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Final Rule on Procedures--
Age Discrimination in Employment Act
December 17, 2003

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[Federal Register: December 17, 2003 (Volume 68, Number 242)]
[Rules and Regulations]               
[Page 70150-70152]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17de03-13]                         

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1626

RIN 3046-AA54

 
Procedures--Age Discrimination in Employment Act

AGENCY: Equal Employment Opportunity Commission (EEOC).

ACTION: Final rule.

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SUMMARY: This rule revises the regulations on the processing of age 
discrimination charges to provide that the Commission will issue a 
notice, when it has dismissed or otherwise terminated the processing of 
an age discrimination charge, that the right to file a lawsuit on the 
charge under the Age Discrimination in Employment Act (ADEA) will 
expire in 90 days. These amendments also delete references to the 
previously applicable two- or three-year limitations period for filing 
a civil action. Finally, EEOC is deleting its list of ADEA referral 
states because the list is obsolete and unnecessary. These changes 
conform the Commission's regulations to the procedures adopted by the 
Commission to implement section 115 of the Civil Rights Act of 1991.

EFFECTIVE DATE: January 16, 2004.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal 
Counsel at (202) 663-4669 (voice) or (202) 663-7026 (TTY). This final 
rule is also available in the following 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: The Commission published a Notice of 
Proposed Rulemaking (NPRM) in the Federal Register on August 12, 2002 
(67 FR 52431), proposing revisions to part 1626 of its regulations. 
These changes were proposed to (1) conform the Commission's regulations 
to the procedures it adopted for the processing of charges under the 
Age Discrimination in Employment Act (ADEA) following passage of 
section 115 of the Civil Rights Act of 1991 (CRA) and (2) delete an 
obsolete and unnecessary list of State Fair Employment Practices 
Agencies to which EEOC will send copies of ADEA charges.
    The current Sec.  1626.7(a) provides that charges will not be 
rejected as untimely provided that they are not barred by the statute 
of limitations contained in section 6 of the Portal to Portal Act. This 
provision recognized the Commission's authority to file suit within the 
Portal to Portal Act's limitation period even if the aggrieved party 
did not have a private right of action because the charge was filed 
more than 180 days (or 300 days in a referral jurisdictions) after the 
discriminatory event took place. Following passage of the CRA, the 
statute of limitations contained in the Portal to Portal Act is no 
longer applicable to ADEA lawsuits filed by either the aggrieved party 
or the Commission. We therefore proposed to delete the current Sec.  
1626.7(a). The Commission will dismiss ADEA charges filed more than 180 
days (or 300 days in a referral jurisdiction) after the discriminatory 
act, absent waiver, estoppel or equitable tolling.
    The current Sec.  1626.9(b) and (c) contain a list of states to 
which the Commission refers charges under section 14(b) of the ADEA. 
These lists were created when there were relatively few such agencies. 
Since almost all states now have laws prohibiting age discrimination, 
we proposed to delete the lists because they are obsolete and 
unnecessary. The regulation continues to provide that the Commission 
will refer age charges to appropriate state agencies.
    Section 7(d) of the ADEA requires that, upon receipt of a charge, 
the Commission shall promptly attempt to eliminate any alleged unlawful 
practice by informal methods of conciliation, conference and 
persuasion. Under current Sec.  1626.12, EEOC issues a notice if this 
attempt at conciliation fails. To eliminate any possible confusion 
between this failure of conciliation notice and the new Notice of 
Dismissal or Termination (NDT), we proposed to add a sentence to Sec.  
1626.12 stating that notice under this section is not a Notice of 
Dismissal or Termination under Sec.  1626.20.
    The second sentence and last two sentences of the current Sec.  
1626.15(b) concern the tolling of the ADEA's statute of limitations 
during EEOC conciliation. Because this tolling provision no longer 
applies, we proposed to delete these sentences. We also proposed an 
editorial change to the third sentence, eliminating a reference to the 
current second sentence that was being deleted.
    The Commission proposed to add three new sections. Section 1626.17 
was modeled on 29 CFR 1601.28 and provides for issuance of a Notice of 
Dismissal or Termination to an aggrieved person when EEOC dismisses or 
otherwise terminates its processing of an ADEA charge. Notification 
will be made by issuing a Notice of Dismissal or Termination to each 
aggrieved person. In the case of a charge concerning more than one 
aggrieved person, Notices of Dismissal or Termination will only be 
issued when the charge is dismissed or EEOC's proceedings are 
terminated as to all aggrieved persons.
    Section 1626.18 concerns the institution of private civil actions. 
Paragraph (a) states that a civil action may be filed by an aggrieved 
person in either federal or state court under section 7 of the ADEA. 
Paragraph (b) makes clear that an aggrieved person need not wait for a 
Notice of Dismissal or Termination to be issued in order to file a 
civil action, but can file suit on a pending charge any time after 60 
days have elapsed from the filing of the charge. Paragraph (c) provides 
that the right to file a private suit under the ADEA expires 90 days 
after receipt of a Notice of Dismissal or Termination. Paragraph (d) 
provides that when the Commission becomes aware that an aggrieved 
person has filed a private lawsuit under the ADEA against the 
respondent named in the charge, the Commission will terminate further 
processing of the charge or the portion of the charge affecting that 
person unless it is determined that further proceedings will effectuate 
the purposes of the ADEA.
    Section 1626.19 clarifies that, unlike Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e, and Title I of the Americans with 
Disabilities Act, 42 U.S.C. 12101 et seq., the ADEA does not require 
the filing of a charge before the Commission has authority to 
investigate and litigate a possible violation of the ADEA. In addition, 
the termination of proceedings on an age discrimination charge and the 
issuance of a Notice of Dismissal or Termination does not prevent the 
Commission from investigating or litigating a matter that may have been 
the subject of or related to a charge on which a Notice of Dismissal or 
Termination was issued.

[[Page 70151]]

    Two comments were received in response to the NPRM. Both expressed 
support for the proposed revisions. They noted that conforming the 
regulations to existing practice would provide helpful clarification 
and avoid unnecessary confusion.
    In addition to this over-all support for the proposed changes, one 
of the two commenters encouraged the Commission to exercise thoughtful 
restraint in enforcing the ADEA where a timely charge has not been 
filed or after a Notice of Dismissal or Termination has been issued. 
This comment did not request any change in the regulation. The 
Commission does, however, want to reassure the commenter that it 
intends to exercise its enforcement discretion responsibly. The other 
commenter suggested further clarification of Sec. Sec.  1626.17(a), 
1626.17(a)(3), and 1626.18.
    In Sec.  1626.17(a), we proposed that Notices of Dismissal or 
Termination be issued in the case of a charge involving more than one 
aggrieved person only when EEOC terminates its processing as to all 
aggrieved persons. The commenter suggests that it would better serve 
judicial economy to issue Notices of Dismissal or Termination to the 
aggrieved persons seriatim during the process as we make determinations 
rather than to all at the end. We disagree and think the suggested 
alternative would be inefficient and not serve judicial economy. 
Seriatim issuance would likely lead to consecutive court filings by 
individuals as they receive the Notices and either premature 
termination of EEOC's processing of the remainder of the charge or 
early EEOC intervention in the lawsuit(s). The Commission believes that 
its proposal better serves efficiency and judicial economy by allowing 
orderly completion of the administrative process, appropriate pre-suit 
conciliation efforts by EEOC and contemporaneous filing of individual 
lawsuits.
    In Sec.  1626.17(a)(3), we proposed that the issuance of a Notice 
of Dismissal or Termination would not preclude the Commission from 
offering the recipient of the notice such assistance as it deems 
necessary or appropriate or from continuing to investigate. The 
commenter argues that this is vague, could mislead the aggrieved person 
into thinking that EEOC will intervene in his or her lawsuit and 
overstates EEOC's authority. The proposed language on rendering 
assistance was borrowed from our Title VII and ADA procedural 
regulations. See 29 CFR 1601.28(a)(4)(``The issuance of a notice of 
right to sue does not preclude the Commission from offering such 
assistance to a person issued such notice as the Commission deems 
necessary or appropriate.''). That language has appeared in 29 CFR 
1601.28 for over 25 years. We are not aware of any evidence that this 
language has been found to be confusing or that individuals have been 
misled by it. Furthermore, the statement that the Commission could 
continue to investigate or litigate after a Notice is issued is simply 
a recognition that the Commission's jurisdiction under the ADEA is not 
dependent on the filing of a charge.
    In Sec.  1626.18(b), we state that an aggrieved person who files a 
charge may file a lawsuit without waiting for a Notice of Dismissal or 
Termination as long as 60 days have passed since the filing of the 
charge. The commenter argues that Sec.  1626.18 does not present a 
clear picture of the aggrieved person's right to file a private lawsuit 
because, among other things, it does not mention that the right to file 
an individual lawsuit terminates if the Commission files suit on the 
charge. We agree that the individual's right to file a lawsuit is 
terminated when the Commission files a lawsuit and have added some 
language to Sec.  1626.18(c) to make that clear. The commenter also 
argues that subsection (b) either makes an unwarranted assumption not 
based on clear statutory language or places undue emphasis on the 60-
day provision of the ADEA. We believe subsection (b) is based on clear 
statutory authority allowing a private ADEA lawsuit to be filed anytime 
after 60 days from filing of the charge up to 90 days after issuance of 
the Notice of Dismissal or Termination or the filing of a Commission 
lawsuit. We do not believe that Sec.  1626.18 gives improper emphasis 
to the right to file a lawsuit before the Notice is issued.
    In Sec.  1626.18(d), we stated that the Commission ``may'' dismiss 
a charge if a private lawsuit has been filed. The commenter states that 
the word ``may'' in subsection (d) should be ``shall'' because ``may'' 
implies that the Commission has unfettered discretion. Proposed 
subsection (d) provided that the EEOC ``may'' dismiss a charge if a 
private lawsuit is filed on the charge unless an EEOC official 
determines that further processing would effectuate the purposes of the 
Act. The effect and intent of the proposed provision, as indicated in 
the preamble to the NPRM, was that EEOC would terminate further 
proceedings unless an appropriate official made an affirmative 
determination that further processing would effectuate the purposes of 
the Act. While we do not think that the use of ``shall'' instead of 
``may'' changes the result, we agree with the commenter that ``shall'' 
makes more sense in light of the ``unless'' clause and have made that 
change.
    Finally, we made three minor editorial changes. We changed 
``Associate General Counsel'' to ``General Counsel'' in Sec. Sec.  
1626.17(b) and 1626.18(d). We modified Sec.  1626.17(c)(2) slightly to 
mirror the similar, but better stated, language in Sec.  1626.17(a)(1). 
We also added a cross reference to Sec.  1626.12 in Sec.  1626.18(b).

Regulatory Procedures

Executive Order 12866

    Pursuant to Executive Order 12866, EEOC has coordinated this final 
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. 
Therefore, a detailed cost-benefit assessment of the regulation is not 
required.

Paperwork Reduction Act

    This final rule contains no new information collection requirements 
subject to review by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that this final rule 
will not have a significant economic impact on a substantial number of 
small entities, because it does not affect any small entities. The 
regulation affects what the Commission does and what aggrieved parties 
can do. For this reason, a regulatory flexibility analysis is not 
required.

Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

[[Page 70152]]

List of Subjects in 29 CFR Part 1626

    Administrative practice and procedure, aged, equal employment 
opportunity.

    Dated: December 10, 2003.

    For the Commission.
Cari M. Dominguez,
Chair.


0
For the reasons set forth in the preamble, EEOC amends 29 CFR part 1626 
as follows:

PART 1626--PROCEDURES--AGE DISCRIMINATION IN EMPLOYMENT ACT

0
1. The authority citation for part 1626 continues to read as follows:

    Authority: Sec. 9, 81 Stat. 605, 29 U.S.C. 628; sec. 2, Reorg. 
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.


Sec.  1626.7  [Amended]

0
2. Section 1626.7 is amended by removing paragraph (a) and 
redesignating paragraphs (b) and (c) as paragraphs (a) and (b).


Sec.  1626.9  [Amended]

0
3. Section 1626.9 is amended by removing the paragraph designation 
``(a)'' and by removing paragraphs (b) and (c).

0
4. Section 1626.12 is amended by adding a sentence at the end of the 
section to read as follows:


Sec.  1626.12  Conciliation efforts pursuant to section 7(d) of the 
Act.

    * * * Notification under this section is not a Notice of Dismissal 
or Termination under Sec.  1626.17.


Sec.  1626.15  [Amended]

0
5. Paragraph (b) of Sec.  1626.15 is amended by:
    (a) removing the second sentence;
    (b) removing the words ``Such notice will'' and adding in their 
place, the words ``Notice of commencement of conciliation will''; and
    (c) removing the last two sentences.


Sec. Sec.  1626.17, 1626.18, 1626.19  [Redesignated as Sec. Sec.  
1626.20, 1626.21 and 1626.22]

0
6. Sections 1626.17, 1626.18 and 1626.19 are redesignated as Sec. Sec.  
1626.20, 1626.21 and 1626.22.

0
7. A new section 1626.17 is added to read as follows:


Sec.  1626.17  Notice of Dismissal or Termination.

    (a) Issuance of Notice of Dismissal or Termination. (1) Where a 
charge filed with the Commission under the ADEA is dismissed or the 
Commission's proceedings are otherwise terminated, the Commission will 
issue a Notice of Dismissal or Termination on the charge as described 
in paragraph (c) of this section to the person(s) claiming to be 
aggrieved. In the case of a charge concerning more than one aggrieved 
person, the Commission will only issue a Notice of Dismissal or 
Termination when the charge is dismissed or proceedings are otherwise 
terminated as to all aggrieved persons.
    (2) Where the charge has been filed under the ADEA and Title VII or 
the Americans with Disabilities Act (ADA), the Commission will issue a 
Notice of Dismissal or Termination under the ADEA at the same time it 
issues the Notice of Right to Sue under Title VII or the ADA.
    (3) The issuance of a Notice of Dismissal or Termination does not 
preclude the Commission from offering such assistance to a person 
receiving the notice as the Commission deems necessary or appropriate. 
The issuance does not preclude or interfere with the Commission's 
continuing right to investigate and litigate the same matter or any 
ADEA matter under its enforcement authority.
    (b) Delegation of Authority to Issue Notices of Dismissal or 
Termination. The Commission hereby delegates authority to issue Notices 
of Dismissal or Termination, in accordance with this section, to: 
District Directors; Area Directors; Local Directors; the Director of 
the Office of Field Programs; the General Counsel; the Director of 
Field Management Programs, Office of Field Programs; or their 
designees.
    (c) Contents of the Notice of Dismissal or Termination. The Notice 
of Dismissal or Termination shall include:
    (1) A copy of the charge;
    (2) Notification that the charge has been dismissed or the 
Commission's proceedings have otherwise been terminated; and
    (3) Notification that the aggrieved person's right to file a civil 
action against the respondent on the subject charge under the ADEA will 
expire 90 days after receipt of such notice.

0
8. A new section 1626.18 is added to read as follows:


Sec.  1626.18  Filing of private lawsuit.

    (a) An aggrieved person may file a civil action against the 
respondent named in the charge in either Federal or State court under 
section 7 of the ADEA.
    (b) An aggrieved person whose claims are the subject of a timely 
pending charge may file a civil action at any time after 60 days have 
elapsed from the filing of the charge with the Commission (or as 
provided in Sec.  1626.12) without waiting for a Notice of Dismissal or 
Termination to be issued.
    (c) The right of an aggrieved person to file suit expires 90 days 
after receipt of the Notice of Dismissal or Termination or upon 
commencement of an action by the Commission to enforce the right of 
such person.
    (d) If the Commission becomes aware that the aggrieved person whose 
claim is the subject of a pending ADEA charge has filed an ADEA lawsuit 
against the respondent named in the charge, it shall terminate further 
processing of the charge or portion of the charge affecting that person 
unless the District Director; Area Director; Local Director; Director 
of the Office of Field Programs; the General Counsel; the Director of 
Field Management Programs; or their designees determine at that time or 
at a later time that it would effectuate the purpose of the ADEA to 
further process the charge.

0
9. A new section 1626.19 is added to read as follows:


Sec.  1626.19  Filing of Commission lawsuit.

    The right of the Commission to file a civil action under the ADEA 
is not dependent on the filing of a charge and is not affected by the 
issuance of a Notice of Dismissal or Termination to any aggrieved 
person.

[FR Doc. 03-31042 Filed 12-16-03; 8:45 am]

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