Discrimination

After issuing a 2009 notice of proposed rulemaking and receiving comments, the EEOC issued changes to federal regulations on July 25, 2012.  These modifications to the federal regulations impact the consideration of discrimination complaints filed by federal employees and applicants.  Significant modifications to 29 C.F.R. Part 1614 are discussed below.

Compliance

Federal executive agencies are required to identify and eliminate discriminatory practices and policies.  Under the recent modifications of 29 C.F.R. Part 1614, the EEOC will review agency programs for compliance with Civil Rights laws and the EEOC’s Management Directives.  If the EEOC determines that an agency’s EEO program is not in compliance, the EEOC will give the agency a reasonable opportunity to cure defects that have been found, provide a reasonable justification for its non-compliance, or establish that its program is in compliance.  If an agency fails to satisfy one of these criteria, a notice of non-compliance will be issued.  Under the rule, the EEOC Chair has discretion to determine whether a notice of non-compliance should be made public.

Pilot Projects

Under the new rule, the EEOC may allow agencies to conduct pilot programs for procedural complaint processing procedures that vary from the requirements of 29 C.F.R. Part 1614.  An approved pilot project can run for two years, and may be extended for an additional year if good cause is shown.

Notice of Rights

Under the EEOC regulations, an agency is required to complete its investigation and notify a complainant that he has the right to request a hearing (or an immediate final decision) within 180 days from the filing of the complaint.  The modified regulations now require that if the agency does not complete its investigation within 180 days, the agency must, within 180 days, issue a written notice to the complainant informing him that the agency has been unable to complete its investigation within the required time limits, and the agency must estimate and provide to complainant a date by which its investigation will be completed.  The notice must also inform the complainant that if he does not want to wait until the agency complete its investigation, he may instead request a hearing or file a civil action in an appropriate United States District Court.  The EEOC, in the explanatory preamble, makes clear that a full range of sanctions are available should an agency not complete its investigation within the required time period, and that these sanctions may be warranted even if the agency issues the required notice under the new final rule.

Retaliation

Under the new rule, the EEOC clarified that federal employees alleging discrimination in proposals to take personnel actions or other preliminary steps to taking personnel actions should be dismissed unless the complaint alleges that the proposal or preliminary step is retaliatory.  That is, challenges to proposals or preliminary steps are actionable if the federal employee alleges that the proposal or preliminary step was issued: (1) because the complainant had engaged in prior EEO activity; (2) because the complainant had opposed a practice which he believed violated one of the federal EEO laws; or (3) to dissuade the complainant, or a reasonable person in the complainant’s circumstances, from engaging in protected EEO activity.

Class Complaints

The EEOC’s final rules makes two significant changes to the class complaint process.  First, the final rule seeks to shorten the class certification process.  An appeal of the acceptance or dismissal of a class complaint will be processed by the EEOC within 90 days.  Second, the final rule makes an administrative judge’s decision on the merits of a class complaint a final decision, which the agency can fully implement or appeal in its final action.  If the agency does not fully implement the administrative judge’s decision, the agency may appeal the parts of the decision that it wishes to contest.

EEOC Process: Electronic Filing

Agencies are now required to submit appeals and compliant files to EEOC in a digital format.  Complainants are encouraged to submit their documentation electronically.

MD-110

In addition to the explicit changes to 29 C.F.R. Part 1614, the EEOC indicated that it will revise Management Directive 110 to provide additional guidance regarding the changes made by the final rule.  The EEOC will continue to review the federal sector EEO process in order to improve its quality and efficiency.

On April 9, 2012, Michael Kator, Chair of KPW’s appellate practice section, argued a highly anticipated case that will help determine the legal requirements for discrimination claims.  KPW represents Jorge Ponce, a federal employee who claims to have been discriminated against because of his race when he was not selected for a position at the Library of Congress.  At trial, the District Court for the District of Columbia informed the jury that it could not rule in Mr. Ponce’s favor unless he showed that the illegal discrimination was the “sole” reason for the selection decision.  On appeal, KPW argues that the court’s jury instruction was in error, as it is inconsistent with the anti-discrimination laws and Supreme Court precedent.  KPW was supported by amicus briefs filed by the AARP and the Metropolitan Washington Employment Lawyers Association.

If you have a discrimination case that is on appeal or may be appealed, contact KPW by clicking here for a free consultation.

The federal government has focused on stopping discrimination against lesbian, gay, bisexual and transgender (LGBT) federal employees and applicants.  The Office of Special Counsel recently invited Kator, Parks & Weiser to a meeting to explore the federal government’s focus on this area.  The U.S. Office of Personnel Management recently published a helpful guide for LGBT employees and applicants who are experiencing discrimination on the basis of their sexual orientation and/or gender identity.  The attorneys of Kator, Parks & Weiser have been at the forefront of the fight to end discrimination against LGBT employees in the federal workplace.  To learn more about this issue and how Kator, Parks & Weiser may be able to help you, please click here.