EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
The Rehabilitation Act of 1973: Disability/ Complaint Processing: Section 508
January 23, 2004
Re: Proposed Rule on Access of Persons With Disabilities to FDIC Programs, Activities, Facilities, and Electronic and Information Technology
Dear Mr. :
We would like to contribute these brief comments in response to the Notice of Proposed Rulemaking (NPRM) on the plan to revise FDIC's regulations to implement section 504 and section 508 of the Rehabilitation Act of 1973. 68 Fed. Reg. 65680 (2003) (to be codified at 12 CFR pt. 352) (proposed Nov. 24, 2003). Both sections 504 and 508 of the Rehabilitation Act cover employment discrimination on the basis of disability. Section 504 prohibits discrimination in programs and activities conducted by federal agencies, while section 508 establishes accessibility requirements for electronic and information technology (EIT) developed, maintained, procured, or used by the Federal government. In order to avoid potential processing problems in resolving section 508 complaints from FDIC employees and applicants, we request that FDIC make certain revisions to its proposed rule as suggested below.
The U.S. Equal Employment Opportunity Commission (EEOC) enforces the federal laws that prohibit employment discrimination on the basis of an individual's disability, specifically, section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (federal employment), and Title I of the Americans with Disabilities Act (ADA) (private sector employment), 42 U.S.C. § 12101 et seq. The EEOC has published procedures for processing complaints of discrimination in federal employment for Section 501, among other laws, at 29 CFR Part 1614. The EEOC has responsibility under Executive Order 12067 to coordinate the Federal government's enforcement of laws, Executive orders, regulations, and policies which require equal employment opportunity for individuals with disabilities. 43 Fed. Reg. 28967 (July 5, 1978).
This letter focuses on FDIC's proposal to use EEOC's complaint procedures at 29 CFR Part 1614 for all employment-related discrimination complaints. The FDIC's proposed regulations do not specifically state that employment-related section 508 complaints (concerning accessibility requirements for electronic and information technology (EIT)) will be processed under Part 1614. However, the FDIC's proposed regulations also do not distinguish section 508 employment-related complaints from employment-related complaints arising under section 504. We interpret the proposed rules, therefore, to mean that FDIC intends to process all employment discrimination complaints, including section 508 complaints raised by employees or applicants, under EEOC's regulations at 29 CFR Part 1614.
The EEOC believes that its Part 1614 procedures are not suitable for processing section 508 complaints. Under Part 1614, EEOC decisions are legal precedent for federal agencies. However, EEOC's jurisdiction does not include section 508 accessibility standards, which are issued by the Architectural and Transportation Barrier Compliance Board, see 36 CFR Part 1194. Accordingly, EEOC could not render decisions on section 508 complaints from FDIC employees or applicants. We suggest revising the proposed rule so that it does not encourage processing of these section 508 complaints under EEOC's Part 1614 process.
We are cognizant of the fact that section 508 requires federal agencies to process section 508 complaints according to the same complaint procedures used to process section 504 complaints, and that this is the requirement that probably resulted in the initial choice to use Part 1614. See 29 U.S.C. § 794d(f)(2). However, the EEOC, in determining how best to process section 508 complaints filed against EEOC by its own employees and applicants, concluded, for the above stated reasons, that such section 508 complaints against EEOC should be processed pursuant to the procedures used to process section 504 complaints against EEOC by members of the public, set forth in the EEOC's rules at 29 CFR § 1615.170(d) - (m). See 68 Fed. Reg. 46630, EEOC Notice of Delegation of Authority - Processing Complaints Under Section 508 of the Rehabilitation Act (August 6, 2003) (attached). We suggest that FDIC similarly should process all section 508 complaints filed against FDIC, including those raised by FDIC employees and applicants, under the procedures used to process section 504 complaints against FDIC by members of the public.
Specifically, we suggest revising 12 CFR § 352.10(a) and (b) to read as follows:
§ 352.10(a): Paragraph (b) of this section applies to employment complaints which arise under section 504. The remaining paragraphs in this section concern complaints alleging disability discrimination in FDIC programs or activities (other than employment), and complaints alleging violations of section 508 filed by members of the public, FDIC employees, and applicants for employment with FDIC.
§ 352.10.(b): Employment complaints arising under section 504. The FDIC shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR parts 1614 and 1630, pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
Finally, there appear to be two typographical errors in proposed 12 CFR § 352.3. The first occurs within the definition of "qualified individual with a disability" with respect to employment. This portion of the proposed section reads: "Qualified individual with a disability means ... (3) With respect to employment, an individual with a disability as defined in 29 CFR 1630.2(g), which is made applicable to this part by § 352.6." In fact, the definition for "qualified individual with a disability" with respect to employment is found at 29 CFR § 1630.2(m). The definition provided at 29 CFR § 1630.2(g) is for "individual with a disability," the definition of which is already provided in your procedures.
The second apparent typographical error occurs in the last sentence of § 352.3. This portion of the proposed regulation reads: "As used in this part, sections 504 and 508 shall be applied in all programs, activities, and EIT conducted by the FDIC as set forth in §§ 352.2 and 352.3(b) of this part." There is not, however, a § 352.3(b) in proposed part 352.
Thank you for the opportunity to provide these comments in response to the proposed rule. If you have any questions or would like to discuss these comments, please feel free to contact
_________, __________, at __________.
Peggy R. Mastroianni
Associate Legal Counsel
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