[Federal Register: December 17, 2003 (Volume 68, Number
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1626
Procedures--Age Discrimination in Employment Act
AGENCY: Equal Employment Opportunity Commission (EEOC).
ACTION: Final rule.
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states because the list is obsolete and unnecessary.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
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
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
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
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
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
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
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
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.
Two comments were received in response to the NPRM. Both
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
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
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
In Sec. 1626.17(a)(3), we proposed that the issuance of
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
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
Finally, we made three minor editorial changes. We
``Associate General Counsel'' to ``General Counsel'' in Sec. Sec.
1626.17(b) and 1626.18(d). We modified Sec. 1626.17(c)(2) slightly
mirror the similar, but better stated, language in Sec.
We also added a cross reference to Sec. 1626.12 in Sec. 1626.18(b).
Executive Order 12866
Pursuant to Executive Order 12866, EEOC has coordinated this
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
Paperwork Reduction Act
This final rule contains no new information collection
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
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
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State,
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
List of Subjects in 29 CFR Part 1626
Administrative practice and procedure, aged, equal
Dated: December 10, 2003.
For the Commission.
Cari M. Dominguez,
For the reasons set forth in the preamble, EEOC amends 29 CFR part 1626
PART 1626--PROCEDURES--AGE DISCRIMINATION IN EMPLOYMENT ACT
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]
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]
3. Section 1626.9 is amended by removing the paragraph designation
``(a)'' and by removing paragraphs (b) and (c).
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
* * * Notification under this section is not a Notice of
or Termination under Sec. 1626.17.
Sec. 1626.15 [Amended]
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
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.
1626.20, 1626.21 and 1626.22]
6. Sections 1626.17, 1626.18 and 1626.19 are redesignated as Sec.
1626.20, 1626.21 and 1626.22.
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
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
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
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
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
(c) Contents of the Notice of Dismissal or Termination. The
of Dismissal or Termination shall include:
(1) A copy of the charge;
(2) Notification that the charge has been dismissed or
Commission's proceedings have otherwise been terminated; and
(3) Notification that the aggrieved person's right to file a
action against the respondent on the subject charge under the ADEA will
expire 90 days after receipt of such notice.
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
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
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
Termination to be issued.
(c) The right of an aggrieved person to file suit expires 90
after receipt of the Notice of Dismissal or Termination or upon
commencement of an action by the Commission to enforce the right of
(d) If the Commission becomes aware that the aggrieved person
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.
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
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
[FR Doc. 03-31042 Filed 12-16-03; 8:45 am]
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