[Federal Register Volume 74, Number 96 (Wednesday, May 20, 2009)]
[Proposed Rules]
[Pages 23674-23677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11560]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Parts 1601, 1602, 1603, 1607, 1610, 1611, 1614, 1625, and
1690
RIN 3046-AA88
Amendment of Procedural and Administrative Regulations To Include
the Genetic Information Nondiscrimination Act of 2008 (GINA)
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 some of its existing regulations to
include references to title II of the Genetic Information
Nondiscrimination Act of 2008 (``GINA''), which prohibits employment
discrimination based on genetic information.
DATES: Comments must be received on or before July 20, 2009.
ADDRESSES: Send written comments by mail to Stephen Llewellyn,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507.
Written comments of six or fewer pages may be faxed to the Executive
Secretariat at (202) 663-4114. (There is no toll free FAX number.)
Receipt of facsimile 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.) Instead of sending written comments
to EEOC, comments may be submitted to EEOC electronically on the
Federal eRulemaking Portal: http://www.regulations.gov. After accessing
this Web site, follow its instructions for submitting comments.
All comments received will be posted without change to http://www.regulations.gov, including any personal information you provide.
Copies of the received comments also will be available for inspection
in the EEOC Library by advance appointment only, from 9 a.m. to 5 p.m.,
Monday through Friday except legal holidays, from July 20, 2009 until
the Commission publishes the rule in final form. Persons who schedule
an appointment in the EEOC Library and need assistance to view the
comments will be provided with appropriate aids upon request, such as
readers or print magnifiers. To schedule an appointment to inspect the
comments at the EEOC Library, contact the EEOC Library by calling (202)
663-4630 (voice) or (202) 663-4641 (TTY). (These are not toll free
numbers.)
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, (202) 663-4668, or Erin N. Norris, Senior Attorney, (202) 663-
4876, Office of Legal Counsel, 131 M Street, NE., Washington, DC 20507.
Copies of this rule are available in the following alternate formats:
large print, braille, electronic computer disk, and audio-tape.
Requests for this notice in an alternative format should be made to the
Publications Center at 1-800-699-3362 (voice), 1-800-800-3302 (TTY), or
703-821-2098 (FAX--this is not a toll free number).
SUPPLEMENTARY INFORMATION: On May 21, 2008, President George W. Bush
signed the Genetic Information Nondiscrimination Act of 2008 (``GINA'')
into law. Title II of GINA protects job applicants, current and former
employees, labor union members, and apprentices and trainees from
discrimination based on their genetic information. Title II of GINA's
coverage corresponds with that of Title VII of the Civil Rights Act of
1964, as amended, covering employers with 15 or more employees,
employment agencies, labor unions, and joint labor-management training
programs, as well as federal sector employers. Title II will become
effective on November 21, 2009. In a separate notice of proposed
rulemaking, found at 74 FR 9056, EEOC issued proposed interpretive
regulations under GINA. In the current rulemaking, EEOC is proposing to
amend its procedural and administrative regulations to add references
to GINA. In addition, EEOC is taking the opportunity to replace the
outdated terms ``handicap'' and ``handicaps'' with the terms
``disability'' and ``disabilities'' throughout its regulations in
Chapter XIV of Title 29 of the Code of Federal Regulations.
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 rule is not
a ``significant regulatory action'' under section 3(f) of the Order
12866, and does not require an assessment of potential costs and
benefits under section 6(a)(3) of the Order.
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 only adds references and does not impose a burden
on any business entities. For this reason, a regulatory flexibility
analysis is not required.
Unfunded Mandates Reform Act of 1995
This 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.
[[Page 23675]]
Congressional Review Act
This action 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 Parts 1601, 1602, 1603, 1607, 1610,
1611, 1614, 1625, and 1690
Administrative practice and procedure, Equal employment
opportunity.
For the Commission.
Dated: May 12, 2009.
Stuart J. Ishimaru,
Acting Chairman.
Accordingly, it is proposed to amend 29 CFR parts 1601, 1602, 1603,
1607, 1610, 1611, 1614, 1625, and 1690 as follows:
PART 1601--PROCEDURAL REGULATIONS
1. The authority citation for part 1601 is revised to read as
follows:
Authority: 42 U.S.C. 2000e to 2000e-17; 42 U.S.C. 12111 to
12117; 42 U.S.C. 2000ff to 2000ff-11.
2. Section 1601.1 is revised to read as follows:
Sec. 1601.1 Purpose.
The regulations set forth in this part contain the procedures
established by the Equal Employment Opportunity Commission for carrying
out its responsibilities in the administration and enforcement of title
VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act of 1990, and the Genetic Information Nondiscrimination Act of 2008.
Section 107 of the Americans with Disabilities Act and section 207 of
the Genetic Information Nondiscrimination Act incorporate the powers,
remedies and procedures set forth in sections 705, 706, 707, 709 and
710 of the Civil Rights Act of 1964. Based on its experience in the
enforcement of title VII, the Americans with Disabilities Act, and the
Genetic Information Nondiscrimination Act, and upon its evaluation of
suggestions and petitions for amendments submitted by interested
persons, the Commission may from time to time amend and revise these
procedures.
3. Section 1601.2 is revised to read as follows:
Sec. 1601.2 Terms Defined in Title VII of the Civil Rights Act, the
Americans With Disabilities Act, and the Genetic Information
Nondiscrimination Act.
The terms person, employer, employment agency, labor organization,
employee, commerce, industry affecting commerce, State and religion as
used in this part shall have the meanings set forth in section 701 of
title VII of the Civil Rights Act of 1964. The term disability shall
have the meaning set forth in section 3 of the Americans with
Disabilities Act of 1990. The term genetic information shall have the
meaning set forth in section 201 of the Genetic Information
Nondiscrimination Act of 2008.
4. Section 1601.3 is amended by revising paragraph (a) to read as
follows:
Sec. 1601.3 Other definitions.
(a) For the purposes of this part, the term title VII shall mean
title VII of the Civil Rights Act of 1964; the term ADA shall mean the
Americans with Disabilities Act of 1990; the term GINA shall mean the
Genetic Information Nondiscrimination Act of 2008; the term Commission
shall mean the Equal Employment Opportunity Commission or any of its
designated representatives; Washington Field Office shall mean the
Commission's primary non-Headquarters office serving the District of
Columbia and surrounding Maryland and Virginia suburban counties and
jurisdictions; the term FEP agency shall mean a State or local agency
which the Commission has determined satisfies the criteria stated in
section 706(c) of title VII; and the term verified shall mean sworn to
or affirmed before a notary public, designated representative of the
Commission, or other person duly authorized by law to administer oaths
and take acknowledgements, or supported by an unsworn declaration in
writing under penalty of perjury.
* * * * *
5. Section 1601.28 is amended as follows:
a. In paragraphs (a)(3) and (b)(1), remove the words ``title VII or
the ADA'' and add in their place the words ``title VII, the ADA, or
GINA'' wherever they appear;
b. Revise paragraph (e)(1) to read as follows:
Sec. 1601.28 Notice of right to sue: Procedure and authority.
* * * * *
(e) * * *
(1) Authorization to the aggrieved person to bring a civil action
under title VII, the ADA, or GINA pursuant to section 706(f)(1) of
title VII, section 107 of the ADA, or section 207 of GINA within 90
days from receipt of such authorization;
* * * * *
Sec. Sec. 1601.6, 1601.7, 1601.10, 1601.11, 1601.13, 1601.18, 1601.21,
1601.22, 1601.24, 1601.25, 1601.26, 1601.30, 1601.70, and
1601.79 [Amended]
6. Remove the words ``title VII or the ADA'' and add in their place
the words ``title VII, the ADA, or GINA'' wherever they appear in the
following places:
a. Sec. 1601.6(a);
b. Sec. 1601.7(a);
c. Sec. 1601.10;
d. Sec. 1601.11(b);
e. Sec. 1601.13(a)(3)(i), (a)(4)(i);
f. Sec. 1601.18(a);
g. Sec. 1601.21(a), (e)(2)(iii);
h. Sec. 1601.22, third sentence;
i. Sec. 1601.24(c);
j. Sec. 1601.25;
k. Sec. 1601.26(a);
l. Sec. 1601.30(a);
m. Sec. 1601.70(d);
n. Sec. 1601.79.
Sec. Sec. 1601.16, 1601.17, 1601.30, and 1601.34 [Amended]
7. Remove the words ``title VII and the ADA'' and add in their
place the words ``title VII, the ADA, and GINA'' wherever they appear
in the following places:
a. Sec. 1601.16(a);
b. Sec. 1601.17(a);
c. Sec. 1601.30(a);
d. Sec. 1601.34.
8. In the first sentence of Sec. 1601.22 remove the words ``the
ADA or title VII'' and add in their place the words ``title VII, the
ADA, or GINA'' wherever they appear.
PART 1602--RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE
VII, THE ADA, AND GINA
9. The authority citation for part 1602 is revised to read as
follows:
Authority: 42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501 et seq.;
42 U.S.C. 12117; 42 U.S.C. 2000ff-6.
10. The heading for part 1602 is revised to read as set forth
above.
11. Section 1602.1 is revised to read as follows:
Sec. 1602.1 Purpose and scope.
Section 709 of title VII (42 U.S.C. 2000e), section 107 of the
Americans with Disabilities Act (ADA) (42 U.S.C. 12117), and section
207(a) of the Genetic Information Nondiscrimination Act (GINA) (42
U.S.C. 2000ff-6) require the Commission to establish regulations
pursuant to which employers, labor organizations, joint labor-
management committees, and employment agencies subject to those Acts
shall make and
[[Page 23676]]
preserve certain records and shall furnish specified information to aid
in the administration and enforcement of the Acts.
Sec. Sec. 1602.11, 1602.12, 1602.19, 1602.26, 1602.37, 1602.45, and
1602.54 [Amended]
12. Remove the words ``title VII or the ADA'' and add in their
place the words ``title VII, the ADA, or GINA''; and remove the words
``section 709(c) of title VII or section 107 of the ADA'' and add in
their place the words ``section 709(c) of title VII, section 107 of the
ADA, or section 207(a) of GINA'' wherever they appear in the following
places:
a. Sec. 1602.11;
b. Sec. 1602.12;
c. Sec. 1602.19;
d. Sec. 1602.26;
e. Sec. 1602.37;
f. Sec. 1602.45;
g. Sec. 1602.54.
PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL
GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER
SECTION 321 OF THE GOVERNMENT EMPLOYEE RIGHTS ACT OF 1991
13. The authority citation for part 1603 is revised to read as
follows:
Authority: 42 U.S.C. 2000e-16c; 42 U.S.C. 2000ff-6(b).
14. Section 1603.102(a) is revised to read as follows:
Sec. 1603.102 Filing a complaint.
(a) Who may make a complaint. Individuals referred to in Sec.
1603.101 who believe they have been discriminated against on the basis
of race, color, religion, sex, national origin, age, disability, or
genetic information, or retaliated against for opposing any practice
made unlawful by Federal laws protecting equal employment opportunity
or for participating in any stage of administrative or judicial
proceedings under Federal laws protecting equal employment opportunity
may file a complaint not later than 180 days after the occurrence of
the alleged discrimination.
* * * * *
PART 1607--UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES
(1978)
15. The authority citation for part 1607 continues to read as
follows:
Authority: Secs. 709 and 713, Civil Rights Act of 1964 (78 Stat.
265) as amended by the Equal Employment Opportunity Act of 1972
(Pub. L. 92-261); 42 U.S.C. 2000e-8, 2000e-12.
16. In Sec. 1607.2(D), remove the word ``handicap'' and add in its
place the word ``disability.''
PART 1610--AVAILABILITY OF RECORDS
17. The authority citation for part 1610 continues to read as
follows:
Authority: 42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by
Public Law 93-502, Public Law 99-570, and Public Law 105-231; for
Sec. 1610.15, non-search or copy portions are issued under 31
U.S.C. 9701.
18. Section 1610.7(a)(4) is revised to read as follows:
Sec. 1610.7 Where to make request; form.
(a) * * *
(4) Materials in office investigative files related to charges
under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et
seq.); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 621 et seq.); the Americans with
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); or the Genetic
Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.).
* * * * *
19. Section 1610.17(f) is revised to read as follows:
Sec. 1610.17 Exemptions.
* * * * *
(f) Section 107 of the Americans with Disabilities Act of 1990 (42
U.S.C. 12117) and Section 207(a) of the Genetic Information
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff-6) explicitly adopt the
powers, remedies, and procedures set forth in sections 706 and 709 of
title VII. Accordingly, the prohibitions on disclosure contained in
sections 706 and 709 of title VII as outlined in paragraphs (b), (c),
(d), and (e) of this section, apply with equal force to requests for
information related to charges and executed statistical reporting forms
filed with the Commission under the Americans with Disabilities Act or
the Genetic Information Nondiscrimination Act.
* * * * *
PART 1611--PRIVACY ACT REGULATIONS
20. The authority citation for part 1611 continues to read as
follows:
Authority: 5 U.S.C. 552a.
21. Section 1611.13 is amended by revising the introductory text,
the first sentence of paragraph (a), and the first sentence of
paragraph (c) to read as follows:
Sec. 1611.13 Specific Exemptions--Charge and complaint files.
Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2),
systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-
3 (Title VII, Americans with Disabilities Act, and GINA Discrimination
Case Files), EEOC-15 (Internal Harassment Inquiries) and EEOC/GOVT-1
(Equal Employment Opportunity Complaint Records and Appeal Records) are
exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H),
(e)(4)(I), and (f) of the Privacy Act. The Commission has determined to
exempt these systems from the above named provisions of the Privacy Act
for the following reasons:
(a) The files in these systems contain information obtained by the
Commission and other Federal agencies in the course of harassment
inquiries, and investigations of charges and complaints that violations
of Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, the Equal Pay Act, the Americans with Disabilities Act,
the Rehabilitation Act, and the Genetic Information Nondiscrimination
Act have occurred. * * *
* * * * *
(c) Subject individuals of the files in EEOC-1 (Age and Equal Pay
Act Discrimination Case Files), EEOC-3 (Title VII, Americans with
Disabilities Act, and GINA Discrimination Case Files), and EEOC/GOVT-1
(Equal Employment Opportunity Complaint Records and Appeal Records)
have been provided a means of access to their records by the Freedom of
Information Act. * * *
* * * * *
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
22. The authority citation for part 1614 is revised to read as
follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16 and 2000ff-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p.
218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR,
1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg.
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.
23. Section 1614.101 is revised to read as follows:
Sec. 1614.101 General policy.
(a) It is the policy of the Government of the United States to
provide equal opportunity in employment for all persons, to prohibit
discrimination in employment because of race, color, religion, sex,
national origin, age, disability, or genetic information and to
[[Page 23677]]
promote the full realization of equal employment opportunity through a
continuing affirmative program in each agency.
(b) No person shall be subject to retaliation for opposing any
practice made unlawful by title VII of the Civil Rights Act (title VII)
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)),
the Rehabilitation Act (29 U.S.C. 791 et seq.), or the Genetic
Information Nondiscrimination Act (GINA) (42 U.S.C. 2000ff et seq.) or
for participating in any stage of administrative or judicial
proceedings under those statutes.
24. Section 1614.102(a)(4) is revised to read as follows:
Sec. 1614.102 Agency program.
(a) * * *
(4) Communicate the agency's equal employment opportunity policy
and program and its employment needs to all sources of job candidates
without regard to race, color, religion, sex, national origin, age,
disability, or genetic information, and solicit their recruitment
assistance on a continuing basis;
* * * * *
25. Section 1614.103(a) is revised to read as follows:
Sec. 1614.103 Complaints of discrimination covered by this part.
(a) Individual and class complaints of employment discrimination
and retaliation prohibited by title VII (discrimination on the basis of
race, color, religion, sex and national origin), the ADEA
(discrimination on the basis of age when the aggrieved individual is at
least 40 years of age), the Rehabilitation Act (discrimination on the
basis of disability), the Equal Pay Act (sex-based wage
discrimination), or GINA (discrimination on the basis of genetic
information) shall be processed in accordance with this part.
Complaints alleging retaliation prohibited by these statutes are
considered to be complaints of discrimination for purposes of this
part.
* * * * *
26. Section 1614.105(a) is revised to read as follows:
Sec. 1614.105 Pre-complaint processing.
(a) Aggrieved persons who believe they have been discriminated
against on the basis of race, color, religion, sex, national origin,
age, disability, or genetic information must consult a Counselor prior
to filing a complaint in order to try to informally resolve the matter.
* * * * *
27. Section 1614.204(a)(1) is revised to read as follows:
Sec. 1614.204 Class complaints.
(a) * * *
(1) A class is a group of employees, former employees or applicants
for employment who, it is alleged, have been or are being adversely
affected by an agency personnel management policy or practice that
discriminates against the group on the basis of their race, color,
religion, sex, national origin, age, disability, or genetic
information.
* * * * *
28. Section 1614.302(a) is revised to read as follows:
Sec. 1614.302 Mixed case complaints.
(a) Definitions--(1) Mixed case complaint. A mixed case complaint
is a complaint of employment discrimination filed with a federal agency
based on race, color, religion, sex, national origin, age, disability,
or genetic information related to or stemming from an action that can
be appealed to the Merit Systems Protection Board (MSPB). The complaint
may contain only an allegation of employment discrimination or it may
contain additional allegations that the MSPB has jurisdiction to
address.
(2) Mixed case appeals. A mixed case appeal is an appeal filed with
the MSPB that alleges that an appealable agency action was effected, in
whole or in part, because of discrimination on the basis of race,
color, religion, sex, national origin, disability, age, or genetic
information.
* * * * *
29. Section 1614.304(b)(3) is revised to read as follows:
Sec. 1614.304 Contents of petition.
* * * * *
(b) * * *
(3) A statement of the reasons why the decision of the MSPB is
alleged to be incorrect, in whole or in part, only with regard to
issues of discrimination based on race, color, religion, sex, national
origin, age, disability , or genetic information;
* * * * *
30. Section 1614.601 is amended as follows:
a. Remove the word ``handicap'' and add in its place the word
``disability'' wherever it appears in paragraphs (f) and (g);
b. Remove the word ``handicaps'' and add in its place the word
``disabilities'' wherever it appears in paragraph (f);
c. Remove the word ``handicap(s)'' and add in its place the word
``disability'' in paragraph (a).
31. Section 1614.702(j) is revised to read as follows:
Sec. 1614.702 Definitions.
* * * * *
(j) The term basis of alleged discrimination refers to the
individual's protected status (i.e., race, color, religion, reprisal,
sex, national origin, Equal Pay Act, age, disability, or genetic
information). Only those bases protected by Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., the Equal Pay
Act of 1963, 29 U.S.C. 206(d), the Age Discrimination in Employment Act
of 1967, as amended, 29 U.S.C. 621 et seq., the Rehabilitation Act of
1973, as amended, 29 U.S.C. 791 et seq., and the Genetic Information
Nondiscrimination Act, 42 U.S.C. 2000ff et seq., are covered by the
Federal EEO process.
* * * * *
PART 1625--AGE DISCRIMINATION IN EMPLOYMENT ACT
32. The authority citation for part 1625 continues to read as
follows:
Authority: 81 Stat. 602; 29 U.S.C. 621, 5 U.S.C. 301,
Secretary's Order No. 10-68; Secretary's Order No. 11-68; sec. 12,
29 U.S.C. 631, Pub. L. 99-592, 100 Stat. 3342; sec. 2, Reorg. Plan
No. 1 of 1978, 43 FR 19807.
33. In Sec. 1625.31(a), remove the word ``handicapped'' and add in
its place the phrase ``individuals with disabilities.''
PART 1690--PROCEDURES ON INTERAGENCY COORDINATION OF EQUAL
EMPLOYMENT OPPORTUNITY ISSUANCES
34. The authority citation for part 1690 continues to read as
follows:
Authority: Sec. 715 of title VII of the Civil Rights Act of
1964, as amended, (42 U.S.C. 2000e-14); Reorganization Plan No. 1 of
1978, 43 FR 19807; E.O. 12067, 43 FR 28967.
35. In Sec. 1690.102, remove the word ``handicap'' and add in its
place the word ``disability.''
[FR Doc. E9-11560 Filed 5-19-09; 8:45 am]
BILLING CODE 6570-01-P