U.S. Equal Employment Opportunity Commission
Robert E. Feldman, Executive Secretary
Attention: Comments/Legal ESS
Federal Deposit Insurance Corporation
550 17th Street, N.W.
Washington D.C. 20429
RIN # 3064-AC58
Dear Mr. Feldman:
Re: Proposed Rule on Access of Persons With Disabilities to FDIC
Programs, Activities, Facilities, and Electronic and Information
Technology
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 Carol Miaskoff, Assistant
Legal Counsel, at 202-663-4645.
Sincerely,
Peggy R. Mastroianni
Associate Legal Counsel
Attachment
68 FR 46630-02
(Cite as: 68 FR 46630)
NOTICES
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Notice of Delegation of Authority--Processing Complaints Under Section 508
of the Rehabilitation Act
Wednesday, August 6, 2003
*46630 SUMMARY: The amendments to section 508 of the Rehabilitation
Act of 1973, 29 U.S.C. 794d, which took effect in 2001 provide that each
federal agency must ensure that the electronic and information
technology it develops, procures, maintains, or uses is accessible to
individuals with disabilities who are federal employees or applicants,
or members of the public seeking information or services from the
agency. Section 508 authorizes individuals to file administrative
complaints and civil actions against an agency, limited to the alleged
failure to procure accessible technology. The statute requires federal
agencies to process section 508 complaints according to the same
complaint procedures used to process section 504 complaints. See 29 U.S.C. 794d(f)(2).
Notice is hereby given that by order dated July 22, 2003, the Chair
of the Equal Employment Opportunity Commission (EEOC) delegated to the
Director of the EEOC's Office of Equal Opportunity (OEO), without
authority to redelegate, authority for processing all section 508
complaints against the EEOC. Pursuant to this delegation, the Director
of the OEO shall process all section 508 complaints by applicants,
employees, or members of the public, against the EEOC, pursuant to the
compliance procedures set forth in 29 CFR 1615.170(d)- (m). These are
the same procedures which the EEOC uses to process section 504
complaints against the EEOC by members of the public. The Order provided
that the EEOC will not utilize the Federal sector equal employment
opportunity administrative complaint procedures, 29 CFR part 1614, to
process any section 508 complaints against EEOC, even if filed by an
EEOC applicant or employee. The Order explained that as
distinguished from the EEOC's authority to process section 501 claims
under part 1614, the EEOC does not have authority to interpret and
enforce section 508 *46631 under part 1614. The Order further provided
that if a section 501 complaint filed against the EEOC in the part 1614
process includes a separate section 508 claim, OEO will process the
section 501 claim through the part 1614 process, and will separately
process the section 508 claim pursuant to the procedures set forth in 29
CFR 1615.170(d)-(m). By this Order, the EEOC did not alter any of its
existing procedures for processing complaints under section 501 or
section 504 of the Rehabilitation Act.
EFFECTIVE DATE. The delegation of authority became effective on July 22, 2003.
FOR FURTHER INFORMATION CONTACT: Carol R. Miaskoff, Assistant Legal
Counsel, at 202-663-4689.
Dated: July 22, 2003.
Cari M. Dominguez, Chair.
[FR Doc. 03-19986 Filed 8-5-03; 8:45 am] BILLING CODE 6570-01-P 68 FR
46630-02, 2003 WL 21796296 (F.R.)
END OF DOCUMENT
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