[Federal Register Volume 84, Number 112 (Tuesday, June 11, 2019)]
[Rules and Regulations]
[Pages 27027-27035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11569]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 84, No. 112 / Tuesday, June 11, 2019 / Rules
and Regulations
[[Page 27027]]
FEDERAL RESERVE SYSTEM
12 CFR Part 268
[Docket No. R-1630]
RIN 7100-AF 23
Rules Regarding Equal Opportunity
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Board of Governors of the Federal Reserve System (the
Board) is issuing its final rule to revise and expand its equal
employment opportunity regulation to adopt recent changes the Equal
Employment Opportunity Commission (EEOC) made to its rules. The Board's
rule is intended to provide Board employees, applicants for employment,
and others with the same substantive and procedural rights generally
guaranteed to others under Title VII of the Civil Rights Act of 1964,
the Equal Pay Act, the Age Discrimination in Employment Act, and the
Rehabilitation Act and thus to comply with the spirit of those laws.
The Board's rule also clarifies provisions related to Board employees'
right to bring a claim before the Merit System Protection Board and the
Federal Labor Relations Board.
DATES: Effective date: July 11, 2019.
FOR FURTHER INFORMATION CONTACT: Sheila Clark, Program Director, Office
of Diversity and Inclusion, Board of Governors of the Federal Reserve
System, (202) 452-2883.
SUPPLEMENTARY INFORMATION:
Background
The terms of Board employment are established by the Federal
Reserve Act and rules established by the Board. 12 U.S.C. 244
(providing that the ``employment, compensation, leave, and expenses''
of Board employees ``shall be governed solely by the provisions of this
chapter and rules and regulations of the Board not inconsistent
therewith.''). Although the Board has broad discretion to establish the
terms of Board employment and can establish terms that deviate from the
rights afforded to other government employees, the Board, as a matter
of policy, has long aligned its employment practices with Federal laws
that provide for equal employment opportunity. Pursuant to this policy,
part 268 was issued by the Board to provide equal opportunity in
employment in compliance with the spirit of Title VII of the Civil
Rights Act of 1964 (Title VII), the Equal Pay Act, the Age
Discrimination in Employment Act, and the Rehabilitation Act.
Overview of Proposal and Comments
On November 15, 2018, the Board issued a notice of proposed
rulemaking with opportunity for public comment (NPR) in which it
proposed amending part 268 in order to better align Board practices
with those of the Equal Employment Opportunity Commission's (EEOC's)
rules (83 FR 57343). The comment period for the proposed rule has now
closed and a total of six public comments were received.
None of the commenters suggested substantive revisions to the
proposed rule. Four commenters expressed general support for the
proposed rule. One commenter did not express support or opposition to
the proposal, but rather, commented on the difficulty of forming a bank
and finding payment processors for the bank.
The final commenter opposed the proposed rule because the commenter
believes the rule would further ``affirmative action'' which the
commenter opposes. The commenter did not specifically state which
portions of the proposal the commenter opposed nor did the commenter
suggest specific changes to the rule. However, the comment was
interpreted as opposing the portion of the proposed rule which commits
the Board to the goal of ensuring that twelve percent of its employees
are individuals with disabilities and two percent of its employees are
individuals with targeted disabilities. Because the provisions
regarding disabled employees reflect the EEOC's approach to employing
disabled employees at other Federal agencies, the Board has decided to
include these provisions in its final rule to ensure greater
consistency between the Board's Equal Employment Opportunity (EEO)
practices and those of other Federal agencies.
The Board has considered all comments received. Because the
majority of the commenters supported the proposed rule and because the
changes are necessary to conform the Board's EEO Regulation more
closely to EEOC rules and to clarify Board employees' rights to bring
claims before the Merit System Protection Board and the Federal Labor
Relations Board, the Board has adopted amendments to its Rules
Regarding Equal Opportunity as proposed without substantive change.
As noted in the NPR, the revisions to part 268 are described below:
1. Amend Sec. 268.101 to prohibit discrimination on the basis
of genetic information to ensure compliance with the Genetic
Information Nondiscrimination Act of 2008 (GINA) and to make
conforming changes throughout to reflect this change.
2. Amend Sec. 268.102(b)(3) to clarify that the Board follows
EEOC guidance and management directives relating to advice for
ensuring compliance with Title VII, the Equal Pay Act, the Age
Discrimination in Employment Act, GINA, and the Rehabilitation Act.
3. Amend Sec. 268.1 to remove references to hiring and granting
information access since those rules will be incorporated into
internal Board policies;
4. Amend Sec. 268.106(a)(5) to adopt the EEOC's rule requiring
dismissal of complaints that allege discrimination on the basis of
proposed personnel actions or other preliminary steps unless the
complainant has alleged that the proposal or preliminary step is
retaliatory;
5. Amend Sec. 268.107(e) to require Board staff, EEO
investigators, and complainants to comply with the Board's program
for the security of Federal Open Market Committee (FOMC) information
when investigating and processing complaints that require access to
FOMC information;
6. Amend Sec. 268.107(g) to adopt the EEOC's rule on
investigating complaints which requires agencies that have not
completed an investigation within EEOC's time limits to send a
notice to the complainant indicating the investigation is not
complete, providing the date by which it will be completed, and
explaining that the complainant has the right to request a hearing
or file a lawsuit;
7. Amend Sec. 268.201 to reflect updated address information
for the EEOC;
8. Amend Sec. 268.203 to more closely reflect the EEOC's
approach to designing an affirmative action plan for individuals
with disabilities;
9. Amend Sec. Sec. 268.204 and 268.401 to reflect the EEOC's
rules for processing class complaints;
10. Remove Sec. 268.205 since its subject is not related to
equal employment opportunity
[[Page 27028]]
rules and since rules for hiring and granting access to information
will be incorporated into the Board's internal policies;
11. Remove Sec. 268.302 to eliminate procedures for handling
mixed case complaints since mixed case complaints cannot be brought
against the Board;
12. Amend Sec. 268.403 to update address information and to
incorporate the EEOC's rule that agencies submit appellate records
and complaint files to the EEOC in a digital format that is
acceptable to the EEOC;
13. Add a new Sec. 268.405(b) to adopt the EEOC's procedures
for class complaints which provide that an administrative judge's
decision on the merits of a class complaint is a final decision
which the Board can fully implement or appeal in its final action
and to provide for expedited processing of appeals of decisions to
accept or dismiss class complaints;
14. Amend Sec. 268.502(c) to adopt the EEOC's rule which
permits agencies up to 120 days to provide the particular relief the
EEOC ordered; and
15. Amend Sec. 268.710 to make changes to headings and titles
to conform to the EEOC's rules and to the Board's functional titles.
Changes To Align With EEOC Rules
Except as described below, the above changes are necessary to align
the Board's employment practices and complaint processing with the
EEOC's rules. The revisions to part 268 align the Board's practices
with changes the EEOC has made to its rules on Federal Sector Equal
Employment Opportunity found at 29 CFR part 1614. In addition, the
amendment to Sec. 268.102(b)(3) clarifies that the Board follows
Commission guidance and management directives relating to advice for
ensuring compliance with Title VII, the Equal Pay Act, the Age
Discrimination in Employment Act, GINA, and the Rehabilitation Act.
Complying With FOMC Security Requirements
Currently part 268 requires Board staff, EEO investigators, and
complainants to protect confidential information of the Board but does
not expressly address confidential FOMC information. Because it is
conceivable that a complainant could require access to FOMC
information, and because FOMC information is not solely Board
information, the Board is amending Sec. 268.107(e)(2) to expressly
require those seeking access to FOMC information to agree to abide by
the Program for Security of FOMC Information before being granted
access to such information. This will ensure that FOMC information is
protected in the same manner as other confidential Board information.
Remove Rules Related to Hiring and Granting Information Access
The revisions also eliminate Sec. 268.205, which discusses the
Board's rules for hiring non-citizens and for allowing access to
confidential supervisory information (CSI) and FOMC information. The
subject matter of this section is not relevant to the Board's equal
employment opportunity rules. Thus, the revisions remove this section
from the Board's equal employment opportunity regulation. Going
forward, rules relating to the hiring of non-citizens and governing
access to CSI and FOMC information will be incorporated in the Board's
internal management policies.
Eliminate References to Mixed Case Complaints
The revisions eliminate Sec. 268.302, which addressed procedures
that apply to ``mixed case complaints.'' A mixed case complaint is an
employment complaint which raises violations of both EEO laws (over
which the EEOC retains jurisdiction) and merit system principles,
created by certain civil service laws over which the Merit Systems
Protection Board (MSPB) retains jurisdiction. The Board is not subject
to the MSPB's jurisdiction in light of its employment authorities under
the Federal Reserve Act. Thus, the revisions remove this provision of
the regulation.
Update Titles To Reflect the Board's Organizational Structure
The revisions to subpart H reflect changes to the Board's
organizational structure since the last time the Board updated its EEO
Regulation. Subpart H prohibits discrimination on the basis of
disability in programs or activities conducted by the Board and
describes how to file complaints alleging such discrimination. The
complaint process described in subpart H incorporates references to
position titles that are no longer in use at the Board. For example,
subpart H refers to the Equal Employment Opportunity Office, which has
since been replaced by the Office of Diversity and Inclusion; to an EEO
Program Director, which has since been replaced by the Office of
Diversity and Inclusion Program Director; and to a Staff Director for
Management, which has been replaced by the Chief Operating Officer. The
amendments to subpart H replace the out-of-date titles with up-to-date
information each place the rule refers to such titles.
I. Regulatory Analysis
A. Paperwork Reduction Act
Certain provisions of the rule contain ``collection of
information'' requirements within the meaning of the Paperwork
Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521). In accordance with
the requirements of the PRA, the Board may not conduct or sponsor, and
the respondent is not required to respond to, an information collection
unless it displays a currently valid Office of Management and Budget
(OMB) control number. The Board will address the information collection
requirements associated with this rule under a separate Federal
Register notice.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires a
regulatory flexibility analysis only for rules that will have a
significant impact on a substantial number of small entities. Because
this rulemaking applies exclusively to Board employees and applicants
for employment, the Regulatory Flexibility Act does not apply.
C. Plain Language
Section 722 of the Gramm-Leach-Bliley Act requires each Federal
banking agency to use plain language in all rules published after
January 1, 2000. In light of this requirement, the Board believes this
rule is presented in a simple and straightforward manner and is
consistent with this ``plain language'' directive.
List of Subjects in 12 CFR Part 268
Administrative practice and procedure, Aged, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Genetic
information, Government employees, Individuals with disabilities,
Religious discrimination, Sex discrimination, Wages.
Authority and Issuance
For the reasons set forth in the preamble, the Board is amending 12
CFR part 268 as set forth below:
PART 268--RULES REGARDING EQUAL OPPORTUNITY
0
1. The authority citation for part 268 continues to read as follows:
Authority: 12 U.S.C. 244 and 248(i), (k) and (l).
0
2. In Sec. 268.1, revise paragraph (b) to read as follows:
[[Page 27029]]
Sec. 268.1 Authority, purpose and scope.
* * * * *
(b) Purpose and scope. This part sets forth the Board's policy,
program and procedures for providing equal opportunity to Board
employees and applicants for employment without regard to race, color,
religion, sex, national origin, age, disability, or genetic
information. It also sets forth the Board's policy, program and
procedures for prohibiting discrimination on the basis of disability in
programs and activities conducted by the Board.
0
3. Revise Sec. 268.101 to read as follows:
Sec. 268.101 General policy for equal opportunity.
(a) It is the policy of the Board 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 promote the full realization
of equal opportunity in employment through a continuing affirmative
program.
(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.
0
4. Amend Sec. 268.102 by:
0
a. Revising paragraph (a)(4);
0
b. Removing the semicolon at the end of paragraph (b)(1) and adding a
period in its place;
0
c. Revising paragraphs (b)(3) and (4); and
0
d. Removing the semicolons at the ends of paragraphs (b)(5) and (6) and
adding periods in their place.
The revisions read as follows:
Sec. 268.102 Board program for equal employment opportunity.
(a) * * *
(4) Communicate the Board'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;
* * * * *
(b) * * *
(3) Appraise its personnel operations at regular intervals to
assure their conformity with the Board's program, this part and the
instructions contained in the Commission's management directives
relating to advice for ensuring compliance with the provisions of title
VII, the Equal Pay Act, the Age Discrimination in Employment Act, GINA,
and the Rehabilitation Act.
(4) Designate a Director for Equal Employment Opportunity (EEO
Programs Director), EEO Officer(s), and such Special Emphasis Program
Managers/Coordinators (e.g., People with Disabilities Program, Federal
Women's Program and Hispanic Employment Program), clerical and
administrative support as may be necessary to carry out the functions
described in this part in all organizational units of the Board and at
all Board installations. The EEO Programs Director shall be under the
immediate supervision of the Chair. The EEO Programs Director may also
serve as the Director of the Office of Diversity and Inclusion.
* * * * *
0
5. In Sec. 268.103, revise paragraph (a) to read as follows:
Sec. 268.103 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 person 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 the statutes listed in
this paragraph (a) are considered to be complaints of discrimination
for purposes of this part.
* * * * *
0
6. In Sec. 268.104, revise paragraphs (a) introductory text and (d) to
read as follows:
Sec. 268.104 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.
* * * * *
(d) Unless the aggrieved person agrees to a longer counseling
period under paragraph (e) of this section, or the aggrieved person
chooses an alternative dispute resolution procedure in accordance with
paragraph (b)(2) of this section, the Counselor shall conduct the final
interview with the aggrieved person within 30 days of the date the
aggrieved person contacted the Board's Office of Diversity and
Inclusion to request counseling. If the matter has not been resolved,
the aggrieved person shall be informed in writing by the Counselor, not
later than the thirtieth day after contacting the Counselor, of the
right to file a discrimination complaint with the Board. This notice
shall inform the complainant of the right to file a discrimination
complaint within 15 days of receipt of the notice, of the appropriate
official with whom to file a complaint and of the complainant's duty to
assure that the Programs Director is informed immediately if the
complainant retains counsel or a representative.
* * * * *
0
7. In Sec. 268.106, remove and reserve paragraph (a)(4) and revise
paragraph (a)(5) to read as follows:
Sec. 268.106 Dismissals of complaints.
(a) * * *
(5) That is moot or alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory, unless the complaint alleges that the proposal or
preliminary step is retaliatory;
* * * * *
0
8. Amend Sec. 268.107 by:
0
a. Adding a sentence at the end of paragraph (e)(2); and
0
b. Redesignating paragraph (g) as paragraph (h) and adding new
paragraph (g).
The additions read as follows.
Sec. 268.107 Investigation of complaints.
* * * * *
(e) * * *
(2) * * * Confidential supervisory information, as defined in 12
CFR 261.2(c), and other confidential information of the Board may be
included in the investigative file by the investigator, the EEO
Programs Director, or another appropriate officer of the Board, where
such information is relevant to the complaint. Neither the complainant
nor the complainant's personal representative may make further
disclosure of such information, however, except in compliance with the
Board's Rules Regarding Availability of Information, 12 CFR part 261,
and
[[Page 27030]]
where applicable, the Board's Rules Regarding Access to Personal
Information under the Privacy Act of 1974, 12 CFR part 261a. Any party
or individual, including an investigator, who requires access to FOMC
information must agree to abide by the Program for Security of FOMC
Information before being granted access to such information.
* * * * *
(g) If the Board does not send the notice required in paragraph (f)
of this section within the applicable time limits, it shall, within
those same time limits, issue a written notice to the complainant
informing the complainant that it has been unable to complete its
investigation within the time limits required by paragraph (f) and
estimating a date by which the investigation will be completed.
Further, the notice must explain that if the complainant does not want
to wait until the agency completes the investigation, he or she may
request a hearing in accordance with paragraph (h) of this section, or
file a civil action in an appropriate United States District Court in
accordance with Sec. 268.406(b). Such notice shall contain information
about the hearing procedures.
* * * * *
0
9. In Sec. 268.108, revise the heading of paragraph (g) to read as
follows:
Sec. 268.108 Hearings.
* * * * *
(g) Summary judgement. * * *
* * * * *
0
10. In Sec. 268.201, revise paragraphs (a) and (c) introductory text
to read as follows:
Sec. 268.201 Age Discrimination in Employment Act.
(a) As an alternative to filing a complaint under this part, an
aggrieved individual may file a civil action in a United States
district court under the ADEA against the agency after giving the
Commission not less than 30 days' notice of the intent to file such an
action. Such notice must be filed in writing with EEOC, at P.O. Box
77960, Washington, DC 20013, or by personal delivery or facsimile
within 180 days of the occurrence of the alleged unlawful practice.
* * * * *
(c) When an individual has filed an administrative complaint
alleging age discrimination, administrative remedies will be considered
to be exhausted for purposes of filing a civil action:
* * * * *
0
11. Revise Sec. 268.203 to read as follows:
Sec. 268.203 Rehabilitation Act.
(a) Definitions. The following definitions apply for purposes of
this section:
(1) The term ADA means title I of the Americans with Disabilities
Act of 1990, as amended (42 U.S.C. 12101 through 12117), title V of the
Americans with Disabilities Act, as amended (42 U.S.C. 12201 through
12213), as it applies to employment, and the regulations of the Equal
Employment Opportunity Commission implementing titles I and V of the
ADA at 29 CFR part 1630.
(2) The term disability means disability as defined under 29 CFR
1630.2(g) through (l).
(3) The term hiring authority that takes disability into account
means a hiring authority established under written Board policy that
permits the Board to consider disability status during the hiring
process.
(4) The term personal assistance service provider means an employee
or independent contractor whose primary job functions include provision
of personal assistance services.
(5) The term personal assistance services means assistance with
performing activities of daily living that an individual would
typically perform if he or she did not have a disability, and that is
not otherwise required as a reasonable accommodation, including, for
example, assistance with removing and putting on clothing, eating, and
using the restroom.
(6) The term Plan means an affirmative action plan for the hiring,
placement, and advancement of individuals with disabilities.
(7) [Reserved]
(8) The term Section 501 means section 501 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 791).
(9) The term targeted disability means a developmental disability,
such as cerebral palsy or autism spectrum disorder; a traumatic brain
injury; deafness or serious difficulty hearing, benefiting from, for
example, American Sign Language, communication access real-time
translation (CART), hearing aids, a cochlear implant and/or other
supports; blindness or serious difficulty seeing even when wearing
glasses; missing extremities (such as an arm, leg, hand and/or foot); a
significant mobility impairment benefiting from, for example, the
utilization of a wheelchair; partial or complete paralysis; epilepsy or
other seizure disorders; an intellectual disability (formerly described
as mental retardation); a significant psychiatric disorder such as
bipolar disorder, schizophrenia, post-traumatic stress disorder (PTSD),
or major depression; dwarfism; or a significant disfigurement such as
significant disfigurements caused by burns, wounds, accidents, or
congenital disorders.
(10) The term undue hardship has the meaning set forth in 29 CFR
part 1630.
(b) Nondiscrimination. The Board shall not discriminate on the
basis of disability in regard to the hiring, advancement or discharge
of employees, employee compensation, job training, or other terms,
conditions, and privileges of employment. The standards used to
determine whether Section 501 has been violated in a complaint alleging
employment discrimination under this part shall be the standards
applied under the ADA.
(c) Model employer. The Board shall be a model employer of
individuals with disabilities. The Board shall give full consideration
to the hiring, advancement, and retention of qualified individuals with
disabilities in its workforce. The Board shall also take affirmative
action to promote the recruitment, hiring, and advancement of qualified
individuals with disabilities, with the goal of eliminating under-
representation of individuals with disabilities in the Board's
workforce.
(d) Affirmative action plan. The Board shall adopt and implement a
Plan that provides sufficient assurances, procedures, and commitments
to provide adequate hiring, placement, and advancement opportunities
for individuals with disabilities at all levels of Board employment.
The Board's Plan must meet the following criteria:
(1) Disability hiring and advancement program--(i) Recruitment. The
Plan shall require the Board to take specific steps to ensure that a
broad range of individuals with disabilities, including individuals
with targeted disabilities, will be aware of and be encouraged to apply
for job vacancies when eligible. Such steps shall include, at a
minimum--
(A) Use of programs and resources that identify job applicants with
disabilities, including individuals with targeted disabilities, who are
eligible to be appointed under a hiring authority that takes disability
into account, examples of which could include programs that provide the
qualifications necessary for particular positions within the Board to
individuals with disabilities, databases of individuals with
disabilities who previously applied to the Board but were not hired for
the positions they applied for, and training and internship programs
that lead directly to employment for individuals with disabilities; and
(B) Establishment and maintenance of contacts (which may include
formal
[[Page 27031]]
agreements) with organizations that specialize in providing assistance
to individuals with disabilities, including individuals with targeted
disabilities, in securing and maintaining employment, such as American
Job Centers, State Vocational Rehabilitation Agencies, the Veterans'
Vocational Rehabilitation and Employment Program, Centers for
Independent Living, and Employment Network service providers.
(ii) Application process. The Plan shall ensure that the Board has
designated sufficient staff to handle any disability-related issues
that arise during the application and selection processes, and shall
require the Board to provide such individuals with sufficient training,
support, and other resources to carry out their responsibilities under
this section. Such responsibilities shall include, at a minimum--
(A) Ensuring that disability-related questions from members of the
public regarding the agency's application and selection processes are
answered promptly and correctly, including questions about reasonable
accommodations needed by job applicants during the application and
selection processes and questions about how individuals may apply for
appointment under hiring authorities that take disability into account;
(B) Processing requests for reasonable accommodations needed by job
applicants during the application and placement processes, and ensuring
that the Board provides such accommodations when required to do so
under the standards set forth in 29 CFR part 1630;
(C) Accepting applications for appointment under hiring authorities
that take disability into account, if permitted under written Board
policy;
(D) If an individual has applied for appointment to a particular
position under a hiring authority that takes disability into account,
determining whether the individual is eligible for appointment under
such authority, and, if so, forwarding the individual's application to
the relevant hiring officials with an explanation of how and when the
individual may be appointed, consistent with all applicable laws; and
(E) Overseeing any other Board programs designed to increase hiring
of individuals with disabilities.
(iii) Advancement program. The Plan shall require the Board to take
specific steps to ensure that current employees with disabilities have
sufficient opportunities for advancement. Such steps may include, for
example--
(A) Efforts to ensure that employees with disabilities are informed
of and have opportunities to enroll in relevant training, including
management training when eligible;
(B) Development or maintenance of a mentoring program for employees
with disabilities; and
(C) Administration of exit interviews that include questions on how
the Board could improve the recruitment, hiring, inclusion, and
advancement of individuals with disabilities.
(2) Disability anti-harassment policy. The Plan shall require the
Board to state specifically in its anti-harassment policy that
harassment based on disability is prohibited, and to include in its
training materials examples of the types of conduct that would
constitute disability-based harassment.
(3) Reasonable accommodation--(i) Procedures. The Plan shall
require the Board to adopt, post on its public website, and make
available to all job applicants and employees in written and accessible
formats, reasonable accommodation procedures that are easy to
understand and that, at a minimum--
(A) Explain relevant terms such as ``reasonable accommodation,''
``disability,'' ``interactive process,'' ``qualified,'' and ``undue
hardship,'' consistent with applicable statutory and regulatory
definitions, using examples where appropriate;
(B) Explain that reassignment to a vacant position for which an
employee is qualified, and not just permission to compete for such
position, is a reasonable accommodation, and that the Board must
consider providing reassignment to a vacant position as a reasonable
accommodation when it determines that no other reasonable accommodation
will permit an employee with a disability to perform the essential
functions of his or her current position;
(C) Notify supervisors and other relevant Board employees how and
where they are to conduct searches for available vacancies when
considering reassignment as a reasonable accommodation;
(D) Explain that an individual may request a reasonable
accommodation orally or in writing at any time, need not fill out any
specific form in order for the interactive process to begin, and need
not have a particular accommodation in mind before making a request,
and that the request may be made to a supervisor or manager in the
individual's chain of command, the office designated by the Board to
oversee the reasonable accommodation process, any Board employee
connected with the application process, or any other individual
designated by the Board to accept such requests;
(E) Include any forms the Board uses in connection with a
reasonable accommodation request as attachments, and indicate that such
forms are available in alternative formats that are accessible to
people with disabilities;
(F) Describe the Board's process for determining whether to provide
a reasonable accommodation, including the interactive process, and
provide contact information for the individual or program office from
whom requesters will receive a final decision;
(G) Provide guidance to supervisors on how to recognize requests
for reasonable accommodation;
(H) Require that decision makers communicate, early in the
interactive process and periodically throughout the process, with
individuals who have requested a reasonable accommodation;
(I) Explain when the Board may require an individual who requests a
reasonable accommodation to provide medical information that is
sufficient to explain the nature of the individual's disability, his or
her need for reasonable accommodation, and how the requested
accommodation, if any, will assist the individual to apply for a job,
perform the essential functions of a job, or enjoy the benefits and
privileges of the workplace;
(J) Explain the Board's right to request relevant supplemental
medical information if the information submitted by the requester is
insufficient for the purposes specified in paragraph (d)(3)(i)(I) of
this section;
(K) Explain the Board's right to have medical information reviewed
by a medical expert of the Board's choosing at the Board's expense;
(L) Explain the Board's obligation to keep medical information
confidential, in accordance with applicable laws and regulations, and
the limited circumstances under which such information may be
disclosed;
(M) Designate the maximum amount of time the Board has, absent
extenuating circumstances, to either provide a requested accommodation
or deny the request, and explain that the time limit begins to run when
the accommodation is first requested;
(N) Explain that the Board will not be expected to adhere to its
usual timelines if an individual's health professional fails to provide
needed documentation in a timely manner;
(O) Explain that, where a particular reasonable accommodation can
be provided in less than the maximum amount of time permitted under
paragraph (d)(3)(i)(M) of this section, failure to provide the
accommodation in a prompt manner may result in a violation of the
Rehabilitation Act;
[[Page 27032]]
(P) Provide for expedited processing of requests for reasonable
accommodations that are needed sooner than the maximum allowable time
frame permitted under paragraph (d)(3)(i)(M) of this section;
(Q) Explain that, when all the facts and circumstances known to the
Board make it reasonably likely that an individual will be entitled to
a reasonable accommodation, but the accommodation cannot be provided
immediately, the Board shall provide an interim accommodation that
allows the individual to perform some or all of the essential functions
of his or her job, if it is possible to do so without imposing undue
hardship on the Board;
(R) Inform applicants and employees how they may track the
processing of requests for reasonable accommodation;
(S) Explain that, where there is a delay in either processing a
request for or providing a reasonable accommodation, the Board must
notify the individual of the reason for the delay, including any
extenuating circumstances that justify the delay;
(T) Explain that individuals who have been denied reasonable
accommodations have the right to file complaints pursuant to 12 CFR
268.105;
(U) Encourage the use of voluntary informal dispute resolution
processes that individuals may use to obtain prompt reconsideration of
denied requests for reasonable accommodation;
(V) Provide that the Board shall give the requester a notice
consistent with the requirements of paragraph (d)(3)(iii) of this
section at the time a request for reasonable accommodation is denied;
and
(W) Provide information on how to access additional information
regarding reasonable accommodation, including, at a minimum, Commission
guidance and technical assistance documents.
(ii) Cost of accommodations. The Plan shall require the Board to
take specific steps to ensure that requests for reasonable
accommodation are not denied for reasons of cost, and that individuals
with disabilities are not excluded from employment due to the
anticipated cost of a reasonable accommodation, if the resources
available to the Board as a whole, excluding those designated by
statute for a specific purpose that does not include reasonable
accommodation, would enable it to provide an effective reasonable
accommodation without undue hardship. Such steps shall be reasonably
designed to, at a minimum--
(A) Ensure that anyone who is authorized to grant or deny requests
for reasonable accommodation or to make hiring decisions is aware that,
pursuant to the regulations implementing the undue hardship defense at
29 CFR part 1630, all resources available to the agency as a whole,
excluding those designated by statute for a specific purpose that does
not include reasonable accommodation, are considered when determining
whether a denial of reasonable accommodation based on cost is lawful;
and
(B) Ensure that anyone authorized to grant or deny requests for
reasonable accommodation or to make hiring decisions is aware of, and
knows how to arrange for the use of, Board resources available to
provide the accommodation, including any centralized fund the Board may
have for that purpose.
(iii) Notification of basis for denial. The Plan shall require the
Board to provide a job applicant or employee who is denied a reasonable
accommodation with a written notice at the time of the denial, in an
accessible format when requested, that--
(A) Explains the reasons for the denial and notifies the job
applicant or employee of any available internal appeal or informal
dispute resolution processes;
(B) Informs the job applicant or employee of the right to challenge
the denial by filing a complaint of discrimination under this part;
(C) Provides instructions on how to file such a complaint; and
(D) Explains that, pursuant to 12 CFR 268.105, the right to file a
complaint will be lost unless the job applicant or employee initiates
contact with an EEO Counselor within 45 days of the denial, regardless
of whether the applicant or employee participates in an informal
dispute resolution process.
(4) Accessibility of facilities and technology--(i) Notice of
rights. The Plan shall require the Board to adopt, post on its public
website, and make available to all employees in written and accessible
formats, a notice that--
(A) Explains their rights under Section 508 of the Rehabilitation
Act of 1973, 29 U.S.C. 794d, concerning the accessibility of agency
technology, and the Architectural Barriers Act, 42 U.S.C. 4151 through
4157, concerning the accessibility of agency building and facilities;
(B) Provides contact information for a Board employee who is
responsible for ensuring the physical accessibility of the Board's
facilities under the Architectural Barriers Act of 1968, and a Board
employee who is responsible for ensuring that the electronic and
information technology purchased, maintained, or used by the agency is
readily accessible to, and usable by, individuals with disabilities, as
required by Section 508 of the Rehabilitation Act of 1973; and
(C) Provides instructions on how to file complaints alleging
violations of the accessibility requirements of the Architectural
Barriers Act of 1968 and Section 508 of the Rehabilitation Act of 1973.
(ii) Assistance with filing complaints at other agencies. If the
Board's investigation of a complaint filed under Section 508 of the
Rehabilitation Act of 1973 or the Architectural Barriers Act of 1968
shows that a different entity is responsible for the alleged violation,
the Plan shall require the Board to inform the individual who filed the
complaint where he or she may file a complaint against the other
entity, if possible.
(5) Personal assistance services allowing employees to participate
in the workplace--(i) Obligation to provide personal assistance
services. The Plan shall require the Board to provide an employee with,
in addition to professional services required as a reasonable
accommodation under the standards set forth in 29 CFR part 1630,
personal assistance services during work hours and job-related travel
if--
(A) The employee requires such services because of a targeted
disability;
(B) Provision of such services would, together with any reasonable
accommodations required under the standards set forth in 29 CFR part
1630, enable the employee to perform the essential functions of his or
her position; and
(C) Provision of such services would not impose undue hardship on
the Board.
(ii) Service providers. The Plan shall state that personal
assistance services required under paragraph (d)(5)(i) of this section
must be performed by a personal assistance service provider. The Plan
may permit the Board to require personal assistance service providers
to provide personal assistance services to more than one individual.
The Plan may also permit the Board to require personal assistance
service providers to perform tasks unrelated to personal assistance
services, but only to the extent that doing so does not result in
failure to provide personal assistance services required under
paragraph (d)(5)(i) of this section in a timely manner.
(iii) No adverse action. The Plan shall prohibit the Board from
taking adverse actions against job applicants or employees based on
their need for, or perceived need for, personal assistance services.
(iv) Selection of personal assistance service providers. The Plan
shall require
[[Page 27033]]
the Board, when selecting someone who will provide personal assistance
services to a single individual, to give primary consideration to the
individual's preferences to the extent permitted by law.
(v) Written procedures. The Plan shall require the Board to adopt,
post on its public website, and make available to all job applicants
and employees in written and accessible formats, procedures for
processing requests for personal assistance services. The Board may
satisfy the requirement in this paragraph (d)(5)(v) by stating, in the
procedures required under paragraph (d)(3)(i) of this section, that the
process for requesting personal assistance services, the process for
determining whether such services are required, and the Board's right
to deny such requests when provision of the services would pose an
undue hardship, are the same as for reasonable accommodations.
(6) Utilization analysis--(i) Current utilization. The Plan shall
require the Board to perform a workforce analysis annually to determine
the percentage of its employees at each grade and salary level who have
disabilities, and the percentage of its employees at each grade and
salary level who have targeted disabilities.
(ii) Source of data. For purposes of the analysis required under
paragraph (d)(6)(i) of this section an employee may be classified as an
individual with a disability or an individual with a targeted
disability on the basis of--
(A) The individual's self-identification as an individual with a
disability or an individual with a targeted disability on a form,
including but not limited to the Office of Personnel Management's
Standard Form 256, which states that the information collected will be
kept confidential and used only for statistical purposes, and that
completion of the form is voluntary;
(B) Records relating to the individual's appointment under a hiring
authority that takes disability into account, if applicable; and
(C) Records relating to the individual's requests for reasonable
accommodation, if any.
(iii) Data accuracy. The Plan shall require the Board to take steps
to ensure that data collected pursuant to paragraph (d)(6)(i) of this
section are accurate.
(7) Goals--(i) Adoption. The Plan shall commit the Board to the
goal of ensuring that--
(A) No less than 12% of employees who have salaries equal to or
greater than employees at the GS-11, step 1 level in the Washington, DC
locality, are individuals with disabilities;
(B) No less than 12% of employees who have salaries less than
employees at the GS-11, step 1 level in the Washington, DC locality,
are individuals with disabilities;
(C) No less than 2% of employees who have salaries equal to or
greater than employees at the GS-11, step 1 level in the Washington, DC
locality, are individuals with targeted disabilities; and
(D) No less than 2% of employees who have salaries less than
employees at the GS-11, step 1 level in the Washington, DC locality,
are individuals with targeted disabilities.
(ii) Progression toward goals. The Plan shall require the Board to
take specific steps that are reasonably designed to gradually increase
the number of persons with disabilities or targeted disabilities
employed at the Board until it meets the goals established pursuant to
paragraph (d)(7)(i) of this section. Examples of such steps include,
but are not limited to--
(A) Increased use of hiring authorities that take disability into
account to hire or promote individuals with disabilities or targeted
disabilities, as applicable;
(B) To the extent permitted by applicable laws, consideration of
disability or targeted disability status as a positive factor in
hiring, promotion, or assignment decisions;
(C) Disability-related training and education campaigns for all
employees in the Board;
(D) Additional outreach or recruitment efforts;
(E) Increased efforts to hire and retain individuals who require
supported employment because of a disability, who have retained the
services of a job coach at their own expense or at the expense of a
third party, and who may be given permission to use the job coach
during work hours as a reasonable accommodation without imposing undue
hardship on the Board; and
(F) Adoption of training, mentoring, or internship programs for
individuals with disabilities.
(8) Recordkeeping. The Plan shall require the Board to keep records
that it may use to determine whether it is complying with the
nondiscrimination and affirmative action requirements imposed under
Section 501, and to make such records available to the Commission upon
the Commission's request, including, at a minimum, records of--
(i) The number of job applications received from individuals with
disabilities, and the number of individuals with disabilities who were
hired by the Board;
(ii) The number of job applications received from individuals with
targeted disabilities, and the number of individuals with targeted
disabilities who were hired by the Board;
(iii) All rescissions of conditional job offers, demotions, and
terminations taken against applicants or employees as a result of
medical examinations or inquiries;
(iv) All Board employees hired under special hiring authority for
person with certain disabilities, and each such employee's date of
hire, entering grade level, probationary status, and current grade
level;
(v) The number of employees appointed under special hiring
authority for persons with certain disabilities who successfully
completed the Board's Provisional Employment period and the number of
such employees who were terminate prior to the end of their Provisional
Employment period; and
(vi) Details about each request for reasonable accommodation
including, at a minimum--
(A) The specific reasonable accommodation requested, if any;
(B) The job sought by the requesting applicant or held by the
requesting employee;
(C) Whether the accommodation was needed to apply for a job,
perform the essential functions of a job, or enjoy the benefits and
privileges of employment;
(D) Whether the request was granted (which may include an
accommodation different from the one requested) or denied;
(E) The identity of the deciding official;
(F) If denied, the basis for such denial; and
(G) The number of days taken to process the request.
(e) Reporting--(1) Submission to the Commission. On an annual basis
the Board shall submit to the Commission at such time and in such
manner as the Commission deems appropriate--
(i) A copy of its current Plan;
(ii) The results of the two most recent workforce analyses
performed pursuant to paragraph (d)(6) of this section showing the
percentage of employees with disabilities and employees with targeted
disabilities in each of the designated pay groups;
(iii) The number of individuals appointed to positions within the
Board under special hiring authority for persons with certain
disabilities during the previous year, and the total number of
employees whose employment at the Board began by appointment under
special hiring authority for persons with certain disabilities; and
[[Page 27034]]
(iv) A list of changes made to the Plan since the prior submission,
if any, and an explanation of why those changes were made.
(2) Availability to the public. The Board shall make the
information submitted to the Commission pursuant to paragraph (e)(1) of
this section available to the public by, at a minimum, posting a copy
of the submission on its public website and providing a means by which
members of the public may request copies of the submission in
accessible formats.
0
12. In Sec. 268.204, revise paragraphs (i) through (k) and the third
sentence of paragraph (l)(3) to read as follows:
Sec. 268.204 Class complaints.
* * * * *
(i) Decisions. The administrative judge shall transmit to the
agency and class agent a decision on the complaint, including findings,
systemic relief for the class and any individual relief, where
appropriate, with regard to the personnel action or matter that gave
rise to the complaint. If the administrative judge finds no class
relief appropriate, he or she shall determine if a finding of
individual discrimination is warranted and if so, shall order
appropriate relief.
(j) Board final action. (1) Within 60 days of receipt of the
administrative judge's decision on the complaint, the Board shall take
final action by issuing a final order. The final order shall notify the
class agent whether or not the Board will fully implement the decision
of the administrative judge and shall contain notice of the class
agent's right to appeal to the Commission, the right to file a civil
action in Federal district court, the name of the proper defendant in
any such lawsuit, and the applicable time limits for appeals and
lawsuits. If the final order does not fully implement the decision of
the administrative judge, then the Board shall simultaneously file an
appeal in accordance with Sec. 268.403 and append a copy of the appeal
to the final order. A copy of EEOC Form 573 shall be attached to the
final order.
(2) If the Board does not issue a final order within 60 days of
receipt of the administrative judge's decision, then the decision of
the administrative judge shall become the final action of the Board.
(3) A final order on a class complaint shall, subject to subpart E
of this part, be binding on all members of the class and the Board.
(k) Notification of final action. The Board shall notify class
members of the final action and the relief awarded, if any, through the
same media employed to give notice of the existence of the class
complaint. The notice, where appropriate, shall include information
concerning the rights of class members to seek individual relief, and
of the procedures to be followed. Notice shall be given by the Board
within 10 days of the transmittal of the final action to the agent.
(l) * * *
(3) * * * The claim must include a specific detailed showing that
the claimant is a class member who was affected by the discriminatory
policy or practice, and that this discriminatory action took place
within the period of time for which class-wide discrimination was found
in the final order. * * *
Sec. 268.205 [Removed and Reserved]
0
13. Remove and reserve Sec. 268.205.
Sec. 268.302 [Removed and Reserved]
0
14. Remove and reserve Sec. 268.302.
0
15. In Sec. 268.401, revise paragraph (c) to read as follows:
Sec. 268.401 Appeals to the Equal Employment Opportunity Commission.
* * * * *
(c) A class agent or the Board may appeal an administrative judge's
decision accepting or dismissing all or part of a class complaint; a
class agent may appeal the Board's final action or the Board may appeal
an administrative judge's decision on a class complaint; a class member
may appeal a final decision on a claim for individual relief under a
class complaint; and a class member, a class agent or the Board may
appeal a final decision on a petition pursuant to Sec. 268.204(g)(4).
* * * * *
0
16. In Sec. 268.403, revise paragraph (a) and add paragraph (g) to
read as follows:
Sec. 268.403 How to appeal.
(a) The complainant, the Board, agent or individual class claimant
(hereinafter appellant) must file an appeal with the Director, Office
of Federal Operations, Equal Employment Opportunity Commission, at P.O.
Box 77960, Washington, DC 20013, or electronically, or by personal
delivery or facsimile. The appellant should use EEOC Form 573, Notice
of Appeal/Petition, and should indicate what is being appealed.
* * * * *
(g) The Board will submit appeals, complaint files, and other
filings to the Commission's Office of Federal Operations in a digital
format acceptable to the Commission, absent a showing of good cause why
the Board cannot submit digital records. Appellants are encouraged, but
not required, to submit digital appeals and supporting documentation to
the Commission's Office of Federal Operations in a format acceptable to
the Commission.
0
17. Revise Sec. 268.405 to read as follows:
Sec. 268.405 Decisions on appeals.
(a) The Office of Federal Operations, on behalf of the Commission,
shall issue a written decision setting forth its reasons for the
decision. The Commission shall dismiss appeals in accordance with
Sec. Sec. 268.106, 268.403(c) and 268.408. The decision shall be based
on the preponderance of the evidence. The decision on an appeal from
the Board's final action shall be based on a de novo review, except
that the review of the factual findings in a decision by an
administrative judge issued pursuant to Sec. 268.108(i) shall be based
on a substantial evidence standard of review. If the decision contains
a finding of discrimination, appropriate remedy(ies) shall be included
and, where appropriate, the entitlement to interest, attorney's fees or
costs shall be indicated. The decision shall reflect the date of its
issuance, inform the complainant of his or her civil action rights, and
be transmitted to the complainant and the Board by first class mail.
(b) The Office of Federal Operations, on behalf of the Commission,
shall issue decisions on appeals of decisions to accept or dismiss a
class complaint issued pursuant to Sec. 268.204(d)(7) within 90 days
of receipt of the appeal.
(c) A decision issued under paragraph (a) of this section is final
within the meaning of Sec. 268.406 unless the Board issues a final
decision under paragraph (d) of this section or unless a timely request
for reconsideration is filed by a party to the case. A party may
request reconsideration within 30 days of receipt of a decision of the
Commission, which the Commission in its discretion may grant, if the
party demonstrates that:
(1) The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
(2) The decision will have a substantial impact on the policies,
practices, or operations of the Board.
(d) The Board, within 30 days of receiving a decision of the
Commission, may issue a final decision based upon that decision, which
shall be final within the meaning of Sec. 268.406.
0
18. In Sec. 268.502, revise paragraphs (b)(2) and (c) to read as
follows:
Sec. 268.502 Compliance with final Commission decisions.
* * * * *
[[Page 27035]]
(b) * * *
(2) When the Board requests reconsideration, it may delay the
payment of any amounts ordered to be paid to the complainant until
after the request for reconsideration is resolved. If the Board delays
payment of any amount pending the outcome of the request to reconsider
and the resolution of the request (including under Sec. 268.405(d))
requires the Board to make the payment, then the Board shall pay
interest from the date of the original appellate decision until payment
is made.
* * * * *
(c) When no request for reconsideration or final decision under
Sec. 268.405(d) is filed or when a request for reconsideration is
denied, the Board shall provide the relief ordered and there is no
further right to delay implementation of the ordered relief. The relief
shall be provided in full not later than 120 days after receipt of the
final decision unless otherwise ordered in the decision.
0
19. In Sec. 268.504, revise paragraph (c) to read as follows:
Sec. 268.504 Compliance with settlement agreements and final actions.
* * * * *
(c) Prior to rendering its determination, the Commission may
request that the parties submit whatever additional information or
documentation it deems necessary or may direct that an investigation or
hearing on the matter be conducted. If the Commission determines that
the Board is not in compliance with a decision or a settlement
agreement, and the noncompliance is not attributable to acts or conduct
of the complainant, it may order such compliance with the decision or
settlement agreement, or, alternatively, for a settlement agreement, it
may order that the complaint be reinstated for further processing from
the point processing ceased. Allegations that subsequent acts of
discrimination violate a settlement agreement shall be processed as
separate complaints under Sec. 268.105 or Sec. 268.204, as
appropriate, rather than under this section.
0
20. Amend Sec. 268.710 by:
0
a. Removing the acronym ``EEO'' each place it appears;
0
b. Removing the words ``Staff Director for Management'' each place they
appear and add in their place the words ``Chief Operating Officer'';
and
0
c. Revising paragraphs (c) and (d)(4).
The revisions read as follows:
Sec. 268.710 Compliance procedures.
* * * * *
(c) Responsible official. The Office of Diversity and Inclusion
Programs Director (``Programs Director'') shall be responsible for
coordinating implementation of this section.
(d) * * *
(4) How to file. Complaints may be delivered or mailed to the
Administrative Governor, the Chief Operating Officer, the Programs
Director, the Federal Women's Program Manager, the Hispanic Employment
Program Coordinator, or the People with Disabilities Program
Coordinator. Complaints should be sent to the Programs Director, Office
of Diversity and Inclusion, Board of Governors of the Federal Reserve
System, 20th and C Street NW, Washington, DC 20551. If any Board
official other than the Programs Director receives a complaint, he or
she shall forward the complaint to the Programs Director.
* * * * *
By order of the Board of Governors of the Federal Reserve
System, May 29, 2019.
Ann Misback,
Secretary of the Board.
[FR Doc. 2019-11569 Filed 6-10-19; 8:45 am]
BILLING CODE 6210-01-P