[Federal Register: February 19, 2008 (Volume 73, Number 33)]
[Proposed Rules]
[Page 9065-9068]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19fe08-17]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1615
RIN 3046-AA82
Enforcement of Nondiscrimination on the Basis of Disability in
Programs or Activities Conducted by the Equal Employment Opportunity
Commission and Accessibility of Commission Electronic and Information
Technology
AGENCY: Equal Employment Opportunity Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Equal Employment Opportunity Commission (EEOC or
Commission) proposes to amend its regulation to establish that all
complaints under section 508 of the Rehabilitation Act of 1973, as
amended (section 508), whether filed by members of the public or EEOC
employees, will be processed under the procedures for section 504
public complaints. The Commission also proposes to update terminology
which outlines how EEOC enforces section 504 of the Rehabilitation Act
with respect to its own programs or activities. Finally, the Commission
proposes to update or eliminate certain sections of this regulation
that are no longer relevant.
DATES: Written comments on this proposed rulemaking must be submitted
on or before April 21, 2008.
ADDRESSES: Written comments should be submitted to Stephen Llewellyn,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 10th Floor, 1801 L Street, NW., Washington, DC 20507. As a
convenience to commentators, the Executive Secretariat will accept
comments transmitted by facsimile (``FAX'') machine. The telephone
number of the FAX receiver is (202) 663-4114. (This is not a toll-free
number.) Only comments of six or fewer pages will be accepted via FAX
transmittal to ensure 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 (TTD). (These are not
toll-free telephone numbers.) You may also submit comments and
attachments electronically at http://www.regulations.gov, which is the
Federal eRulemaking Portal. Follow the instructions online for
submitting comments. Copies of comments submitted by the public will be
available to review at the Commission's library, Room 6502, 1801 L
Street, NW., Washington, DC 20507 between the hours of 9:30 a.m. and 5
p.m. or can be reviewed at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Carol R. Miaskoff or Kerry Leibig,
Office of Legal Counsel, U.S. Equal Employment Opportunity Commission
at (202) 663-4638. (This is not a toll-free-telephone number.)
SUPPLEMENTARY INFORMATION: Section 508 of the Rehabilitation Act
provides that each federal agency must ensure that the electronic and
information technology it develops, procures, maintains, or uses is
accessible to individuals with disabilities who are federal employees
or applicants, or members of the public seeking information or services
from the agency. Section 508 authorizes individuals to file
administrative complaints and civil actions limited to the alleged
failure to procure accessible technology. In addition to amending part
1615 to address the requirements of Section 508, this notice proposes
to update terminology and eliminate certain sections of part 1615 that
are no longer relevant.
Summary of Updates in Proposed Regulation
In 1992, Congress amended the Rehabilitation Act to replace the
term ``handicap'' with the term ``disability.'' Public Law 102-569, 106
Stat. 4344. Accordingly, the Commission proposes to replace the term
``handicap'' with the term ``disability'' throughout part 1615. The
Commission similarly proposes, again throughout part 1615, to replace
the phrase ``individual with handicaps'' with ``individual with a
disability'' and the phrase ``individuals with handicaps'' with
``individuals with disabilities.'' Finally, the Commission proposes to
replace the term ``nonhandicapped persons'' in 1615.130(c) with the
term ``individuals without disabilities.''
Throughout this part, the Commission proposes to replace the term
``Chairman'' with the term ``Chair'' and the terms ``EEO Director'' and
``Director, Equal Employment Opportunity Staff'' with the term
``Director of OEO.''
The Commission proposes to revise the definition at 1615.103 of
``qualified individual with handicaps,'' as it relates to employment.
The revised definition will cross-reference 29 CFR 1630.2(m), which
defines ``qualified individual with a disability'' under the Americans
with Disabilities Act (ADA), and will delete the previous reference. It
is necessary to refer to 29 CFR 1630.2(m) in the regulations
implementing section 504 because the Rehabilitation Act was amended in
1992 to apply the nondiscrimination standards of Titles I and V of the
ADA, as amended, to section 504 complaints alleging non-affirmative
action employment discrimination. See 29 U.S.C. 794(d). The appropriate
definition of ``qualified individual with a disability'' with respect
to employment is therefore now found at 29 CFR 1630.2(m).
The Commission proposes to eliminate the entire text of 1615.110.
Section 1615.110 requires that the EEOC complete, by June 26, 1990, a
self-evaluation of policies and practices, and the effects thereof,
that do not or may not meet the requirements of the regulation. It
further requires that a description of areas examined, problems
identified, and modifications made to be kept on file for at least
three years. Because these requirements were met and the given time
periods have long
[[Page 9066]]
since passed, this section of the regulation is deleted.
The Commission proposes to revise section 1615.140, which sets
forth section 504's prohibition against employment discrimination, to
cross-reference the Commission's ADA regulations at 29 CFR part 1630,
and to delete the reference to part 1613, which is no longer in force.
The Commission proposes to delete paragraphs (c) and (d) from
section 1615.150. These paragraphs provide time frames by which the
Commission must make existing facilities accessible, as defined in
1615.150(a) and (b). These paragraphs further require the Commission to
develop, by December 1989, a transition plan if structural changes to
facilities are needed to achieve program accessibility. As these
requirements have long since been met and the latest of the given time
frames (June 26, 1992) has long passed, these sections of the
regulation are deleted.
The Commission further proposes to update 1615.170(b), which sets
forth the procedures for processing complaints alleging violations of
section 504 with respect to employment, to cross-reference 29 CFR part
1614 rather than 29 CFR part 1613. Part 1614 replaced part 1613, which
is no longer in force, and sets forth procedures for processing federal
sector employment discrimination complaints arising under the EEO
statutes enforced by the EEOC.
Finally, the Commission proposes to revise 1615.170(j) and
1615.170(k) to clarify the procedures for processing an appeal and to
extend the time frame for doing so.
Summary of Section 508 Procedures in Proposed Regulation
Several sections of the regulation will be amended to set forth the
procedures for filing a complaint under section 508 against the EEOC.
The statutory language in section 508 directs agencies to use the
same complaint processing procedures as they use for section 504
complaints. The Commission will use its section 504 complaint
procedures set forth in 29 CFR 1615.170(d)-(m) to process all section
508 complaints it receives whether from its applicants and employees,
or from members of the public.
The Commission will not use the federal sector equal employment
opportunity administrative complaint procedures, 29 CFR part 1614, for
section 508 complaints, even if they are filed by a Commission
applicant or employee. The part 1614 process is reserved for complaints
alleging employment discrimination. An allegation charging
discrimination in access to electronic and information technology in
violation of section 508 is outside the scope of part 1614.\1\
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\1\ However, if the employee alleges that the denial of access
to electronic or information technology is a violation of the
Commission's duty to provide a reasonable accommodation under
section 501 of the Rehabilitation Act, the Commission will use the
part 1614 process.
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If a section 501 complaint filed against the Commission in the part
1614 process is found to include a separate section 508 claim, the
Commission's Office of Equal Opportunity (OEO) will process the section
501 claim through the part 1614 process and it will process the section
508 claim pursuant to the procedures set forth in 29 CFR 1615.170(d)-
(m).
Section 508 authorizes administrative complaints and lawsuits on or
after June 21, 2001, but only with respect to federal agency
procurements made on or after June 21, 2001, in violation of section
508. It does not authorize administrative complaints or lawsuits to be
filed with respect to electronic and information technology that is
``developed, maintained or used'' by a federal agency. The proposed
amendment to 1615.170 reflects this fact by describing the compliance
procedures to be used for complaints alleging violations of the
agency's responsibility to procure electronic and information
technology under section 508.\2\
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\2\ We note, however, that the Commission, like all federal
agencies, has additional longstanding obligations that are
enforceable under sections 501 and 504 of the Rehabilitation Act.
Some of these obligations may be triggered when electronic and
information technology is ``developed, maintained, or used'' by
federal agencies and is not accessible. If individuals file
complaints alleging that electronic or information technology
acquired or developed prior to June 21, 2001, is inaccessible to
people with disabilities, the Commission will review the allegations
to determine if they more properly allege violations of sections 501
or 504 and process them accordingly.
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For a discussion of section 508 enforcement methods, interested
parties are advised to consult the Department of Justice's Section 508
of the Rehabilitation Act: Accessibility for People with Disabilities
in the Information Age (Results of 2001 Survey) at Section III.A, which
discusses administrative complaints and lawsuits under section 508. See
http://www.usdoj.gov/crt/508/report2/complaints.htm. Interested parties
may also wish to consult the overview of section 508 provided by the
Architectural and Transportation Barriers Compliance Board (Access
Board) available at http://www.access-board.gov/sec508/summary.htm.\3\
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\3\ The Access Board issues standards for electronic and
information technology covered by section 508. These standards set
forth a definition of electronic and information technology and the
technical and functional performance criteria necessary for such
technology to comply with section 508. See 36 CFR part 1194.
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Regulatory Procedures
Executive Order 12866
In promulgating this notice of proposed rulemaking, the Commission
has adhered to the regulatory philosophy and applicable principles of
regulation set forth in section 1 of Executive Order 12866, Regulatory
Planning and Review. As indicated in the Semi-Annual Regulatory Agenda
for Fall 2007, this regulation is not a significant regulation within
the meaning of the Executive Order.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b), enacted by the
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not
have a significant economic impact on a substantial number of small
entities, because it applies exclusively to a federal agency and
individuals accessing the services of a federal agency. 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. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Paperwork Reduction Act
This regulation contains no information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 29 CFR Part 1615
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Individuals
with disabilities.
For the reasons set forth in the preamble, the EEOC proposes to
amend 29 CFR part 1615 as follows:
[[Page 9067]]
PART 1615--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION AND IN ACCESSIBILITY OF
COMMISSION ELECTRONIC AND INFORMATION TECHNOLOGY
1. Revise the authority citation for 29 CFR Part 1615 to read as
follows:
Authority: 29 U.S.C. 794 and 29 U.S.C. 794d(f)(2).
2. The heading of part 1615 is revised to read as set forth above.
3. Amend part 1615 to remove the term ``handicap'' wherever it
appears and add, in its place, the term ``disability.''
4. Amend part 1615 to remove the phrase ``individual with a
handicap'' wherever it appears and add, in its place, the phrase
``individual with a disability.''
5. Amend part 1615 to remove the phrase ``individuals with
handicaps'' wherever it appears and add, in its place, the phrase
``individuals with disabilities.''
6. Amend part 1615 to remove the term ``nonhandicapped persons''
wherever it appears and add, in its place, the term ``individuals
without disabilities.''
7. Amend part 1615 to remove the term ``Chairman'' wherever it
appears and add, in its place, the term ``Chair.''
8. Amend part 1615 to remove the term ``EEO Director'' wherever it
appears and add, in its place, the term ``Director of OEO.''
9. Section 1615.101 is amended by redesignating the current
paragraph as paragraph (a) and adding a new paragraph (b) to read as
follows:
Sec. 1615.101 Purpose.
* * * * *
(b) The purpose of this part is also to effectuate section 508 of
the Rehabilitation Act, which requires that when Federal departments
and agencies develop, procure, maintain, or use electronic and
information technology, they shall ensure accessibility by individuals
with disabilities who are Federal employees or applicants, or members
of the public.
10. Section 1615.102 is revised to read as follows:
Sec. 1615.102 Application.
This part applies to all programs or activities conducted by the
Commission and to its development, procurement, maintenance, and use of
electronic and information technology.
11. Section 1615.103 is amended as follows:
A. The definition of ``Complete complaint'' is revised.
B. A definition of ``Electronic and information technology'' is
added.
C. The definition heading ``Individual with handicaps'' is removed
and ``Individual with a disability'' is added in its place.
D. The definition ``Qualified individual with a handicap'' is
removed and a definition of ``Qualified individual with a disability''
is added in its place.
E. A definition of ``Section 508'' is added.
The revisions and additions read as follows:
Sec. 1615.103 Definitions.
* * * * *
Complete complaint means a written statement that contains the
complainant's name and address and describes the Commission's actions
in sufficient detail to inform the Commission of the nature and date of
the alleged violation of section 504 or section 508. It shall be signed
by the complainant or by someone authorized to do so on his or her
behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Electronic and Information Technology. Includes information
technology and any equipment or interconnected system or subsystem of
equipment that is used in the creation, conversion, or duplication of
data or information. The term electronic and information technology
includes, but is not limited to, telecommunications products (such as
telephones), information kiosks and transaction machines, World Wide
Web sites, multimedia, and office equipment such as copiers and fax
machines. The term does not include any equipment that contains
embedded information technology that is used as an integral part of the
product, but the principal function of which is not the acquisition,
storage, manipulation, management, movement, control, display,
switching, interchange, transmission, or reception of data or
information. For example, HVAC (heating, ventilation, and air
conditioning) equipment such as thermostats or temperature control
devices, and medical equipment where information technology is integral
to its operation, are not information technology.
* * * * *
Qualified individual with a disability means:
(1) With respect to any Commission program or activity (except
employment), an individual with a disability who, with or without
modifications or aids required by this part, meets the essential
eligibility requirements for participation in, or receipt of benefits
from, that program or activity.
(2) With respect to employment, a qualified individual with a
disability as defined in 29 CFR 1630.2(m), which is made applicable to
this part by 1615.140.
* * * * *
Section 508 means section 508 of the Rehabilitation Act of 1973,
Public Law 93-112, Title V, section 508, as added Public Law 99-506,
Title VI, section 603(a), Oct. 21, 1986, 100 Stat. 1830, and amended
Public Law 100-630, Title II, section 206(f), Nov. 7, 1988, 102 Stat.
3312; Public Law 102-569, Title V, section 509(a), Oct. 29, 1992, 106
Stat. 4430; Public Law 105-220, Title IV, section 408(b), Aug. 7, 1998,
112 Stat. 1203.
Sec. 1615.110 [Removed and Reserved]
12. Section 1615.110 is removed and reserved.
13. Section 1615.135 is added to read as follows:
Sec. 1615.135 Electronic and information technology requirements.
(a) Development, procurement, maintenance, or use of electronic and
information technology.--When developing, procuring, maintaining, or
using electronic and information technology, the Commission shall
ensure, unless an undue burden would be imposed on it, that the
electronic and information technology allows, regardless of the type of
medium of the technology--
(1) Individuals with disabilities who are Commission employees to
have access to and use of information and data that is comparable to
the access to and use of the information and data by Commission
employees who are not individuals with disabilities; and
(2) Individuals with disabilities who are members of the public
seeking information or services from the Commission to have access to
and use of information and data that is comparable to the access to and
use of the information and data by such members of the public who are
not individuals with disabilities.
(b) Alternative means of access when undue burden is imposed.--When
development, procurement, maintenance, or use of electronic and
information technology that meets the standards published by the Access
Board at 36 CFR part 1194 would impose an undue burden, the
[[Page 9068]]
Commission shall provide individuals with disabilities covered by this
section with the information and data involved by an alternative means
of access that allows the individual to use the information and data.
14. Section 1615.140 is revised to read as follows:
Sec. 1615.140 Employment.
No qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in employment under any
program or activity conducted by the Commission. The definitions,
requirements, and procedures of section 501 of the Rehabilitation Act
of 1973 (29 U.S.C. 791), as established by this Commission in 29 CFR
part 1614, shall apply to employment in federally conducted programs or
activities. As noted in 29 CFR 1614.203(b), the standards used to
determine whether section 501 of the Rehabilitation Act has been
violated in a complaint alleging non-affirmative action employment
discrimination under part 1614 shall be the standards applied under
Title I and Title V (sections 501 through 504 and 510) of the Americans
with Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111,
12201) as such sections relate to employment. These standards are set
forth in the Commission's ADA regulations at 29 CFR part 1630. If a
section 501 complaint is filed against the Commission in the part 1614
process and it is found to include a separate section 508 claim, the
part 1614 process will be used to process the section 501 claim. The
section 508 claim will be processed separately in accordance with the
procedures set forth at Sec. 1615.170.
Sec. 1615.150 [Amended]
15. Section 1615.150(c) and (d) are removed.
16. Section 1615.170 is amended as follows:
A. Revise paragraphs (a), (b), and (c).
B. Revise the first sentences of paragraphs (d)(1) and (d)(2).
C. Revise the third and fourth sentences of paragraph (i).
D. Revise paragraph (j).
E. Revise the first sentence of paragraph (k).
F. Add a new paragraph (n).
The revisions and additions read as follows:
Sec. 1615.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
disability in programs or activities conducted by the Commission in
violation of section 504. This section also applies to all complaints
alleging a violation of the agency's responsibility to procure
electronic and information technology under section 508 whether filed
by members of the public or EEOC employees or applicants.
(b) The Commission shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by EEOC in 29 CFR part 1614 pursuant to section 501 of the
Rehabilitation Act of 1973 (29 U.S.C. 791). With regard to employee
claims concerning agency procurements made in violation of section 508,
the procedures set out in paragraphs (d) through (m) of this section
shall be used.
(c) Responsibility for implementation and operation of this section
shall be vested in the Director, Office of Equal Opportunity (Director
of OEO).
(d) * * * (1) * * * Any person who believes that he or she has been
subjected to discrimination prohibited by this part or that the
agency's procurement of electronic and information technology has
violated section 508, or authorized representative of such person, may
file a complaint with the Director of OEO. * * *
(2) * * * Complaints shall be filed with the Director of OEO within
one hundred and eighty calendar days of the alleged acts of
discrimination. * * *
* * * * *
(i) * * * An appeal shall be deemed filed on the date it is
postmarked, or, in the absence of a postmark, on the date it is
received by the Chair at EEOC headquarters. It should be clearly marked
``Appeal of Section 504 decision'' or ``Appeal of Section 508
decision'' and should contain specific objections explaining why the
person believes the initial decision was factually or legally wrong. *
* *
(j) Timely appeals shall be decided by the Chair of the Commission
unless the Commission determines that an appeal raises a policy issue
which should be addressed by the full Commission.
(1) The Chair will draft a decision within 30 days of receipt of an
appeal and circulate it to the Commission.
(2) If a Commissioner believes an appeal raises a policy issue that
should be addressed by the full Commission, he or she shall so inform
the Chair by notice in writing within ten calendar days of the
circulation of the draft decision on appeal.
(3) If the Chair does not receive such written notice, the decision
on appeal shall be issued.
(4) If the Chair receives written notice as described in
subparagraph (2), the Commission shall resolve the appeal through a
vote.
(k) The Commission shall notify the complainant of the results of
the appeal within ninety calendar days of the receipt of the appeal
from the complainant. * * *
* * * * *
(n) Civil actions. The remedies, procedures, and rights set forth
in sections 505(a)(2) and 505(b) of the Rehabilitation Act, 29 U.S.C.
794a(a)(2) and 794a(b) shall be the remedies, procedures, and rights
available to any individual with a disability filing a complaint under
this section.
Dated: February 7, 2008.
Naomi C. Earp,
Chair.
[FR Doc. E8-2863 Filed 2-15-08; 8:45 am]
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