[Federal Register Volume 73, Number 13 (Friday, January 18, 2008)]
[Rules and Regulations]
[Pages 3387-3389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-826]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1601
RIN 3046-AA83
Procedural Regulations Under Title VII and ADA
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission is eliminating
three bases for dismissal of charges in its procedural regulations
because they are no longer needed to accomplish the Commission's case
management goals.
DATES: Effective Date: February 19, 2008
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, or Mona Papillon, Senior General Attorney, at (202) 663-4640
(voice) or (202) 663-7026 (TTY). Copies of this final rule are also
available in the following alternate formats: Large print, braille,
audiotape and electronic file on computer disk. Requests for this
notice in an alternative format should be made to EEOC's Publication
Center at 1-800-669-3362 (voice) or 1-800-800-3302 (TTY).
SUPPLEMENTARY INFORMATION: Prior to 1977, the Commission's procedural
regulations only authorized dismissal when the Commission issued a no
cause determination, a charge was untimely, or a charge failed to state
a claim. In 1977, the Commission adopted three additional bases for
dismissal in order to resolve charges that were timely and stated a
claim, but where the Commission was unable to issue a determination on
the merits for various reasons. These three bases are currently set out
in Sec. 1601.18(b) through (d). Paragraph (b) permits dismissal when
the charging party fails to cooperate. Paragraph (c) permits dismissal
when the charging party cannot be located. Paragraph (d) permits
dismissal when the charging party refuses to accept an offer of full
relief for the harm alleged in the charge.
In 1995, the Commission adopted Priority Charge Handling Procedures
(PCHP) to facilitate flexibility and permit more strategic use of
resources. Among other things, PCHP authorized field offices to issue
final determinations when further investigation was not likely to lead
to evidence establishing a violation of the employment discrimination
statutes. Thus, Sec. 1601.18(b) through (d) are no longer needed to
accomplish the Commission's case management goals. Their elimination is
also consistent with EEOC'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, to locate, and to
accept full relief.
In addition, the continued inclusion of these dismissal bases in
the regulations is causing unnecessary confusion. There is a split in
the courts regarding the proper interpretation of paragraphs (b)
through (d). Compare
[[Page 3388]]
McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002)
(dismissing a private plaintiff's claim under the Americans with
Disabilities Act (ADA) on the ground that she had failed to exhaust her
administrative remedies before the EEOC where the Commission dismissed
plaintiff's charge for ``failure to cooperate'' as set forth in section
1601.18(b)) and Shikles v. Sprint/United Management Company, 426 F.3d
1304 (10th Cir. 2005) (extending the holding of McBride to the Age
Discrimination in Employment Act (ADEA)), with Doe v. Oberweis Dairy,
456 F.3d 704 (7th Cir. 2006) (disagreeing with the Tenth Circuit and
holding that the exhaustion requirement under Title VII does not impose
a duty to cooperate with the EEOC).
The Commission did not anticipate that dismissals of charges under
section 1601.18(b) through (d) would lead to dismissals of suits filed
in Federal court. Nor did the Commission intend to impose on charging
parties any obligations beyond the two statutory prerequisites
recognized by Supreme Court precedent for charges filed under Title VII
and the Americans with Disabilities Act \1\: the filing of a timely
charge and receipt of a notice of right to sue. See Alexander v.
Garner-Denver, 415 U.S. 36, 47 (1974) and McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 798 (1973). Rather, the Commission intended
dismissals under sections 1601.18(b) through (d) as mechanisms to
terminate further administrative processing of the charge and to permit
the charging party to exercise his or her rights to de novo judicial
review.
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\1\ The Age Discrimination in Employment Act and the Equal Pay
Act do not have these same requirements. The ADEA only requires (1)
a timely charge, and (2) a 60-day waiting period after filing the
charge. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27
(1991). ADEA plaintiffs are not required to obtain a right-to-sue
notice. Additionally, the EPA allows an individual to bring a suit
in court without even filing a charge. See Ledbetter v. Goodyear
Tire & Rubber Co., Inc., 127 S.Ct. 2162 (2007); Washington County v.
Gunther, 452 U.S. 161, 175 n.14 (1981).
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The Supreme Court long ago established the principle that
plaintiffs in employment discrimination suits are entitled to a trial
de novo. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At
issue in that case was whether an individual could sue an employer
under Title VII where ``the Commission made no finding on respondent's
allegation of racial bias.'' Id. at 797-798. The Court unequivocally
stated:
[Charging party] satisfied the jurisdictional prerequisites to a
federal action (i) by filing timely charges of employment
discrimination with the Commission and (ii) by receiving and acting
upon the Commission's statutory notice of the right to sue, 42
U.S.C. Sec. Sec. 2000e-5(a) and 2000e-5(e). The Act does not
restrict a complainant's right to sue to those charges as to which
the Commission has made findings of reasonable cause, and we will
not engraft on the statute a requirement which may inhibit the
review of claims of employment discrimination in the federal courts.
* * * [T]he courts of appeal have held that, in view of the large
volume of complaints before the Commission and the nonadversary
character of many of its proceedings, ``court actions under Title
VII are de novo proceedings and * * * a Commission `no reasonable
cause' finding does not bar a lawsuit in the case.
411 U.S. at 798-799 (citations omitted). See also University of
Tennessee v. Elliott, 478 U.S. 788, 793 (1986) (citing with approval
the Sixth Circuit's statement in the case that ``[I]t is settled that
decisions by the EEOC do not preclude a trial de novo in federal court
* * *.''); Chandler v. Roudebush, 425 U.S. 840, 844-845 (1976) (``It is
well established that Sec. 706 of the Civil Rights Act of 1964 accords
private-sector employees the right to de novo consideration of their
Title VII claims''). The Supreme Court has determined that Congress
granted the right to a trial de novo to private plaintiffs suing under
Title VII regardless of what action EEOC may take on the charge.
The overwhelming majority of charging parties cooperate fully with
EEOC during its investigation because cooperation is in their self-
interest. They cooperated before the regulation was promulgated and
will continue to do so after the regulation is withdrawn. The
Commission did not adopt this regulation to increase or encourage
cooperation. The regulation was adopted simply as a case management
tool. Now, it has outlived its usefulness.
As explained above, we are eliminating 1601.18(b) through (d)
because they are no longer necessary and because the Commission did not
intend to affect charging parties' rights to de novo judicial review
when adopting them. The regulation will no longer provide for
dismissals based upon ``failure to cooperate'' (29 CFR 1601.18(b)),
``failure to locate'' (29 CFR 1601.18(c)), or ``failure to accept full
relief'' (29 CFR 1601.18(d)).
Regulatory Procedures
Executive Order 12866
This is not a ``significant regulatory action'' within the meaning
of section 3 of Executive Order 12866.
Paperwork Reduction Act
This regulation contains no new information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this 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 federal sector employment. For this reason, a
regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This final 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.
Congressional Review Act
This action concerns agency organization, procedure or practice
that does not substantially affect the rights or obligations of non-
agency parties and, accordingly, is not a ``rule'' as that term is used
by the Congressional Review Act (Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the
reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1601
Administrative practice and procedure, Equal Employment
Opportunity.
For the Commission.
Naomi C. Earp,
Chair.
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Accordingly, for the reasons set forth in the preamble, 29 CFR part
1601 is amended as follows:
PART 1601--PROCEDURAL REGULATIONS
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1. The authority citation for part 1601 continues to read as follows:
Authority: 42 U.S.C. 2000e to 2000e-17; 42 U.S.C. 12111 to
12117.
Sec. 1601.18 [Amended]
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2. Section 1601.18 is amended by: Removing paragraphs (b), (c), and
(d); redesignating paragraphs (e) and (f) as paragraphs (b) and (c);
and removing the words ``paragraphs (a), (b), (c) or (d) of''
[[Page 3389]]
from the first sentence of redesignated paragraph (b).
[FR Doc. E8-826 Filed 1-17-08; 8:45 am]
BILLING CODE 6570-01-P