[Federal Register Volume 69, Number 16 (Monday, January 26, 2004)]
[Rules and Regulations]
[Pages 3483-3492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1505]
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Rules and Regulations
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Federal Register / Vol. 69, No. 16 / Monday, January 26, 2004 / Rules
and Regulations
[[Page 3483]]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA74
Posting Requirements in Federal Sector Equal Employment
Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Interim final rule.
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SUMMARY: The Equal Employment Opportunity Commission (EEOC) is issuing
implementing rules under the No Fear Act regarding the posting of EEO
complaint processing data. The rules tell Federal agencies what
information to post, how to post it, and when to post it. EEOC wishes
to emphasize that these are interim final rules and therefore subject
to change based on the public comments EEOC receives.
DATES: This interim final rule is effective January 26, 2004. Comments
must be submitted on or before March 26, 2004.
ADDRESSES: Written comments should be submitted to Frances M. Hart,
Executive Officer, Executive Secretariat, Equal Employment Opportunity
Commission, 1801 L Street, NW., Washington, DC 20507. As a convenience
to commenters, the Executive Secretariat will accept comments of six
pages or less transmitted by facsimile (``FAX'') machine. The telephone
number of the FAX receiver is (202) 663-4114. This is not a toll free
number. The six-page limitation is necessary to assure access to the
equipment. Receipt of FAX transmissions will not be acknowledged
although a sender may request confirmation by calling the Executive
Secretariat at (202) 663-4078 (voice) or (202) 663-4077 (TTY). These
are not toll free numbers. Copies of comments submitted by the public
will be available for review at the Commission's library, room 6502,
1801 L Street NW., Washington, DC between the hours of 9:30 a.m. and 5
p.m.
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, Gary John Hozempa, Senior General Attorney or Mona Papillon,
Senior General Attorney at (202) 663-4669 (voice) or (202) 663-7026
(TTY). Copies of this interim 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.
SUPPLEMENTARY INFORMATION:
Introduction
EEOC is issuing rules to implement the posting requirements set
forth in Title III of the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (the No Fear Act), Pub.
L. 107-174. Pursuant to the No Fear Act, a federal agency must post on
its public Web site summary statistical data pertaining to complaints
of employment discrimination filed by employees, former employees and
applicants for employment under 29 CFR part 1614 (i.e., individual
complaints, class complaints, and mixed-case complaints--but not mixed-
case appeals that are filed with the U.S. Merit Systems Protection
Board or grievances raising claims of employment discrimination filed
under collective bargaining agreements). Title III authorizes EEOC to
issue rules concerning the ``time, form and manner'' of the postings,
to define the terms ``issue'' and ``basis,'' and to issue any other
``rules necessary to carry out'' Title III.
Section 301 of the No Fear Act specifically sets forth the
``summary statistical data'' that each agency must post. It requires an
agency to post quarterly year-to-date cumulative statistical data for
the then current fiscal year. An agency also must post year end data
for the five previous fiscal years or, if not available for all five
fiscal years, the required data to the extent available for those five
fiscal years. In addition, under section 302 of the No Fear Act, EEOC
must post fiscal year data pertaining to requests for hearings before
an EEOC administrative judge (AJ) and appeals filed with EEOC. The data
EEOC must post regarding hearings and appeals corresponds to that which
agencies are required to post under section 301. The interim rule uses
the same categories for posting hearings and appeals data that agencies
will be using for complaint processing to the extent those categories
are applicable to hearings and appeals.
The interim rule requires an agency to post its data in two
computer-readable formats, PDF and one text format that complies with
section 508 of the Rehabilitation Act. A link to an agency's No Fear
Act data also must be prominently displayed on the agency's home Web
page.
Congress has directed the time periods for which complaint data
must be captured, and the interim rule tracks these time frames.
Additionally, because Congress requires agencies to post the average
length of time to process complaints ``for each step of the process,''
EEOC has set forth definitions delineating the major steps of the
complaint process under 29 CFR part 1614. Lastly, Congress wants
agencies to list the number of complaints by basis and issue, so EEOC
has defined these terms.
In promulgating this interim rule, EEOC has been cognizant of the
fact that agencies already report to EEOC some of the data they are
required to post under the No Fear Act. Every executive branch agency
must submit to EEOC an ``Annual Federal Equal Employment Opportunity
Statistical Report of Discrimination Complaints,'' otherwise known as
EEOC Form 462. Wherever possible, EEOC has attempted to conform an
agency's posting requirements under the Act with the agency's Form 462
reporting obligations. In the event of future changes to Form 462
reporting requirements, the Commission will examine whether such
changes are relevant to the posting requirements under the Act.
The posting of EEO data on agency public Web sites is intended to
assist Congress, Federal agencies and the public to assess whether and
the extent to which agencies are living up to their equal employment
opportunity responsibilities. Currently, EEO data, such as that
reported on the Form 462, is reported to Congress by EEOC and is
available from EEOC or can be viewed on EEOC's public Web site.
Congress
[[Page 3484]]
concluded, however, that by having each agency post its own EEO data on
its public Web site, thereby more widely disseminating the data,
Congress, agencies, and the public would be better able to see how many
EEO complaints are filed at a particular agency, how many are filed
government wide, what the complaints are about, and what becomes of the
complaints. Moreover, it was determined that agency managers and
employees would have easier access to the data if it was posted on the
agency's public Web page. At the least, posting EEO data on its own Web
page should better enable agency personnel to identify and understand
the nature and scope of conflicts involving employment discrimination
within that agency, thereby affording all agencies another tool in
correcting any EEO problems that may exist.
Executive Order 12067
Pursuant to Executive Order 12067, EEOC circulated a draft of this
interim final rule to the heads of all federal executive branch
agencies. Twenty-four (24) agencies offered comments. The Commission
carefully considered all of the comments it received and incorporated a
number of the suggestions. Many of the comments suggested ways in which
to make the posting requirements clearer. For example, a number of
agencies expressed concern that the requirement that an agency post the
number of complaints in which an investigation is not timely completed
(Sec. 1614.704(l)) did not allow for authorized extensions of the
normal 180-day period. The Commission has clarified this section to
make it clear that a complaint is timely investigated if completed
within 180 days plus any valid extensions.
A few agencies opposed EEOC's proposal that an agency revise its
data where issues and bases are added to the initial allegations, on
the grounds that it would be difficult to do. Some also suggested that
if agencies must post the bases and issues that subsequently are added
to complaints, withdrawn issues and bases should be accounted for as
well. EEOC has decided to eliminate the requirement that agencies post
the issues and bases added by amendment. A few agencies pointed out
that not all agencies accept EEO complaints that are filed via email or
facsimile. EEOC has eliminated this language. A number of agencies
questioned EEOC's proposal to identify counseling as a step of the
complaint process, noting that not all counseling contacts result in a
formal complaint and that the No Fear Act requires posting only with
respect to complaints. EEOC has decided to eliminate counseling as a
defined step in the complaint process.
In a few places, EEOC's initial approach in implementing a
particular posting requirement was discarded because one or more
agencies suggested a better means of accomplishing the same result. For
example, in the initial draft, the Commission proposed that agencies
post both aggregate agency-wide data and separate data for their
respective subelements. The proposed regulation then went on to list
the affected subelements. A number of agencies pointed out that EEOC's
list was incomplete and that subelements can be subsequently created,
merged, or disbanded, thus making the list potentially obsolete. It was
suggested that a subelement be defined based on the number of employees
working at the subelement and that only those agencies with subelements
employing a threshold number of employees be required to post
subelement data. EEOC has adopted this approach. A question arose
whether subelements must post No Fear Act data on their public Web
sites. EEOC has decided not to mandate that subelements post their own
data because EEOC does not know if every subelement as defined by the
interim rule has a public Web site. Those which do have a public Web
site are required to have a hyperlink to the parent agency's posting of
the subelement's data.
Other parts of the proposed rule were not changed based on the
comments. EEOC did not eliminate the requirement that agencies post
data on dismissals. A few agencies argued that the No Fear Act does not
require agencies to post this information. EEOC believes that agency
dismissals represent a significant aspect of the EEO complaint process
and that the value in capturing this information outweighs the minimal
effort it will take to track and post this data. Agencies currently are
required to report dismissals to the EEOC on Form 462. At the
suggestion of a few agencies, EEOC revised this section of the rule to
make it clear that it does not apply to partial dismissals.
In a similar vein, a few agencies requested that the final rule
allow agencies to post data which they deem will present a more
complete view of the EEO process but which is not required to be posted
by the No Fear Act. The kind of data agencies would like to post
include the number of complaints in which no discrimination is found,
the number of complaints that are resolved through an agency's ADR
program, the number that are settled by other means, and the number
that are withdrawn. Some agencies want to post data regarding the
number of AJ findings of discrimination that are reversed on appeal,
and the number of findings of no discrimination that are reversed on
appeal. The Commission concludes that too many additional categories
will detract from those required to be posted under the Act. Therefore,
EEOC has not added any additional categories. Agencies, of course, are
free to post whatever EEO data they desire on their public Web sites so
long as it does not appear with their No Fear Act data. Agencies may
insert a hyperlink to this additional data on the page on which the No
Fear Act data appears.
A handful of agencies suggested EEOC eliminate the ``non-EEO
basis'' category under ``bases of discrimination'' because a complaint
that raises a non-EEO basis does not constitute an EEO complaint.
Therefore, they argued, such ``complaints'' need not be tracked for
purposes of the No Fear Act. Even a complaint that fails to state a
claim or raises a basis that is not covered by the EEO statutes,
however, must be processed by an agency, even if that means the
complaint is immediately dismissed. Moreover, EEOC believes it will be
helpful to see how many complaints that are filed under the 29 CFR part
1614 procedures do not raise the requisite jurisdictional basis.
Accordingly, EEOC has decided to keep the ``non-EEO basis'' category.
One agency objected to the requirement that a hyperlink to the No
Fear Act data be posted prominently on the agency's Web site homepage.
This agency argues that a hyperlink is not explicitly required by the
statute. While true, EEOC believes the hyperlink requirement falls well
within the ``time, form, and manner'' authority given to EEOC under the
Act. Additionally, given the fact that the No Fear Act data is one of
only a few categories of information which Congress has decreed be
posted by all executive branch agencies on their public Web sites, it
simply makes sense that members of the public be able to access this
data as easily as possible.
Some other suggested changes were not made because they were based
on a misreading of the draft regulations. In those instances, EEOC has
clarified the regulations and preamble to address the misunderstood
language. A number of agencies, for example, expressed the concern that
agencies would be held accountable for the time a complaint is with an
EEOC AJ. However, EEOC, and not the agencies, is required to post
hearing data.
A number of agencies requested that EEOC mandate a uniform format
for
[[Page 3485]]
posting. While EEOC considered mandating the format and layout that all
agencies would adhere to so that one agency's posted data would be
indistinguishable from another's in terms of look and feel, EEOC did
not initially propose such an approach because it was reluctant to
impose unilaterally a standardized posting design or format. As a
result of the agency comments, EEOC will revisit this issue, but will
do so during the public comment period. It is the obligation of
agencies covered by the Act to begin posting data at the conclusion of
the first quarter of fiscal year 2004.
Form and Manner of Data
EEOC believes that some uniformity in how data is posted is
necessary in order to make each agency's data easily accessible to the
public. Interim rule 29 CFR 1614.703 therefore specifies that the data
must be posted in two formats: Portable Document Format (PDF); and an
accessible text format of the agency's choosing that complies with the
agency's obligation under section 508 of the Rehabilitation Act.
The interim rule requires each agency to prominently post on its
primary Web homepage a link to the data required to be posted under the
Act and designate the link and that data as ``Equal Employment
Opportunity Data Posted Pursuant to the No Fear Act.'' This is to make
finding and then viewing the data as easy as possible, with a minimum
of navigation clicks or jumps. An agency also must prominently post the
date its data was last updated.
EEOC believes that posted data will be more meaningful and useful
if, in addition to showing agency-wide statistics, certain large
agencies show how each subelement of the particular agency is
performing. Given that many agency subelements employ more employees
than are employed by entire agencies, EEOC believes it simply makes
good sense to see how each subelement is complying with the EEO laws,
especially when compared to the parent agency. Therefore, an agency
containing subelements as defined in section 1614.702(l) must post both
agency-wide aggregate data and subelement-specific data.
Data To Be Posted
Number of complaints. No Fear requires an agency to post the number
of EEO complaints filed with it under 29 CFR part 1614 in a given
fiscal year. If the same individual files four separate complaints,
they should be counted as four complaints. Even if complaints later are
consolidated for processing, they should still be counted as separate
complaints for purposes of this posting requirement.
Number of filers. Under section 1614.704(b), an agency must post
the number of individuals who file complaints with the agency in a
given fiscal year. Where the same individual files multiple complaints,
the agency counts the complainant only once under this section. For
example, if the same person files five complaints in a given fiscal
year, the agency will count five complaints as having been filed, but
only one filer.
If a class complaint is filed, the agency shall treat the class
agent as the filer. If the class complaint has multiple class agents,
they should all be considered filers. An agency should not post the
total number of class members involved in a class complaint.
Number of repeat filers. The No Fear Act requires an agency to post
the number of individuals who file multiple complaints during a fiscal
year. By ``multiple'' section 1614.704(c) means more than one. If a
single individual files two or more complaints during the fiscal year,
then that person is counted once as a repeat filer regardless of how
many complaints he or she files. If a person files an individual
complaint and is a class agent for a separate class complaint during
the reporting period, then that person is counted as a repeat, or
multiple, filer. This same person also is to be counted as a filer
under section 1614.704(b).
The basis of a complaint. Each agency must post the number of
complaints in which each of the various bases of discrimination is
alleged. The basis of the complaint is the discriminatory factor
asserted by the complainant that is protected by the statute under
which the complaint is filed. The bases protected by the EEO statutes
are race, color, religion, national origin, sex, disability, age, and
retaliation (for participating in the EEO complaint process or for
opposing practices made illegal under the EEO laws). A complaint
brought under the Equal Pay Act is considered to be a complaint on the
basis of sex. To the extent any other ``basis'' is alleged (e.g.,
marital status, parental status, union membership), the interim rule
contemplates that such basis will be listed in a ``non-EEO basis''
category.
We are including a ``non-EEO basis'' category as a catch-all in
order to cause agencies to post the number of complaints in which a
basis not covered by the EEO statutes is alleged. In this way, persons
viewing an agency's complaint statistics will not have to wonder
whether they contain discrepant numbers. For example, if an agency
posts that ten complaints were filed and then posts that only eight
complaints raised race as a basis (because the remaining two complaints
raised non-EEO bases), a viewer might well wonder whether the agency
neglected to note the bases alleged in those two complaints. Having the
agency post that two complaints raised a ``non-EEO basis'' fills in
that gap.
Where multiple EEO bases are alleged, the agency must post data
showing that a complaint was filed on each basis. Thus, if a
complainant alleges discrimination based on race and national origin,
the agency is to count that complaint as one filed based on race and
one filed based on national origin. Consequently, if one complaint is
filed based on sex and age, a second complaint is filed based on race,
sex and age, and a third complaint is based on national origin,
disability and sex, the required (and correct) posting would be that
for the basis of race one complaint was filed, for the basis of
disability one complaint was filed, for the basis of national origin
one complaint was filed, for the basis of age two complaints were
filed, and for the basis of sex three complaints were filed.
The issue raised in a complaint. Each agency must post the number
of complaints in which each of the various issues of alleged
discrimination is alleged. The issue of a complaint is the matter about
which the individual is complaining. The issue sets forth the alleged
discriminatory incident for which the individual seeks redress.
As with bases of discrimination, the agency must list each issue
that is raised and the number of complaints that raised that issue.
Thus, if a complainant alleges in a single complaint that he was denied
training and not promoted, the agency should count this as one
complaint on the issue of training and one complaint on the issue of
promotion/non-selection.
Unlike bases of discrimination, the number and types of potential
issues are not finite. Therefore, defining an issue will not always be
as exact as defining a basis. This is because the same issue can be
described in different ways. When a complainant alleges she was
discriminated against because she is female, there is no dispute that
the alleged basis is sex. On the other hand, if an individual files a
complaint challenging her nonselection for a promotion, the issue could
be described in a number of ways, including ``promotion,''
``nonpromotion,'' ``non-selection,'' ``failure to be promoted,'' or
``not selected for a promotion.''
Consequently, in order to avoid the confusion that can result from
varying
[[Page 3486]]
descriptions of the same issue, and to make the posted data as uniform
as possible, EEOC is providing a list of issues most commonly raised in
complaints. This list of issues contains the same issues currently used
by agencies in reporting statistics to EEOC on EEOC Standard Form 462.
Agencies must choose an issue from this list when posting the type of
issue that is alleged. A list of the issues appears on page 2 of Form
462 and the specific issues are included in the definition of ``issue''
in the regulation. An ``other'' category will capture all issues not
listed on Form 462. Unlike Form 462, however, where an agency must
describe the ``other'' issue, here the agency merely will note the
number of complaints that raise issues not listed on Form 462.
Amendments or changes made to a complaint. With respect to the
posting of bases and issues pursuant to sections 1614.704(d) and (e),
an agency must list all bases and issues initially raised regardless of
whether a complainant subsequently adds or withdraws, or an agency
declines to accept, a basis or issue. This is to ensure that a complete
picture is presented as to the matters that are being raised initially
in filed complaints. Bases or issues that are added by amendment are
not to be posted.
Processing time. The No Fear Act requires an agency to post the
average length of time it takes an agency to complete ``each step of
the process'' for every complaint that is pending during any time of
the then fiscal year. The interim rule tracks this requirement. If a
complaint is pending at any time during the fiscal year for which data
is being posted, the agency must post processing time data for each
step even if the complaint was filed in a prior fiscal year and even if
any discrete step commenced or ended in a prior fiscal year. Example 1.
A complaint is filed on July 1, 2003 (fiscal year 2003), the
investigation concludes on March 1, 2004, the complainant requests an
immediate final decision on March 2, and the agency issues a final
decision on June 1, 2004. In posting its fiscal year 2004 data, the
agency will have to factor into its average processing times the fact
that this complaint was pending at the investigative stage for 8 months
and at the final action stage for 3 months. Example 2. A complaint is
filed on March 1, 2003, the investigation is completed on September 1,
2003, the complainant requests an immediate final decision on September
29, 2003, and the agency issues a final decision on November 30, 2003
(fiscal year 2004). In posting its fiscal year 2004 data, the agency
will have to factor into its average processing times the fact that
this complaint was pending at the investigative stage for 6 months and
at the final action stage for 2 months. Example 3. A complaint is filed
on September 1, 2003, the investigation is completed on February 1,
2004, the complainant requests a hearing on February 15, 2004, the AJ
issues a decision on September 1, 2004, and the agency issues its final
order on October 5, 2004 (fiscal year 2005). In posting its fiscal year
2004 data, the agency will have to factor into its average processing
times the fact that this complaint was pending at the investigative
stage for 5 months. Since final action did not occur in FY 2004,
average processing time for final action by the agency would not be
factored into FY 2004 data. The processing time for the final action
step of this complaint along with the time for completion of the
investigation will be factored into the agency's fiscal year 2005
average processing time data.
The Act requires an agency to post average processing times under
three categories: All complaints pending during the fiscal year;
complaints in which a hearing is not requested; and complaints in which
a hearing is requested. Using examples 1 and 2, above, the agency must
use the time it took to investigate the complaint and issue its final
decision in calculating average processing times when it reports those
times for both ``all complaints'' and ``complaints for which a hearing
was not requested.'' Using Example 3, above, the agency must use the
time it took to investigate the complaint in calculating average
processing times when it reports that time for both ``all complaints''
and ``complaints for which a hearing was requested.'' The operative
word here is ``requested.'' Regardless of whether a hearing is actually
held, the agency is to report processing times based on whether a
request for a hearing was made.
The Act does not define the phrase ``each step of the process.''
Consequently, EEOC has defined those steps pursuant to its rulemaking
authority under the Act. The interim rule divides the EEO complaint
process into four steps: Investigation; hearing; final action by an
agency after an investigation or hearing; and appeal. Under section
1614.704, an agency must report, for the then fiscal year, the average
time it takes to complete two of these steps: Investigations; and final
actions by an agency after an investigation or hearing. The precise
time when each of these steps begins and ends is part of the definition
of the respective steps. It is contemplated, therefore, that the steps
as defined by their beginning and ending times will control for posting
purposes under the Act regardless of when an agency may deem a step to
begin or end for its own internal purposes. This means, of course, that
an agency will have to track its processing times according to the
definitions set forth in the interim rule if it does not do so already.
When reporting processing times for final actions by an agency, the
definition of final action by an agency contained in section
1614.702(g) ensures than an agency will not be charged for the time in
which a complaint is with an administrative judge.
Another aspect of the EEO complaint process which is not actually a
``step of the process'' is when an agency dismisses a complaint
pursuant to 29 CFR 1614.107(a). These dismissals constitute an
important aspect in the processing time of complaints. The interim rule
therefore requires an agency to post for the fiscal year the number of
complaints that are dismissed pursuant to 29 CFR 1614.107(a) and the
average length of time such complaints were pending at the time of
dismissal.
Dismissals pursuant to Sec. 1614.107(a) are dismissals of the
``entire complaint.'' These are the only dismissals section 1614.704(g)
seeks to track. Where an agency follows the procedure outlined in 29
CFR 1614.107(b) (declining to investigate some claims in a complaint
which the agency believes should be dismissed), there is not a
dismissal of the entire complaint and so these complaints would not be
reported under section 1614.704(g). Similarly, dismissals by an
administrative judge pursuant to 29 CFR 1614.109(b) are not dismissals
by the agency and therefore are not the types of dismissals
contemplated by section 1614.704(g).
Final actions by an agency involving discrimination: The No Fear
Act requires an agency to post for the then fiscal year the total
number of final actions by an agency involving a finding of
discrimination. EEOC interprets this to mean that an agency must post
the total number of complaints in which the agency's final action
addresses a finding of discrimination whether that finding is rendered
by the agency or an administrative judge. Even if an agency issues a
final order informing a complainant that it will not implement an
administrative judge's finding of discrimination, the agency's final
action ``involves'' a finding of discrimination and therefore must be
listed as a final action by an agency involving discrimination.
[[Page 3487]]
Of the total number of final actions by an agency involving
discrimination, the Act requires an agency to post the number and
percentage that pertain to findings of discrimination ``rendered
without a hearing'' and the number and percentage having to do with
findings of discrimination after a hearing has been held.
It is clear that final action is taken without a hearing when a
complainant requests an agency decision without a hearing, or fails to
request a hearing within the requisite time period. It is also clear
that final action is taken without a hearing when the complainant
requests a hearing and subsequently withdraws that request, or events
occur which cause the administrative judge to cancel the hearing
without issuing a decision. Thus, if a hearing is requested and then
cancelled, or the complainant withdraws the hearing request and the
agency ultimately issues a finding of discrimination, the finding would
be noted in the subcategory pertaining to a decision without a hearing.
In those cases in which a hearing is held and an agency final order
informs the complainant that the agency will or will not implement the
finding of discrimination issued by an administrative judge, this will
be deemed to constitute an agency final action involving a finding of
discrimination ``after a hearing'' for posting purposes.
There also are instances when a hearing is requested but the
administrative judge renders a decision without holding a hearing.
Under the federal sector complaint processing procedures, an
administrative judge can issue a decision without a hearing pursuant to
29 CFR 1614.109(f)(3)(iv) (sometimes referred to as an adverse
inference finding) or section 1614.109(g) (sometimes referred to as a
summary judgement decision). The interim rule envisions that any agency
final order that informs the complainant that the agency will or will
not implement a finding of discrimination issued by an administrative
judge, regardless of what proceeded the administrative judge's
decision, will be deemed to constitute an agency final action involving
a finding of discrimination ``after a hearing'' for posting purposes.
Thus, the form of the administrative judge's decision is irrelevant, as
is whether a hearing actually took place. An agency's implementation or
appeal of an administrative judge's finding of discrimination,
including a bench decision or a finding issued without a hearing
pursuant to 29 CFR 1614.109(f)(3)(iv) or (g), is to be reported under
the subcategory pertaining to a finding of discrimination after a
hearing. EEOC adopts this position because we believe it most closely
adheres to the intent of Congress, which is to track how often an
agency chooses to implement or not implement a finding of
discrimination rendered by an administrative judge.
Findings of discrimination sorted by basis and whether there was a
hearing. In posting the total number of final actions by an agency in
which a finding of discrimination is made during a fiscal year, the No
Fear Act requires an agency to post the number and percentage of such
findings according to the basis on which discrimination was found. The
Act requires an agency to further subdivide such data and post the
total number and percentage of such findings of discrimination based on
the type of discrimination that is found according to whether a hearing
was held. The interim rule tracks these requirements. For purposes of
this posting requirement, the identification of bases and whether a
hearing was held will be governed by the same factors noted in the
discussions above concerning postings by basis and postings by findings
of discrimination.
With respect to posting findings of discrimination according to
basis, what is determinative is the basis on which the finding of
discrimination is made. This usually will be the same as the basis
initially alleged in the complaint, but not always. If a person alleges
multiple bases of discrimination, such as race, sex and retaliation,
and the agency or administrative judge finds that the complainant was
discriminated against solely because she had engaged in prior EEO
activity, the agency will post information reflecting that it rendered
a finding of retaliation.
Findings of discrimination sorted by issue and whether there was a
hearing. In posting the total number of final actions by an agency in
which a finding of discrimination is made during a fiscal year, the No
Fear Act requires an agency to post the number and percentage of such
findings according to the issue on which the complainant prevailed. The
Act requires an agency to further subdivide such data and post the
total number and percentage of such findings of discrimination sorted
by issue according to whether a hearing was held. The interim rule
tracks this requirement. For purposes of this posting requirement, the
identification of issues and whether a hearing was held will be
governed by the same factors noted in the discussions above concerning
postings by issue and postings by findings of discrimination. The data
posted under this subsection of the interim rule will be characterized
based on what action or actions the agency found to be discriminatory,
regardless of what was initially challenged in the complaint.
Number of pending complaints that were filed in prior fiscal years.
The No Fear Act specifies that an agency must look at all complaints
pending in a current fiscal year and post the number that were filed
before the start of that fiscal year. The interim rule tracks this
requirement. EEOC interprets the requirement as applying to all pending
complaints filed in a prior fiscal year, regardless of how long ago a
complaint was filed. Thus, if a complaint filed 15 years earlier is
still pending, the agency must count this complaint when posting the
amount of pending complaints that were filed in prior fiscal years.
``Filed'' is to be given its generally accepted meaning. Thus, a
complaint is deemed filed on the date it is postmarked. If there is no
postmark or the complaint is hand-delivered, the complaint is deemed
filed on the date it is received by the agency. See 29 CFR 1614.604(b).
An agency is to use these filing dates in ascertaining which complaints
were filed before the start of the current fiscal year.
The Act further requires an agency to post the number of
individuals who filed the complaints that were filed before the start
of the current fiscal year. This number is to be based on the original
number of persons who filed the complaints.
The Act requires that, of the complaints that were filed prior to
the current fiscal year and are still pending, the agency shall specify
how many of the complaints are at each specific processing step. The
interim rule requires an agency to account for all prior fiscal year
complaints including those pending at the hearings and appeals
processing steps. The interim rule contemplates that the step at which
a prior fiscal year complaint is pending shall be based on its status
as of the end of the applicable reporting quarter.
Finally, the Act requires, as a general rule, that an agency look
at all complaints pending in the current fiscal year, determine how
many of the complaints were not timely investigated, and post that
total number of complaints. As set forth in section 1614.702(c), the
investigative step is deemed to commence on the date the complaint is
filed. This is consistent with 29 CFR 1614.106(e)(2), specifically
cited in the Act, which requires that the investigation be completed
within 180 days of the date the complaint is filed, with certain
exceptions (e.g., the parties
[[Page 3488]]
can agree in writing to extend the time period).
In this regard, section 301(b)(10)(C) of the No Fear Act couches
this posting requirement in terms of how often ``the agency violated
the requirements of section 1614.106(e)(2).'' This is significant in
that, under 29 CFR 1614.106(e)(2) and 1614.108(e), the 180 day time
period in which a complaint normally must be investigated can be
extended by mutual written agreement between the parties for a period
not exceeding 90 days and is automatically extended when a complaint is
amended or a file needs to be sanitized because it contains classified
information pursuant to Executive Order No. 12356, or successor orders.
The Commission interprets this section of the Act as requiring an
agency to post data only when an agency completes an investigation
beyond 180 days plus any authorized extensions, including those
contained in section 1614.108(e).
Thus, for example, where the parties mutually agree on the 179th
day to extend the investigation another 90 days and the investigation
is completed on the 260th day, the agency will not have to list this
complaint as not having been timely investigated. If, on the other
hand, the investigation is not completed until the 275th day, the
agency will have to report that the complaint was not investigated in a
timely manner since the investigative period exceeded 180 days plus the
90 day extension (i.e., the investigation was completed beyond the
allowable 270 days).
Types of Complaints Covered. As noted in the ``Introduction''
above, the posting requirement applies to all complaints filed with an
agency under Part 1614. This includes individual complaints, class
complaints and mixed-case complaints but not mixed-case appeals or
grievances. While all complaints are covered under No Fear, not all the
posting categories apply to all complaints (e.g., mixed-case
complaints). Posting data for class complaints and mixed-case
complaints will, therefore, present some difficulty regarding some of
the categories because of the different procedures that apply to them.
For class complaints, agencies do not investigate the class complaint
and class agents do not request hearings. For mixed-case complaints,
the time limits for investigation (120 days) and decision (45 days) are
different and complainants do not request or have hearings before an
EEOC administrative judge. Thus, some adjustments will have to be made
when posting data. Agencies shall post data on all individual, class
and mixed-case complaints except as follows: (1) agencies should not
include data on class complaints for sections 1614.704(f)(2), (f)(3),
and the part of (f)(1) requiring data on complaints pending at the
investigation step; and (2) agencies should not include data on mixed-
case complaints for sections 1614.704(f)(2), (f)(3), (h)(2), (h)(3),
(i)(2), (i)(3), (j)(2), (j)(3), and (k)(3).
Timing of Posting Data
When posting data for a current fiscal year, the No Fear Act
requires an agency to post on a year-to-date basis, updated quarterly.
When posting data for prior years, the Act requires an agency to post
on a fiscal year basis. These requirements are reflected in section
1614.703(e). Using fiscal year 2004 as an example, the agency's first
posting of data will occur within thirty (30) calendar days of December
31, 2003 (the end of the first quarter). That posting must then be
updated to reflect all pertinent data through March 31, 2004 (the end
of the second quarter), no later than 30 calendar days after March 31.
Another update will occur at the end of the third quarter. Within 30
calendar days of the end of fiscal year 2004, the agency shall post its
final fiscal year data. This pattern then continues for each subsequent
fiscal year. In updating current fiscal year data on a quarterly basis,
the agency should not post separate data for each relevant quarter.
Rather, an agency must post only one set of cumulative data that has
been updated quarterly.
In addition to posting current fiscal year data, updated quarterly,
the No Fear Act requires an agency to maintain on its Web site year-end
data for each of the five immediately preceding fiscal years. Taking
fiscal year 2004 as an example, this means that in February 2004, the
agency's Web site will contain year-end data for fiscal years 1999,
2000, 2001, 2002, and 2003, as well as first quarter interim year-to-
date data for fiscal year 2004. In subsequent years, when first quarter
data for a new fiscal year is posted, the fiscal year comparison data
that is more than six (6) years old will be dropped, i.e., when first
quarter 2005 data is posted, the year-end totals for 2004 will become
the most recent comparison year-end data and the 1999 year-end data
will be omitted. If an agency does not have data for one or more of the
preceding five fiscal years, the Act requires that the agency post
whatever data it has available for any of those five years. The year-
end data that is to be posted for past fiscal years is to be in the
same form and manner as current fiscal year data and contain the same
categories of information with corresponding content. With respect to
those agencies containing subelements as defined in section
1614.702(l), the parent agency shall post both agency-wide aggregate
past fiscal year data as well as subelement-specific past fiscal year
data.
Additional Information To Be Posted by EEOC
Pursuant to the Act, EEOC is required to post government-wide
statistical data on hearings and appeals in addition to the data EEOC
must post as an employing agency on the complaints filed against it.
This additional information is of the same type, consists of the same
categories, and will have the same time requirements, as that posted by
an employing agency concerning complaints that are filed with that
agency, except that the additional data EEOC posts will reflect
information about requests for hearings and appeals filed with EEOC.
Sections 1614.706(a) and (b) on hearings and appeals track the Act's
posting requirements on complaints as closely as possible. The posting
of this data is intended to give a viewer an instant government-wide
view of the number of hearings requested and appeals filed, what issues
and bases are raised, the average processing times for each step, and
how often discrimination is found at each step.
EEOC will not take the data that is posted by all agencies under
the interim rule, aggregate the data, and then post that data on EEOC's
Web site under a heading such as ``Government-Wide EEO Complaint Data
for Fiscal Year 200X.'' EEOC's only posting obligations under the No
Fear Act are two: like any other executive branch agency, EEOC must
post EEO complaint data pertaining to internal EEO complaints filed
with EEOC; EEOC also must post government-wide aggregate summary
statistical data, but only under two categories: hearing requests; and
appeals filed.
Regulatory Procedures
Executive Order 12866
Pursuant to Executive Order 12866, EEOC has coordinated this final
interim rule with the Office of Management and Budget. Under section
3(f)(1) of Executive Order 12866, EEOC has determined that the
regulation will not have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State or local tribal
governments or communities.
[[Page 3489]]
The posting requirements contained in Title III of The No Fear Act
apply only to Federal executive agencies, the United States Postal
Service, and the Postal Rate Commission. All of these agencies,
including EEOC, are required by the No Fear Act to post statistical
data on their public Web sites pertaining to EEO complaints filed with
them. In addition, EEOC has to post government-wide data pertaining to
requests for EEO hearings and appeals of EEO complaints.
Much of the information that will be used as source material to
post the statistical data required by Title III already is collected
and maintained by the agencies in connection with their pre-existing
reporting obligations. All affected agencies currently maintain public
Web sites. Consequently, the Congressional Budget Office estimated that
the total cost for all agencies to comply with No Fear's posting
requirements will not exceed $5 million annually. House Rept. 107-101
part 1, June 14, 2001, p 11-12. Also, according to the CBO, it will
cost EEOC $500,000 annually to post the additional government-wide data
required by Sec. 302. Id. Thus, the total cost of Title III of No Fear
should be less than $5.5 million annually.
The benefits of posting EEO data will flow not just to the federal
agencies but to the public. An agency will be able to compare its EEO
program statistics against prior quarters and years to determine if
there are trends that need to be addressed or whether progress is being
made. An agency can also compare its statistics against those of other
agencies. Both types of analyses should be useful to the agency in
monitoring its own compliance with 29 CFR part 1614 and ensuring equal
opportunity in the agency's employment programs. Public posting will
ensure that members of the public will have access to this information
and will be able to make independent assessments of agencies'
compliance and progress. Agency employees will be able to assess the
degree to which their agency provides equal employment opportunity.
Likewise, potential job applicants will be able to judge the relative
desirability of each agency's working environment. The public display
of this information should provide agencies with added incentives to
improve their EEO programs and to prevent discrimination proactively so
that they can demonstrate that they are true equal employment
opportunity employers. Increased monitoring and improved compliance
through public posting of EEO statistics should lead to a decline in
incidents of employment discrimination, which is the primary goal of
the No Fear Act.
Paperwork Reduction Act
This proposal 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).
Administrative Procedure Act
Immediate implementation of this rule as an interim final rule with
provision for post-promulgation public comment is based upon the
exceptions found at 5 U.S.C. 553(b)(A), (b)(B) and (d). Agency posting
requirements under Title III of the No Fear Act begin in FY 2004. It is
essential that all agencies understand their responsibilities regarding
these requirements so that they can begin capturing this data
immediately. EEOC has determined under 5 U.S.C. 553(b)(A) that this
regulation, which covers the time, form and manner of agency postings
under Title III affects agency organization, procedure, or practice and
has no effect on the substantive rights of non-agency parties. In
addition, the absence of rules or a later promulgation of rules might
result in confusion concerning the posting requirements, to the
detriment of the public. EEOC has determined under 5 U.S.C. 553(b)(B)
that it would be contrary to the public interest to delay promulgation
of these rules. For the same reasons, EEOC has determined under 5
U.S.C. 553(d)(3) that there is good cause for the interim final rule to
become effective immediately upon publication with provision for post-
promulgation public comment. EEOC is seeking public comment on the
regulation and will consider all comments before promulgating a final
rule.
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 government entities. For this reason, a
regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This final interim 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 pertains to agency management, personnel and
organization and 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 1614
Administrative practice and procedure, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the Commission,
Dated: January 16, 2004.
Cari M. Dominguez.
Chair.
0
Accordingly, for the reasons set forth in the preamble, EEOC amends 29
CFR part 1614 as follows:
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
0
1. The authority citation for Part 1614 continues to read as follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16; 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, 1069 Comp., p.133;
E.O. 12106, 3 CFR, 1978 Comp., p.263; Reorg. Plan No. 1 of 1978, 3
CFR, 1978 Comp., p.321.
0
2. Subpart G is added to read as follows:
Subpart G--Procedures Under the Notification and Federal Employee
Antidiscrimination and Retaliation Act (No Fear Act) of 2002
Sec.
1614.701 Purpose and scope.
1614.702 Definitions.
1614.703 Manner and format of data.
1614.704 Information to be posted--all Federal agencies.
1614.705 Comparative data--all Federal agencies.
1614.706 Additional data to be posted by EEOC.
Authority: Sec. 303, Pub. L. 107-174, 116 Stat. 574.
[[Page 3490]]
Subpart G--Procedures Under the Notification and Federal Employee
Antidiscrimination and Retaliation Act (No Fear Act) of 2002
Sec. 1614.701 Purpose and scope.
This subpart implements Title III of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 (No Fear Act),
Public Law 107-174. It sets forth the basic responsibilities of federal
agencies and the Commission to post certain information on their public
Web sites.
Sec. 1614.702 Definitions.
The following definitions apply for purposes of this subpart:
(a) The term Federal agency means an Executive agency (as defined
in 5 U.S.C. 105), the United States Postal Service, and the Postal Rate
Commission;
(b) The term Commission means the Equal Employment Opportunity
Commission and any subdivision thereof authorized to act on its behalf;
(c) The term investigation refers to the step of the federal sector
EEO process described in 29 CFR 1614.108 and, for purposes of this
subpart, it commences when the complaint is filed and ceases when the
complainant is given notice under Sec. 1614.108(f) of the right to
request a hearing or to receive an immediate final decision without a
hearing;
(d) The term hearing refers to the step of the Federal sector EEO
process described in 29 CFR 1614.109 and, for purposes of this subpart,
it commences when the EEOC Administrative Judge (AJ) receives the
complaint file from the agency and ceases when the AJ returns the case
to the agency to take final action;
(e) For purposes of Sec. 1614.704(h), (i) and (j), the phrase
without a hearing refers to a final action by an agency that is
rendered:
(1) When an agency does not receive a reply to a notice issued
under Sec. 1614.108(f);
(2) After a complainant requests an immediate final decision,
(3) After a complainant withdraws a request for a hearing; and
(4) After an administrative judge cancels a hearing and remands the
matter to the agency;
(f) For purposes of Sec. 1614.704(h), (i) and (j), the term after a
hearing refers to a final action by an agency that is rendered
following a decision by an administrative judge under Sec.
1614.109(f)(3)(iv), (g) or (i).
(g) The phrase final action by an agency refers to the step of the
federal sector EEO process described in 29 CFR 1614.110 and, for
purposes of this subpart, it commences when the agency receives a
decision by an Administrative Judge (AJ), receives a request from the
complainant for an immediate final decision without a hearing or fails
to receive a response to a notice issued under Sec. 1614.108(f) and
ceases when the agency issues a final order or final decision on the
complaint.
(h) The phrase final action by an agency involving a finding of
discrimination means:
(1) A final order issued by an agency pursuant to Sec. 1614.110(a)
following a finding of discrimination by an administrative judge; and
(2) A final decision issued by an agency pursuant to Sec.
1614.110(b) in which the agency finds discrimination;
(i) The term appeal refers to the step of the federal sector EEO
process described in 29 CFR 1614.401 and, for purposes of this subpart,
it commences when the appeal is received by the Commission and ceases
when the appellate decision is issued;
(j) The term basis of alleged discrimination refers to the
individual's protected status (i.e., race, color, religion, sex,
national origin, age, disability, or retaliation). Only those bases
protected by Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e et seq.; the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. 621 et seq.; the Equal Pay Act of 1963, 29 U.S.C.
206(d); and the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791
et. seq., are covered by the federal EEO process.
(k) The term issue of alleged discrimination means one of the
following challenged agency actions affecting a term or condition of
employment as listed on EEOC Standard Form 462 (Annual Federal Equal
Employment Opportunity Statistical Report of Discrimination
Complaints): Appointment/hire; assignment of duties; awards; conversion
to full time; disciplinary action/demotion; disciplinary action/
reprimand; disciplinary action/suspension; disciplinary action/removal;
duty hours; evaluation/appraisal; examination/test; harassment/non-
sexual; harassment/sexual; medical examination; pay/overtime;
promotion/non-selection; reassignment/denied; reassignment/directed;
reasonable accommodation; reinstatement; retirement; termination;
terms/conditions of employment; time and attendance; training; and,
other.
(l) The term subelement refers to any organizational sub-unit
directly below the agency or department level which has 1,000 or more
employees.
Sec. 1614.703 Manner and format of data.
(a) Agencies shall post their statistical data in the following two
formats: Portable Document Format (PDF) and an accessible text format
that complies with section 508 of the Rehabilitation Act.
(b) Agencies shall prominently post the date they last updated the
statistical information on the Web site location containing the
statistical data.
(c) In addition to providing aggregate agency-wide data, each
agency shall include separate data for each subelement listed in Sec.
1614.702(l). Such data shall be identified as pertaining to the
particular subelement.
(d) Data posted under this subpart will be titled ``Equal
Employment Opportunity Data Posted Pursuant to the No Fear Act'' and a
hyperlink to the data will be posted prominently on the homepage of
each agency's public Web site. In the case of agencies with
subelements, the data shall be made available by hyperlinks from the
Web sites of both the subelement (if one exists) as well as the parent
agency.
(e) Agencies must post cumulative data pursuant to Sec. 1614.704
for the current fiscal year. Agencies may not post separate quarterly
statistics for the current fiscal year.
Sec. 1614.704 Information to be posted--all Federal agencies.
Commencing on January 31, 2004 and thereafter no later than 30 days
after the end of each fiscal quarter beginning on or after January 1,
2004, each federal agency must post the following current fiscal year
statistics on its public Internet Web site regarding EEO complaints
filed under 29 CFR part 1614:
(a) The number of complaints filed in such fiscal year;
(b) The number of individuals filing those complaints (including as
the agent of a class);
(c) The number of individuals who filed two or more of those
complaints;
(d) The number of those complaints raising each of the various
bases of alleged discrimination and the number of complaints in which a
non-EEO basis is alleged;
(e) The number of those complaints raising each of the various
issues of alleged discrimination;
(f) The average length of time it has taken an agency to complete
respectively investigation and final action by an agency for:
(1) All complaints pending for any length of time during such
fiscal year,
(2) All complaints pending for any length of time during such
fiscal year in which a hearing was not requested and
[[Page 3491]]
(3) All complaints pending for any length of time during such
fiscal year in which a hearing was requested;
(g) The number of complaints dismissed by an agency pursuant to 29
CFR 1614.107(a), and the average length of time such complaints had
been pending prior to dismissal;
(h)(1) The total number of final actions by an agency rendered in
such fiscal year involving a finding of discrimination and, of that
number,
(2) The number and percentage that were rendered without a hearing
and
(3) The number and percentage that were rendered after a hearing;
(i) Of the total number of final actions by an agency rendered in
such fiscal year involving a finding of discrimination,
(1) The number and percentage of those based on each respective
basis,
(2) The number and percentage for each respective basis that were
rendered without a hearing and
(3) The number and percentage for each respective basis that were
rendered after a hearing;
(j) Of the total number of final actions by an agency rendered in
such fiscal year involving a finding of discrimination,
(1) The number and percentage for each respective issue,
(2) The number and percentage for each respective issue that were
rendered without a hearing and
(3) The number and percentage for each respective issue that were
rendered after a hearing;
(k) Of the total number of complaints pending for any length of
time in such fiscal year,
(1) The number that were first filed before the start of the then
current fiscal year,
(2) The number of individuals who filed those complaints in earlier
years, and
(3) The number of those complaints that are respectively pending at
the investigation, hearing, final action by an agency, and appeal step
of the process; and
(l) Of the total number of complaints pending for any length of
time in such fiscal year, the total number of complaints in which the
agency has not completed its investigation within the time required by
29 CFR 1614.106(e)(2) plus any extensions authorized by that section or
Sec. 1614.108(e).
Sec. 1614.705 Comparative data--all Federal agencies.
Commencing on January 31, 2004 and no later than January 31 of each
year thereafter, each federal agency shall post year-end data
corresponding to that required to be posted by Sec. 1614.704 for each
of the five immediately preceding fiscal years (or, if not available
for all five fiscal years, for however many of those five fiscal years
for which data are available). For each category of data, the agency
shall post a separate figure for each year.
Sec. 1614.706 Additional data to be posted by EEOC.
(a) Commencing on January 31, 2004 and thereafter no later than 30
days after the end of each fiscal quarter beginning on or after January
1, 2004, the Commission must post the following current fiscal year
statistics on its public Internet Web site regarding hearings requested
under this part 1614:
(1) The number of hearings requested in such fiscal year;
(2) The number of individuals filing those requests;
(3) The number of individuals who filed two or more of those
requests;
(4) The number of those hearing requests involving each of the
various bases of alleged discrimination;
(5) The number of those hearing requests involving each of the
various issues of alleged discrimination;
(6) The average length of time it has taken EEOC to complete the
hearing step for all cases pending at the hearing step for any length
of time during such fiscal year;
(7)(i) The total number of administrative judge (AJ) decisions
rendered in such fiscal year involving a finding of discrimination and,
of that number,
(ii) The number and percentage that were rendered without a
hearing, and
(iii) The number and percentage that were rendered after a hearing;
(8) Of the total number of AJ decisions rendered in such fiscal
year involving a finding of discrimination,
(i) The number and percentage of those based on each respective
basis,
(ii) The number and percentage for each respective basis that were
rendered without a hearing, and
(iii) The number and percentage for each respective basis that were
rendered after a hearing;
(9) Of the total number of AJ decisions rendered in such fiscal
year involving a finding of discrimination,
(i) The number and percentage for each respective issue,
(ii) The number and percentage for each respective issue that were
rendered without a hearing, and
(iii) The number and percentage for each respective issue that were
rendered after a hearing;
(10) Of the total number of hearing requests pending for any length
of time in such fiscal year,
(i) The number that were first filed before the start of the then
current fiscal year, and
(ii) The number of individuals who filed those hearing requests in
earlier years; and
(11) Of the total number of hearing requests pending for any length
of time in such fiscal year, the total number in which the Commission
failed to complete the hearing step within the time required by Sec.
1614.109(i).
(b) Commencing on January 31, 2004 and thereafter no later than 30
days after the end of each fiscal quarter beginning on or after January
1, 2004, the Commission must post the following current fiscal year
statistics on its public Internet Web site regarding EEO appeals filed
under this part 1614:
(1) The number of appeals filed in such fiscal year;
(2) The number of individuals filing those appeals (including as
the agent of a class);
(3) The number of individuals who filed two or more of those
appeals;
(4) The number of those appeals raising each of the various bases
of alleged discrimination;
(5) The number of those appeals raising each of the various issues
of alleged discrimination;
(6) The average length of time it has taken EEOC to issue appellate
decisions for:
(i) All appeals pending for any length of time during such fiscal
year,
(ii) All appeals pending for any length of time during such fiscal
year in which a hearing was not requested, and
(iii) All appeals pending for any length of time during such fiscal
year in which a hearing was requested;
(7)(i) The total number of appellate decisions rendered in such
fiscal year involving a finding of discrimination and, of that number,
(ii) The number and percentage that involved a final action by an
agency rendered without a hearing, and
(iii) The number and percentage that involved a final action by an
agency after a hearing;
(8) Of the total number of appellate decisions rendered in such
fiscal year involving a finding of discrimination,
(i) The number and percentage of those based on each respective
basis of discrimination,
(ii) The number and percentage for each respective basis that
involved a final action by an agency rendered without a hearing, and
(iii) The number and percentage for each respective basis that
involved a final action by an agency rendered after a hearing;
[[Page 3492]]
(9) Of the total number of appellate decisions rendered in such
fiscal year involving a finding of discrimination,
(i) The number and percentage for each respective issue of
discrimination,
(ii) The number and percentage for each respective issue that
involved a final action by an agency rendered without a hearing, and
(iii) The number and percentage for each respective issue that
involved a final action by an agency rendered after a hearing; and
(10) Of the total number of appeals pending for any length of time
in such fiscal year,
(i) The number that were first filed before the start of the then
current fiscal year, and
(ii) The number of individuals who filed those appeals in earlier
years.
[FR Doc. 04-1505 Filed 1-23-04; 8:45 am]
BILLING CODE 6570-01-P