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[Federal Register: May 21, 2002 (Volume 67, Number 98)]
[Rules and
Regulations]
[Page 35732-35735]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my02-8]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA57
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission is publishing this
final rule to implement the amendment of section 501 of the
Rehabilitation Act, under the Rehabilitation Act Amendments of 1992.
This rule continues the movement towards full integration of
individuals with disabilities into the Federal workforce.
DATES: Effective June 20, 2002.
FOR FURTHER INFORMATION CONTACT: Carol R. Miaskoff, Assistant Legal
Counsel, or Mary Kay Mauren, Senior Attorney Advisor, (202)
663-4689 (voice), (202) 663-7026 (TDD). This document is
also available in the following formats: large print, braille, audio
tape, and electronic file on computer disk. Requests for this document
in an alternative format should be made to the Publications Information
Center at 1-800-669-3362.
SUPPLEMENTARY INFORMATION: Increasing the employment of individuals
with disabilities is one of the goals of section 501 of the
Rehabilitation Act of 1973, as amended (section 501),\1\ and Title I
and selected sections of Title V of the Americans with Disabilities Act
(ADA).\2\ Section 501 has prohibited the federal government, as an
employer, from discriminating on the basis of disability since the late
1970's. Title I of the ADA applied similar prohibitions to private
sector and state and local government employers in 1990. To promote
consistent and full enforcement of these two laws, Congress amended
section 501 in 1992 \3\ to adopt the employment nondiscrimination
standards of the Americans with Disabilities Act (ADA).\4\ In a Notice
of Proposed Rulemaking (NPRM), the U.S. Equal Employment Opportunity
Commission (EEOC or Commission) proposed to implement the 1992
Amendments by deleting the text of its old section 501 regulation, at
29 CFR 1614.203, and inserting new language to cross-reference the
Commission's existing ADA regulation at 29 CFR part 1630.\5\ The
Commission now responds to public comments submitted in response to
this NPRM and issues a final rule. Consistent with President George W.
Bush's New Freedom Initiative, this final rule continues "the
movement towards full integration of individuals with
disabilities" into the workforce and promotes full compliance
with section 501.\6\
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\1\ 29 U.S.C. 791(1994) (codified as amended). For a
summary of the early history of Section 501, see Prewitt v. United
States Postal Service, 662 F.2d 292, 301-304 (5th Cir. 1981).
\2\ 42 U.S.C. 12101-12117, 12201-12213 (1994)
(codified as amended). This goal was reaffirmed by the New Freedom
Initiative of President George W. Bush (Integrating Americans with
Disabilities into the Workforce, Part C: Compliance with the
Americans with Disabilities Act) (Feb. 1, 2001), at http://
www.whitehouse.gov/news/freedominitiative/freedominitiative.html
(visited 1/09/02) [hereinafter New Freedom Initiative].
\3\ Rehabilitation Act Amendments of 1992, Pub. L.
102-569, 106 Stat. 4344, 4424 (1992) (codified as amended at
29 U.S.C. 791(g) (1994)) (1992 Amendments).
\4\ The 1992 Amendments refer to Title I and selected
sections of Title V (sections 501 through 504 and 510).
\5\ Notice of Proposed Rulemaking to Update 29 CFR
1614.203, 65 FR 11019, March 1, 2000.
\6\ New Freedom Initiative, supra note 2.
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Overview of Public Comments
The Commission received fifteen comments in response to this
NPRM.
Of these comments, four were from federal agencies, two were from
federal unions, two from advocacy groups representing persons with
disabilities, one from a group representing employment attorneys, and
one from a state agency. The remaining submissions were from four
individuals and one group not specifically involved with federal
employees or disability rights. The Commission has carefully considered
all of the comments and, as a result, has made some changes to the
proposed regulation. The public comments and the text of the final
regulation are discussed below.
Nondiscrimination and Model Employer
An advocacy group for individuals with disabilities
expressed
concern that paragraph (a) of the proposed rule specifically referenced
hiring, placement, and advancement of qualified individuals with
disabilities, but did not enumerate all the types of employment
discrimination prohibited by the ADA. To clarify that the ADA's broad
nondiscrimination standards apply in the federal sector, this commenter
suggested cross-referencing the ADA's list of prohibited activities in
paragraph (a) and also deleting the specific references to hiring,
placement, and advancement.
The Commission concludes that these changes are not
necessary
because paragraph (b) of the rule already cross references the ADA
statute and regulation. Specifically, paragraph (b) states that the
ADA's nondiscrimination standards apply to section 501 complaints, and
cross references the ADA rule at 29 CFR part 1630. Title I of the ADA,
and the ADA rule at 29 CFR part 1630, both enumerate many types of
prohibited employment discrimination. In light of this cross-reference,
it is unnecessary to supplement paragraph (a) to establish that the
ADA's broad discrimination prohibitions apply under section 501.
Furthermore, for purposes of simplicity and clarity, the Commission
makes paragraph (b) the sole reference to nondiscrimination in the
final rule, deleting the general nondiscrimination language from
paragraph (a).
Using the ADA Rule To Implement the 1992 Amendments
One commenter questioned the Commission's proposal to
implement the
1992 Amendments by cross-referencing its ADA regulation at 29
[[Page 35733]]
CFR part 1630. The Commission remains convinced that this is the most
efficient way to implement the 1992 Amendments. The Commission's ADA
regulation at 29 CFR part 1630 implements the ADA employment provisions
that are cited in the 1992 Amendments.\7\
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\7\ The 1992 Amendments cite two sections in Title V of
the ADA that are not implemented by the Commission's ADA regulation
because they do not concern employment. These are sections 502
(state immunity) and 504 (regulations by the Architectural and
Transportation Barriers Compliance Board). Compare 29 U.S.C. 791(g)
(1994) with 29 CFR 1630.1(a) (2001).
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This commenter also correctly noted that the ADA's
statutory
definition of "employer" excludes the United States. On
this basis, the commenter contended that the ADA cannot cover federal
employers. This commenter misapprehended both the purpose and effect of
the 1992 Amendments and this regulation. Neither the 1992 Amendments
nor this regulation result in the ADA directly covering federal
employers. Rather, section 501 of the Rehabilitation Act continues to
cover federal employers. Due to the text of the 1992 Amendments,
however, section 501 now incorporates by reference the ADA's
nondiscrimination standards. The ADA's statutory definition of
"employer" does not impact the coverage of section 501.
Self-Identification and Affirmative Action
One advocacy group for individuals with disabilities asserted
that
old subparagraph 1614.203(e)(3), which permitted self-identification
for affirmative action purposes, should be retained so that federal
agencies can comply with their affirmative action responsibilities
under section 501.\8\ The Commission has considered the comment
but
concludes that old subparagraph 1614.203(e)(3) should be deleted in its
entirety. Contrary to the commenter's assertions, the ADA standard does
not prevent federal employers from satisfying their section 501
affirmative action obligations. The ADA permits affirmative action
disability-related inquiries of job applicants if certain requirements
are met. Specifically, employers may ask applicants to voluntarily
self-identify as individuals with disabilities if the employer is
undertaking affirmative action because of a federal, state, or local
law (including a veterans' preference law) that requires affirmative
action for individuals with disabilities.\9\ This would include the
government's affirmative action efforts under section 501. See 29
U.S.C. 791(b).
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\8\ Old subparagraph 1614.203(e)(3) states:
"To
enable and evaluate affirmative action to hire, place or advance
individuals with handicaps, the agency may invite applicants for
employment to indicate whether and to what extent they are
handicapped * * *"
\9\ The employer also must state clearly on any written
questionnaire, or orally if no written questionnaire is used, that
the information requested is used solely in connection with its
affirmative obligations or efforts, and that the information is
being requested on a voluntary basis and will be kept confidential
and used in accordance with the ADA (or section 501 of the
Rehabilitation Act). The information must also be on a form that is
kept separate from the application. See "ADA Enforcement
Guidance: Preemployment Disability-Related Questions and Medical
Examinations," at 12, 8 FEP Manual (BNA) 405:7191,
7196-97 (1995) [hereinafter "Guidance on Preemployment
Inquiries"]. (This and other ADA guidances are available
through the Internet at http://www.eeoc.gov.)
However, the
information on a separate form may be provided to hiring officials
or special appointing authorities to fulfill affirmative action
obligations.
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Definition of Disability
An advocacy group for individuals with disabilities contended
that
the U.S. Supreme Court's decision in Sutton v. United Airlines, Inc.,
527 U.S. 471 (1999), should not apply to section 501. The Commission
has considered this comment but does not adopt it. The ADA definition
of "disability" as construed by the Supreme Court must
apply to section 501.\10\
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\10\ The Commission notes that the Sutton analysis has
been applied in section 501 decisions. See Crocker v. Runyon, 207
F.3d 314, 319 n.1 (6th Cir. 2000). See also Flynn-Banigan v. Dep't
of Justice, EEOC Appeal No. 01973401 (August 3, 2000), Pulcini v.
Social Security Admin., EEOC Appeal No. 01990835 (July 27, 2000).
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Safety Issues and "Direct Threat'
A federal agency commented that the NPRM imposes a burden
on
federal employers because they may need to determine whether an
applicant or employee poses a "direct threat" to health or
safety. The Commission has considered this comment but has decided
that, pursuant to the 1992 Amendments, the same "direct
threat" standard must apply to federal employers as to private
employers. The NPRM correctly stated the ADA standard for "direct
threat," which requires employers to assess each individual's
ability to safely perform a particular job, based on the most current
medical assessment or other objective evidence.\11\
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\11\ The Supreme Court is deciding an ADA direct threat
case this term. See Chevron U.S.A., Inc. v. Echazabal, No.
00-1406 (U.S. argued February 27, 2002). The Commission
already has applied the ADA "direct threat" standard to
federal employers in its decisions. Kahout v. United States Postal
Service, EEOC Appeal No. 01954900 (June 19, 1997); Hobbs v. United
States Postal Service, EEOC Appeal No. 01944181 (January 26, 1996);
Robinson v. United States Postal Service, EEOC Request No. 05940034
(September 16, 1994). See 29 CFR 1630.2(r)(2001)(definition of
"direct threat"). For a discussion of when employers may
request medical information necessary for assessing "direct
threat," see "Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees under the Americans
with Disabilities Act," question 5, n.39, 8 FEP Manual
(BNA)
405:7701, 7708 (2000).
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Reasonable Accommodation
Section 501 requires federal employers to provide
reasonable
accommodation for qualified applicants and employees with disabilities,
barring undue hardship. Reasonable accommodation is central to
integrating individuals with disabilities into the workforce.\12\ The
NPRM preamble addressed the ADA's treatment of the interactive process,
reassignment, and undue hardship. The Commission reiterates that the
ADA standards that apply in private sector employment apply to federal
employment as well.\13\ The following discussion addresses some of the
public comments regarding reasonable accommodation.
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\12\ See New Freedom Initiative supra note 2.
\13\ In US Airways, Inc. v. Barnett, No. 00-1250,
slip op. at 9 (U.S. April 29, 2002), the Supreme Court adopted the
position articulated in several lower court cases that in any
reasonable accommodation case, a plaintiff/employee "need only
show that an 'accommodation' seems reasonable on its
face, i.e., ordinarily or in the run of cases," to defeat a
defendant/employer's motion for summary judgment with respect to
whether an accommodation is "reasonable." Once the
plaintiff/employee has made this showing, the defendant/employer has
the burden of demonstrating undue hardship on the facts of the
particular case. The decision in Barnett involved a conflict between
a seniority system and a reassignment as a reasonable accommodation.
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The Interactive Process
The Commission agrees with the public comment that, under
ADA
standards, a request for reasonable accommodation and the informal
interactive process are two distinct steps. First, the individual must
request reasonable accommodation, in all but the most limited
circumstances.\14\ Second, the employer engages in the interactive
process if the disability or the type of accommodation needed are not
obvious.\15\ Under ADA standards, employers must make a reasonable
effort to identify an effective accommodation that does not pose an
[[Page 35734]]
undue hardship. See 29 CFR part 1630 app. 1630.9.
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\14\ See "EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with
Disabilities Act," at questions 1-4, 39, 8 FEP
Manual
(BNA) at 405:7601, 7604-07, 7628-29 (1999) [hereinafter
"Reasonable Accommodation Guidance"]. The Reasonable
Accommodation Guidance contains a detailed description of the
reasonable accommodation interactive process.
\15\ See Reasonable Accommodation Guidance, supra note
14
at question 5, 8 FEP at 405:7606-07 (1999).
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Reassignment as a Reasonable Accommodation
Reassignment Is Separate From the Federal Merit Promotion System
Several agencies expressed concern that section 501
reassignment
actions could violate the federal merit promotion system. Under ADA
standards, however, reassignment of a qualified individual with a
disability is distinct from the competitive selection process. The ADA
defines reassignment to be part of the duty of reasonable
accommodation, which is a nondiscrimination obligation separate and
apart from the competitive selection process.\16\ Indeed, the Office of
Personnel Management (OPM) has characterized the reasonable
accommodation of reassignment as "a non-competitive
process." \17\
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\16\ See 42 U.S.C. 12111(9)(B) (1994).
\17\ See Employment Service, U.S. Office of Personnel
Management, People with Disabilities in the Federal Government: An
Employment Guide at 31 (1999).
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Probationary Employees and Reassignment
Agencies also expressed concern that the ADA approach
to
reassignment permits reassignment of probationary employees, contrary
to the categorical prohibition against such reassignment in the old
regulation at 29 CFR 1614.203(g). The Commission considered these
comments and again concludes that reassignment is available as a
reasonable accommodation for probationary employees.
Under the ADA, qualified individuals with disabilities are
entitled
to reasonable accommodation, barring undue hardship. Reassignment is a
form of reasonable accommodation. An individual with a disability is
qualified for reassignment if s/he has adequately performed the
essential functions of the original position, with or without
reasonable accommodation, before the need for reassignment arose.\18\
The longer the period of time in which a probationary employee has
adequately performed the essential job functions, with or without
reasonable accommodation, the more likely it is that reassignment is
appropriate if s/he becomes unable to continue performing the essential
functions of the position due to a disability. If, however, the
probationary employee has never adequately performed the essential
functions, with or without reasonable accommodation, then s/he is not
entitled to reassignment because s/he was never "qualified"
for the original position.\19\
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\18\ See Reasonable Accommodation Guidance, supra note
14
at question 25, 8 FEP at 405:7622-23 (1999).
\19\ See id.
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When a Position Becomes "Vacant" for Purposes of
Reassignment
Two federal agencies responded to the Commission's request
for
comment on when a position becomes vacant in the federal government.
One agency commented that a position must not only be funded and
unencumbered but must also be one that the agency intends to fill
rather than eliminate for budgetary or mission reasons. The other
agency commented that positions subject to hiring or other employment
freezes are not presently funded and so cannot be considered vacant
positions even though they may be authorized and not filled. It further
contended that if an employee leaves a position, the employer must
continue to have the opportunity to decide whether to fund the
position, abolish it, or modify it in accordance with changed work or
business requirements. Both agencies contended that a position cannot
be considered vacant if it has been unconditionally offered to another
individual. Finally, one of the agencies argued that a position cannot
be considered vacant if another employee has a vested priority to it by
seniority or some other superior right based on the employer's non-
discriminatory policies.
The Commission agrees that an agency must have an opportunity
to
decide whether to abolish, modify, or simply continue funding a
position after an employee departs. The Commission also agrees that the
duty to provide reassignment does not include reassignment to a
position for which there has already been an offer to another
individual.\20\ Finally, a position is not vacant if it is subject to a
hiring freeze. Any decision not to continue a position, whether for
funding or mission reasons, must not be discriminatorily based.
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\20\ Under the ADA, a job offer is real if the employer
has evaluated all relevant non-medical information which it
reasonably could have obtained and analyzed prior to giving the
offer. See Guidance on Preemployment Inquiries, supra note 9, at
18-19, 8 FEP 405:7200 (1995).
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Undue Hardship and the Extent of Duty To Search for a Vacancy
Several agencies commented on an employer's duty to search
for
vacancies throughout its organization and on issues involving
reassignments denied on the basis of undue hardship. These agencies
expressed concern that an obligation to search for vacant positions
beyond a commuting area and throughout an entire organization would
result in administrative difficulty and expense. One commenter asserted
that federal employers should not always be required to search for
vacancies in different subagencies or components of the larger agency,
because subagencies may be legally separate and may operate under
separate appropriations, appointing authorities, and personnel offices.
Another commenter urged the Commission to redefine the ADA "undue
hardship" standard for the federal sector, so that reassignment
decisions could be based on the budget of a particular facility. In the
federal sector, the agency commented, a facility may have a limited
budget with which to respond to growing public needs.
Under the 1992 Amendments, the Commission is bound by
ADA
standards, including the undue hardship standard.\21\ The Commission
concludes, however, that the ADA's "undue hardship"
analysis takes into account the operational, financial, and legal
relationships between components of large organizations, whether the
organizations are private or federal.\22\ An employer seeking to
demonstrate "undue hardship" under the ADA standard would
have to demonstrate why, in light of the resources, operations, and
constraints of its particular organization, a reasonable accommodation
would result in significant difficulty or expense. If a federal
employer seeks to demonstrate that a specific reasonable accommodation
poses an undue hardship because it would compromise the agency's
mission, the agency needs to factually assess the "impact of the
accommodation" on operations.\23\
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\21\ The Supreme Court, in US Airways, slip op. at 10,
emphasized that the employer still retains the burden of showing
undue hardship.
\22\ See 42 U.S.C. 12111(10) (1994). See also 29 CFR
1630.2(p) (2001).
\23\ Id.
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An advocacy group for individuals with disabilities objected
that
the proposed rule appeared to limit reassignment to situations in which
there was no other effective accommodation, or in which all other
accommodations would impose an undue hardship. The Commission has
consistently interpreted the ADA to mean that reassignment is only
required in these circumstances.\24\ Reassignment may be an option in
other circumstances if the employer and the employee agree to it.\25\
To avoid any ambiguity
[[Page 35735]]
concerning when reassignment is appropriate, we eliminated paragraph
(b)(2) which defined the employer's duty to provide reasonable
accommodation and reassignment. The remaining cross-reference to the
ADA standards in paragraph (b) provides the appropriate standard.
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\24\ See Reasonable Accommodation Guidance, supra note
14,
at p. 39, 8 FEP at 405:7622 (1999).
\25\ Id.
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Conflict With Collective Bargaining Agreement
Some federal unions and employers questioned whether
reassignment
should be required as a reasonable accommodation when it would create a
conflict with another employee's seniority rights under a collective
bargaining agreement (CBA). These commenters cited developing ADA case
law on this issue and urged the view that CBA seniority rights should
prevail. Following the submission of these public comments to the
Commission, the U.S. Supreme Court decided US Airways, Inc. v. Barnett,
No. 00-1250, (U.S. April 29, 2002). In Barnett, the Court
considered whether the ADA requires an employer to reassign an
individual with a disability as a reasonable accommodation when another
employee is entitled to hold the position under an established
seniority system.
The Court held that a conflict between a seniority system and
a
proposed accommodation should be analyzed to determine whether the
requested accommodation is reasonable. The Court ruled that
"ordinarily" a proposed accommodation will not be
reasonable if it conflicts with a seniority system. Barnett, slip op.
at 14. However, the Court also stated that, even if an employer shows
that the proposed accommodation will violate a seniority system, a
plaintiff/employee may nevertheless show that "special
circumstances" warrant a finding that the accommodation is
"reasonable" on the facts of the particular case. The
plaintiff/employee has the burden of proof to show that such
"special circumstances" exist. The Court remanded Barnett
for consideration under this standard.
In Barnett, a seniority system was linked to longstanding
employer
practice but was not part of a negotiated CBA. In its analysis, the
Court relied primarily on Rehabilitation Act and ADA case law involving
collectively bargained seniority systems to conclude that
accommodations conflicting with seniority systems are unreasonable
absent special circumstances. The Court's language broadly and
consistently referred to "seniority systems." Accordingly,
the Commission construes Barnett as applying to CBA seniority
provisions as well as to seniority systems based on employer practices.
Effective Date of the Final Rule
This regulation will be effective 30 days after publication
of the
final rule in the Federal Register, and will apply to conduct occurring
on or after that date.
Additional Amendment
The Commission did not receive public comment on its proposal
to
delete the provision in 1614.102(a)(9) which refers to
reassignment pursuant to 1614.203(g). That paragraph is
now deleted.
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 regulation contains no 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
In addition, 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 applies exclusively to employees
and agencies and departments of the federal government. For this
reason, a regulatory flexibility analysis is not required.
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Equal employment
opportunity, Government employees, Individuals with disabilities.
For the Commission.
Cari M. Dominguez,
Chair.
For the reasons set forth in the preamble, Chapter XIV of
Title 29
of the Code of Federal Regulations is amended as follows:
PART 1614-FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
1. The authority citation for part 1614 continues to read
as
follows:
Authority: 29 U.S.C. 206(d), 633(a), 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,
1969 Comp., p. 133; E.O. 12106, 3 CFR 1978 Comp., p. 263; Reorg.
Plan No. 1 of 1978, 3 CFR 1978 Comp., p. 321.
1614.102 [Amended]
2. Section 1614.102 is amended by removing paragraph (a)(9)
and
redesignating paragraphs (a)(10) through (a)(14) as paragraphs (a)(9)
through (a)(13), respectively.
3. Section 1614.203 is revised to read as follows:
1614.203 Rehabilitation Act.
(a) Model employer. The Federal Government shall be a
model
employer of individuals with disabilities. Agencies shall give full
consideration to the hiring, placement, and advancement of qualified
individuals with disabilities.
(b) ADA standards. The standards used to determine whether
section
501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has
been violated in a complaint alleging nonaffirmative action employment
discrimination under this part shall be the standards applied under
Titles I and V (sections 501 through 504 and 510) of the Americans with
Disabilities Act of 1990, as amended (42 U.S.C. 12101, 12111, 12201),
as such sections relate to employment. These standards are set forth in
the Commission's ADA regulations at 29 CFR part 1630.
[FR Doc. 02-12543 Filed 5-20-02; 8:45 am]
BILLING CODE 6570-01-P
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