revising newly redesignated paragraphs (b) and (c).

The revisions read as follows:

6. Amend § 1603.108:

a. In paragraph (c), by adding a comma after the words “employees of the Commission”; and

b. In paragraph (d), by removing the number “584” and adding in its place the number “574”.

7. Amend § 1603.109:

a. In paragraph (a), by adding the word “an” before the word “investigation” and by adding a comma after the word “visits”; and

b. In paragraph (b), in the first sentence, by adding a comma after the words “the production of evidence”.

8. Amend § 1603.201:

a. In paragraph (a), by adding a comma after the words “of this section or”;

b. In paragraph (c), by removing the words “representatives or witnesses” and adding in their place the words “representatives, and their witnesses”.

9. Amend § 1603.202:

a. In paragraph (a), by adding a comma after the word “place”; and

b. By revising paragraph (b) to read as follows:

10. Amend § 1603.203:

a. By revising paragraphs (a) and (b); and

b. By removing paragraph (c).

The revisions read as follows:

11. Amend § 1603.204:

a. By revising the last sentence of paragraph (a); and

b. By revising paragraphs (b) and (d).

The revisions read as follows:

12. Amend § 1603.205(b) by removing the comma after the words “in the adjudication”.

13. Amend § 1603.206:

a. In paragraph (a), in the first sentence, by removing the words “his or her” and adding in their place the words “the administrative law judge's”, by removing the comma after the words “common parties”, and by adding the word “common” before the word “factual”; and

b. In paragraph (b), by removing the words “his or her” and adding in their place the words “the administrative law judge's” and by adding a comma after the word “claims”.

14. Amend § 1603.207:

a. In paragraph (b), by adding the word “relevant” before the words “facts or reasons”; and

b. In paragraph (c), by removing the words “15 days after the filing” and adding in their place the words “10 business days after service”.

15. Amend § 1603.208:

a. In paragraph (b), in the first sentence, by removing the words “ten (10)” and adding in their place the number “10”, and in the last sentence, by removing the words “judge, in his or her discretion, orders” and adding in their place the words “judge exercises discretion to order”;

b. In paragraph (c), in the third sentence, by adding the words “or other digital means” after the word “telephone”, and in the last sentence, by removing the words “five (5)” and adding in their place the number “5”, and by adding a comma after the word “vacate”; and

c. In paragraph (d), by removing the words “dilatory, repetitive or frivolous motions” and adding in their place the words “motions that are repetitive, frivolous, or intended to delay the proceedings”.

16. Revise § 1603.209 to read as follows:

17. Amend § 1603.210(b) by adding a comma after the word “admission”.

18. Amend § 1603.211:

a. In paragraph (a), in the last sentence, by adding the word “state” before the words “the date and time”; and

b. In paragraph (b), in the second sentence, by adding the word “also” before the words “be served upon”.

19. Amend § 1603.213:

a. In paragraph (a) introductory text, by adding the words “either independently or” before the words “upon motion of a party”, and by removing the words “or upon his or her own motion”;

b. In paragraph (a)(2), by removing the word “ruling” and adding in its place the word “appeal”, and by removing the word “or” and adding in its place the word “and”;

c. In paragraph (a)(3), by removing the word “ruling” and adding in its place the word “appeal”;

d. In paragraph (b) introductory text, by removing the words “ten (10)” and adding in their place the number “10”; and

e. In paragraph (c), in the last sentence, by removing the comma after the word “judge” and by removing the words “within his or her discretion,”.

20. Amend § 1603.214 by adding the word “that” before the words “the rules on hearsay”.

21. Amend § 1603.215:

a. In paragraph (a), in the first sentence, by removing the words “mechanically or stenographically reported” and adding in their place the words “audio or video recorded, stenographically reported, or both” and in the last sentence, by removing the words “and the public”; and

b. In paragraph (b), by removing a comma after the words “upon motion” and by removing the words “ten (10)” and adding in their place the number “10”.

22. Amend § 1603.217(b), in the last sentence, by adding a semicolon after the word “discovery”.

23. Amend § 1603.301 by removing the citation “§ 1613.213” and adding in its place the citation “§ 1603.213”.

24. Amend § 1603.302:

a. By revising paragraph (b); and

b. By adding a new paragraph (c).

The revisions read as follows:

25. Amend § 1603.303:

a. In paragraph (c), introductory text, by adding a comma after the word “order”;

b. In paragraph (c)(2), by adding a comma after the word “regulation”; and

c. In paragraph (e), by removing the words “the appeal and” and by removing the citation “§ 1603.209” and adding in its place the citation “§ 1603.302(b) and (c)”.

26. Amend § 1603.306 by removing a comma after the word “resides”.

Footnotes