Procedural Regulations Under Title VII and ADA

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.

Table of Contents

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 § 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, § 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). CompareMcBride 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.

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. § § 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 § 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.

Accordingly, for the reasons set forth in the preamble, 29 CFR part 1601 is amended as follows:

Part 1601—procedural regulations

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.

§ 1601.18 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”from the first sentence of redesignated paragraph (b).

Footnotes

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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