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Management Directive 110

PREAMBLE

History of the Federal Sector
Equal Employment Opportunity Complaint Process

This section examines the history of the federal sector equal employment opportunity (EEO) complaint process. It provides an overview of the historical authority that transferred the responsibility for the federal sector EEO process from the Civil Service Commission (CSC) to the Equal Employment Opportunity Commission (EEOC or the Commission).

I. HISTORICAL AUTHORITY

The Government first recognized a policy of nondiscrimination in federal employment during the 1940s. Specifically, in July 1948, President Harry S. Truman issued the first Executive Order to declare a policy of nondiscrimination in federal employment.[1] Executive Order 9980 prohibited discrimination in federal employment on the bases of race, color, religion, or national origin.[2] Executive Order No. 9980, 13 Fed. Reg. 4,311 (July 28, 1948). The Order designated the head of each department to be personally responsible for insuring that employment decisions were based "solely on merit and fitness," and it required the head of each department to designate a Fair Employment Officer to appraise department personnel actions, receive discrimination complaints, and take necessary corrective or disciplinary action. Id. The Fair Employment Officer's decisions were appealable to the head of the department. Id. Executive Order 9980 also established a Fair Employment Board (FEB) in the CSC to advise department heads on issues related to fair employment, disseminate information relevant to fair employment programs, and coordinate department programs. Id. The FEB was authorized "to review decisions made by the head of any department which are appealed . . . or referred to the Board by the head of the department for advice, and to make recommendations to such head." Id.

President Dwight D. Eisenhower carried forward the Government's nondiscrimination policy when he issued Executive Order 10590, which superseded Executive Order 9980. Executive Order No. 10590, 20 Fed. Reg. 409 (Jan. 19, 1955). The Order required each department or agency head to establish procedures to provide a complainant with a fair hearing and the opportunity to appeal their case. Id. Executive Order 10590 re-designated the Fair Employment Officer as an Employment Policy Officer and abolished the FEB, replacing it with the President's Committee on Government Employment Policy. Id. The Committee's authority was limited, however, to reviewing cases and rendering advisory opinions to the agency or department heads before issuance of a final agency action. Id.

In March 1961, President John F. Kennedy issued Executive Order 10925, which amended Executive Order 10590. Executive Order 10925 replaced the President's Committee on Government Employment Policy with the President's Committee on Equal Employment Opportunity.[3] Executive Order No. 10925, 26 Fed. Reg. 1,977 (Mar. 8, 1961). The Order charged this new committee with studying federal employment practices and recommending additional steps to fully achieve the policy of nondiscrimination. Id. The Committee was empowered with the authority to impose sanctions for violations of the Executive Order. Id.

In September 1965, President Lyndon B. Johnson issued Executive Order 11246, which superseded Executive Order 10590 but retained the prohibition on discrimination in federal employment on the bases of race, color, creed, or national origin. Executive Order No. 11246, 30 Fed. Reg. 12,319 (Sept. 28, 1965). Notably, Executive Order 11246 returned appellate review of final agency actions to the CSC and authorized the CSC to issue regulations and orders necessary to carry out its responsibilities.[4] Id. The Order required each department and agency head to comply with the CSC's procedures, and to establish and maintain a positive program of equal employment opportunity. Id.

In August 1969, President Richard Nixon further amended Executive Order 11246 by issuing Executive Order 11478, which required department and agency heads to "establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment." Executive Order No. 11478, 34 Fed. Reg. 12,985 (Aug. 12, 1969). President Nixon tasked the CSC with reviewing and evaluating agency programs. Id. Executive Order 11478 also required agencies to "provide access to counseling for employees who feel aggrieved and . . . encourage the resolution of employee problems on an informal basis." Id.

By 1970, despite the issuance of numerous Executive Orders addressing nondiscrimination, employment discrimination remained a significant problem in the federal government. Legislative History of the Equal Employment Opportunity Act of 1972 (U.S. Government Printing Office, Washington, D.C., H.R. 1746, Pub. L. No.. 92-261, 1972 at p. 1728 [hereinafter: Legislative History (1972)]. Congress did not find the administrative procedures established by the CSC to be effective. Id. at 82. The CSC rarely reversed agency decisions and was criticized for failing to address systemic discrimination. Id. at 82-84. In addition, testimony presented to Congress suggested that federal employees had little faith in the complaint process and often feared retaliation for challenging discriminatory employment practices. Id. at 83. Furthermore, Congress "found that inadequate remedies existed to make aggrieved persons whole," including the unavailability of back pay as an administrative remedy and procedural obstacles potentially limiting the ability of federal employees to bring claims against the federal government, such as sovereign immunity. Id. As a result, Congress passed the Equal Employment Opportunity Act of 1972, which amended Title VII to extend its coverage to include federal employees while retaining the CSC's role in the administrative process.[5] Id. Additionally, Congress passed the Rehabilitation Act of 1973, which prohibited the federal government from discriminating against qualified individuals with disabilities and required federal agencies to establish affirmative action programs to provide greater employment opportunities for individuals with disabilities. Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (1973).

Despite the passage of the Equal Employment Opportunity Act and the Rehabilitation Act, there were still several problems with the federal complaint/appeals process. The CSC's procedural regulations were viewed as fundamentally biased against complainants, and the complaint process itself was difficult for individual complainants to navigate. U.S. Department of Labor, Civil Rights Center, To Eliminate Employment Discrimination (1975)). Furthermore, by the 1970s, seventeen federal agencies and departments were responsible for enforcing forty different nondiscrimination statutes and executive orders. EEOC History: 35th Anniversary: 1965 - 2000: The Law, http://www.eeoc.gov/eeoc/history/35th/thelaw/index.html. As a result, in 1978, President Jimmy Carter submitted two reorganization plans to Congress to eliminate duplication and conflict by placing the responsibility for coordinating all federal EEO programs exclusively with the Commission. Reorganization Plan No. 1 of 1978, 43 Fed. Reg. 19,807 (May 5, 1978); Reorganization Plan No. 2 of 1978, 43 Fed. Reg. 36,037 (Aug. 15, 1978).

President Carter issued Executive Order 12067 to implement Reorganization Plan No. 1 and transfer the functions of the Equal Employment Opportunity Coordinating Council (EEOCC) to the EEOC. Executive Order No. 12067, 43 Fed. Reg. 28,967 (Jan. 3, 1979). Executive Order 12067 delineated the Commission's responsibility for "develop[ing] uniform standards, guidelines, and policies" for promoting and furthering equal employment opportunity without regard to race, color, religion, sex, national origin, age, or handicap. Id. Executive Order 12067 required department and agency heads to comply with the Commission's final rules, regulations, policies, procedures, and orders. Id.

After President Carter submitted his Reorganization Plans to Congress in 1978, Congress passed the Civil Service Reform Act of 1978, which abolished the CSC and distributed its functions primarily among three agencies: the EEOC; a newly established Office of Personnel Management (OPM); and the Merit Systems Protection Board (MSPB), which replaced the CSC. Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat 1111 (1978). The Reorganization Plan gave the Commission responsibility over the hearings and appeals functions for certain cases involving employment discrimination. Id. In December 1978, President Carter issued Executive Order 12106, which transferred additional CSC functions to the Commission and amended Executive Order 11478 by adding disability and age as protected bases. Executive Order No. 12106, 44 Fed. Reg. 1,053 (Jan. 3, 1979). President Carter also issued Executive Orders 12107 implementing the Civil Service Reform Act of 1978 and Reorganization Plan No. 2. Executive Order No. 12107, 44 Fed. Reg. 1,055 (Jan. 3, 1979). In June 1979, President Carter signed Executive Order 12144, which transferred certain equal pay and age discrimination enforcement functions to the Commission. Executive Order No. 12144, 44 Fed. Reg. 37,193 (June 26, 1979).

II. The Late 1970s-1980

Prior to the Commission obtaining authority over the federal sector EEO process, the CSC had authority to issue regulations and orders with respect to the processing of federal sector EEO complaints. As a result of Executive Order 11246, the CSC issued its initial regulations pertaining to complaint processing at 5 C.F.R. Part 1613, effective April 3, 1966. 5 C.F.R. Part 713 et seq.. These regulations provided time frames for filing complaints, required agency investigations, a hearing by an agency panel or an agency appointed hearing officer, a final decision by the agency head or a designee, and a process allowing complainants to file appeals with the CSC's Board of Appeals and Review. Id. After President Johnson issued Executive Order 11375, in October 1967, which prohibited discrimination in federal employment on the basis of sex, the CSC amended its regulations to require that sex discrimination complaints be processed the same as other EEO complaints. Fed. Reg. 15,631 (Nov. 10, 1967). In 1969, the CSC revised its regulations. Significant changes to the regulations included: complainants were required to participate in informal counseling prior to filing a formal complaint, and complaints examiners were prohibited from being employees of the respondent agency. Id. The CSC subsequently amended its regulations several times between 1972 and 1979.

When the Commission gained authority over the CSC's functions regarding federal sector employment discrimination in 1979, it decided to keep the existing process in place until a detailed study could be completed. EEOC Adoption and Amendment of Civil Service Commission Federal Employee Discrimination Complaint Regulations, 43 Fed. Reg. 60,900 (Dec. 29, 1978). Thus, the Commission adopted the CSC regulations with only minor technical changes. 43 Fed. Reg. 60,900 (Dec. 29, 1978). The regulations were moved from 5 C.F.R. Part 713 and re-designated at 29 C.F.R. Part 1613, effective Jan. 1, 1979. Id. at 60,901.

In the early 1980s, the Commission amended its regulations with respect to the issue of remedies for complainants alleging discrimination in violation of the Rehabilitation Act. Specifically, in October 1981, the Commission amended its regulations to authorize back pay to applicants for federal employment who successfully proved disability discrimination in order to comply with the 1978 amendments to the Rehabilitation Act of 1973. Complaints of Handicap Discrimination in the Federal Government, 46 Fed. Reg. 51,384 (Oct. 20, 1981). The 1978 amendments provided that prevailing complainants of disability discrimination were entitled to the same remedies as those provided under Title VII. Id. The Commission's amendments deleted the provision in the regulations prohibiting back pay awards to applicants aggrieved by disability discrimination. Id.

During the mid-1980s, the Commission significantly revised its regulations governing the processing of federal sector complaints. Initially, the regulations were amended in 1985, to provide for a special panel to resolve conflicts between the MSPB and the Commission. EEOC and Merit Systems Protection Board Regulations for Special Panel Proceedings, 50 Fed. Reg. 53,897 (Dec. 27, 1985). Subpart D, "Processing Mixed Case Complaints," was amended to provide for a means to refer cases to a special panel, the organization of the special panel, and the procedures of the panel. Id. Subsequently, the Commission revised its regulations, effective November 30, 1987. 1987 Revisions to Federal Employee Discrimination Complaint Procedures, 52 Fed. Reg. 41,920 (Oct. 30, 1987). The revised regulations encompassed numerous changes including providing additional grounds for dismissing complaints, as well as providing a right of appeal for complainants alleging breach of a settlement agreement. Id. In addition, the Commission in 1987 renamed complaints examiners "Administrative Judges" (effective March 30, 1987) in order to "reflect more accurately the nature of the position." Nomenclature Change to Federal Employee Discrimination Complaint Procedures, 52 Fed. Reg. 10,085 (Mar. 30, 1987).

III. THE 1990s TO THE Present

The 1990s also represented a time of significant change to the Commission's regulations governing the processing of federal sector complaints. The Commission issued revised regulations effective October 1, 1992. 57 Fed. Reg. 12,634 (Apr. 10, 1992). These revisions moved the regulations from 29 C.F.R. Part 1613 to 29 C.F.R. Part 1614. Id. Part 1614 was organized differently than the prior version of the regulations. Id. Specifically, Part 1613 contained separate subparts for each type of complaint (Title VII complaints, age complaints, mixed case complaints, etc.). Part 1614 consolidated the procedures as much as possible in an effort to avoid repetition. Id. One noteworthy change encompassed in the 1992 revisions was extending the time limit to contact an EEO Counselor from 30 days to 45 days. Id. at 12,635.

Pursuant to the recommendations of a Federal Sector Workgroup, comprised of representatives from various offices throughout the EEOC, the Commission revised its regulations again in 1999, effective November 9, 1999. 1999 Revisions to EEOC Federal Employee Discrimination Complaint Procedures, 64 Fed. Reg. 37,644 (July 12, 1999)(codified at 29 C.F.R. Part 1614). Some of the significant changes to the regulations included: a requirement that agencies establish an alternative dispute resolution program, providing additional grounds for dismissal, providing Commission Administrative Judges with the authority to dismiss complaints, and making Administrative Judge decisions final decisions without potential agency modification. Id. at 37,644-37,645; 37,650. In addition, the revised regulations implemented changes to the provisions governing class complaints to ensure that complaints "raising class claims are not unjustifiably denied class certification and are resolved under the appropriate legal standards consistent" with the federal courts. Id. at 37,651. Moreover, the Commission issued guidance regarding its new regulations in EEO Management Directive-110 (MD-110) (Nov. 9, 1999).

In 1992, Congress amended Section 501 of the Rehabilitation Act to adopt the employment nondiscrimination standards of the Americans with Disabilities Act (ADA). 67 Fed. Reg. 35,732 (May 21, 2002). Effective June 20, 2002, the Commission deleted from its regulations the text of its old Section 501 regulation, at 29 C.F.R. § 1614.203. Id. The new text of § 1614.203 provides, in pertinent part, that the standards used to determine whether Section 501 of the Rehabilitation Act has been violated in a complaint alleging employment discrimination shall be the standards applied under the ADA. 67 Fed. Reg. 35,735 (May 21, 2002).

In an effort to clarify its procedures on mixed case complaints, the Commission issued EEO Management Bulletin 100-1 (EEO MB 100-1) on October 24, 2003. This bulletin advises agencies to delete from their copies of EEO MD-110 Section II.B.4.d in Chapter 4. EEO-MB 100-1 (Oct. 24, 2003). This section advised agency representatives to file a motion with an MSPB Administrative Judge to consolidate matters that were not within their jurisdiction with matters that were properly before the MSPB Administrative Judge. Id. The MSPB notified the Commission that this section was improper because it constituted a request for an MSPB Administrative Judge to hear matters that may not be within the jurisdiction of the MSPB. Id.

In 2004, the process that led to the current regulatory revisions began when the Commission created a workgroup to develop consensus recommendations from the Commissioners for improvements to the federal sector EEO complaint process. The workgroup considered a number of items including testimony and submissions from a November 12, 2002, Commission meeting on federal sector reform, staff proposals, and submissions from internal and external stakeholders including the National Employment Lawyers Association and the Commission's union. The workgroup determined that while there was no consensus among the Commissioners for large-scale revision of the federal sector EEO process, there was agreement on several discrete changes to the existing regulations that would clarify or build on the 1999 Part 1614 revisions.

Based on the workgroup's recommendations, a Notice of Proposed Rulemaking (NPRM) was drafted that amended certain sections of 29 C.F.R. 1614. The Commission approved the draft NPRM on June 2, 2008, circulated it to federal agencies on June 4, 2008, pursuant to Executive Order 12067, and gave agencies two months to submit comments. Thirty-three (33) agencies or agency components submitted comments. After coordination with the Office of Management and Budget (OMB) and the commenting agencies, the Commission formally submitted the draft NPRM to OMB for review under Executive Order 12866 on July 27, 2009.

The Commission approved the NPRM on December 9, 2009, and published it in the Federal Register on December 21, 2009. The Commission received 35 public comments: 14 from federal agencies; 6 from individuals; 5 from civil rights groups; 5 from members of the bar; and 5 from unions or other groups. The Commission issued the Final Rule, with public comments discussed in the preamble, on July 25, 2012.

The final rule contains a number of key revisions to 29 C.F.R. Part 1614:

  • As part of the Commission's authority to review agency programs for compliance with Commission directives and guidelines that promote equal employment opportunity in the federal workplace, the Commission can issue notices to agencies when non-compliance is found and not corrected.
  • Agencies can seek approval from the Commission to conduct pilot projects in which the complaint processing procedures vary from the requirements of Part 1614.
  • A complaint that alleges that a proposal or preliminary step to taking a personnel action is discriminatory can be dismissed, unless the complainant alleges that the proposal is retaliatory.
  • An agency that has not completed its investigation in a timely manner must inform the complainant in writing that the investigation is not complete, provide an estimated date of completion, and remind the complainant that s/he has a current right to request a hearing or file a lawsuit.
  • An Administrative Judge's decision on the merits of a class complaint is a final decision, rather than a recommended decision, which an agency can implement or appeal.
  • Agencies must submit appeals and complaint files to the Commission in a digital format, unless they can establish good cause for not doing so. Complainants are encouraged to submit digital filings.

The rule also required that the Commission provide guidance regarding the changes made by the final rule and continue to assess the federal sector EEO complaint process with a view to further improvements.

The Commission is now in the process of considering more significant changes to the federal sector complaint process than those issued in the Final Rule adopted in 2012. An Advanced Notice of Proposed Rulemaking (ANPRM) was issued in Feb. 2015 asking federal agencies, employees and the public to consider how the Commission's federal sector complaint process currently works and whether wholesale revisions to the process are needed. The Commission received approximately 100 comments in response. After review of those comments, the Commission intends to issue a NPRM to amend the 1614 regulations. A final revised 1614 regulation may incorporate changes to the processing of complaints and therefore to MD-110. Nonetheless, because the 2012 Final Rule is already in effect and there is a need to provide agencies with guidance on how to implement important changes made in that rule, the Commission believes it is necessary to issue this revised MD-110.

[1] In 1941, President Franklin D. Roosevelt signed Executive Order 8802, which prohibited government contractors from engaging in employment discrimination based on race, creed, color, or national origin. Executive Order No. 8802, 6 Fed. Reg. 3,109 (June 27, 1941).

[2] President Truman concurrently issued Executive Order 9981, which ordered desegregation of the U.S. Armed Forces. Executive Order No. 9981, 13 Fed. Reg. 4,313 (July 26, 1948).

[3] Executive Order 10925 also added "creed" as a prohibited basis of discrimination and prohibited federal government contractors from discriminating on account of race. Executive Order No. 10925, 26 Fed. Reg. 1977 (Mar. 8, 1961).

[4] Executive Order 11246 also imposed nondiscrimination requirements on contractors and subcontractors as a condition of doing business with the federal government. Executive Order No. 11246, 30 Fed. Reg. 12,319 (Sept. 28, 1965).

[5] In 1974, Congress amended the Equal Pay Act (EPA) and Age Discrimination in Employment Act (ADEA) to extend coverage to the federal sector. P. Law No. 93-259, 88 Stat. 58 & 88 Stat. 74 (Apr. 8, 1974). Initially, the CSC was responsible for the enforcement of the EPA and the ADEA with respect to the federal sector. Id.