Fedweek Legal

On July 24, the Equal Employment Opportunity Commission (EEOC) issued a final rule modifying, for the first time since 1999, various aspects of the EEO complaint process utilized by federal employees who file complaints of discrimination.

Key among the revisions to 29 CFR §1614 is a requirement that a federal agency, which has not completed its EEO investigation in a timely manner, provide the complainant a written notice that the investigation is not complete, an estimated date of when the investigation will be completed, and a notice that the complainant has the right to request a hearing or file a lawsuit. Previously, the agency was only required to notify a complainant of the right to request a hearing within 180 days from filing a complaint.

The revisions also include language that allows for the acceptance of a complaint which alleges that a proposal to take a personnel action is discriminatory, if the complaint alleges that the proposed action is retaliatory. If the complaint regarding a proposed action alleges discrimination, but not retaliation, the complaint can be dismissed by the agency.

EEOC also included revisions to the class complaint regulations which make an EEOC administrative judge’s decision on the merits of a class complaint a final decision, rather than a recommended decision. This revision gives the same status to an AJ decision on a class complaint as an AJ decision on an individual complaint; the decision will be a final decision which the agency or class agent can appeal. Additionally, the revisions provide for the expedited processing of appeals of class certification decisions within 90, rather than 180 days.

The phrase "decision without a hearing" is changed to "Summary Judgment." The time period within which agencies must provide ordered relief is extended from 60 to 120 days. The revisions include a requirement that federal agencies submit appeals and complaint files to the EEOC in digital format, unless the agency can establish good cause for not doing so. Good cause can include the financial burden placed on an agency in having to convert to digital files. The EEOC will determine good cause on a case-by-case basis since cost and other factors that can establish good cause are relative and unique to each agency.

The revised regulations include a requirement that federal agency EEO programs comply with the EEOC regulations and Management Directives. The EEOC will review federal agency EEO programs for compliance and issue notices to agencies when noncompliance is found. The EEOC will give an agency found to be non-compliant a reasonable opportunity to cure the defects to show that its program is in compliance, or to provide justification for its noncompliance. The EEOC Chair retains the discretion to determine whether a notice of noncompliance issued to a federal agency should be made public.

These revisions will become effective 60 days after the July 25, 2012 publication in the Federal Register.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/CM/Custom/Federal-Employees-Survival-Guide.asp. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.