| 28 CFR 42.601
TITLE 28--JUDICIAL ADMINISTRATION
CHAPTER I--DEPARTMENT OF JUSTICE
PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY;
POLICIES AND PROCEDURES
Subpart H--Procedures for Complaints of Employment Discrimination Filed
Against Recipients of Federal Financial Assistance
Authority: E.O. 12250, 45 FR 72995, 3 CFR, 1980 Comp., p. 298; E.O.
12067, 43 FR 28967, 3 CFR, 1978 Comp., p. 206.
Source: Order No. 992-83, 48 FR 3577, Jan. 25, 1983, unless
otherwise noted.
Sec. 42.601 Purpose and application.
The purpose of this regulation is implement procedures for
processing and resolving complaints of employment discrimination filed
against recipients of Federal financial assistance subject to title VI
of the Civil Rights Act of 1964, title IX of the Education Amendments of
1972, the State and Local Fiscal Assistance Act of 1972, as amended, and
provisions similar to title VI and title IX in Federal grant statutes.
Enforcement of such provisions in Federal grant statutes is covered by
this regulation to the extent they relate to prohibiting employment
discrimination on the ground of race, color, national origin, religion
or sex in programs receiving Federal financial assistance of the type
subject to title VI or title IX. This regulation does not, however,
apply to the Omnibus Crime Control and Safe Streets Act of 1968, as
amended, the Juvenile Justice and Delinquency Prevention Act, as
amended, the Comprehensive Employment Training Act of 1973, as amended,
or Executive Order 11246.
Sec. 42.602 Exchange of information.
EEOC and agencies shall share any information relating to the
employment policies and practices of recipients of federal financial
assistance that may assist each office in carrying out its
responsibilities. Such information shall include, but not necessarily be
limited to, affirmative action programs, annual employment reports,
complaints, investigative files, conciliation or compliance agreements,
and compliance review reports and files.
Sec. 42.603 Confidentiality.
When an agency receives information obtained by EEOC, the agency
shall observe the confidentiality requirements of sections 706(b) and
709(e) of title VII as would EEOC, except in cases where the agency
receives the same information from a source independent of EEOC or has
referred a joint complaint to EEOC under this regulation. In such cases,
the agency may use independent source information or information
obtained by EEOC under the agency's investigative authority in a
subsequent title VI, title IX or revenue sharing act enforcement
proceeding. Agency questions concerning confidentiality shall be
directed to the Associate Legal Counsel for Legal Services, Office of
Legal Counsel of EEOC.
Sec. 42.604 Standards for investigation, reviews and hearings.
In any investigation, compliance review, hearing or other
proceeding, agencies shall consider title VII case law and EEOC
Guidelines, 29 CFR parts 1604 through 1607, unless inapplicable, in
determining whether a recipient of Federal financial assistance has
engaged in an unlawful employment practice.
Sec. 42.605 Agency processing of complaints of employment
discrimination.
(a) Within ten days of receipt of a complaint of employment
discrimination, an agency shall notify the respondent that it has
received a complaint of employment discrimination, including the date,
place and circumstances of the alleged unlawful employment practice.
(b) Within thirty days of receipt of a complaint of employment
discrimination an agency shall:
(1) Determine whether it has jurisdiction over the complaint under
title VI, title IX, or the revenue sharing act; and
(2) Determine whether EEOC may have jurisdiction over the complaint
under title VII of or the Equal Pay Act.
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(c) An agency shall transfer to EEOC a complaint of employment
discrimination over which it does not have jurisdiction but over which
EEOC may have jurisdiction within thirty days of receipt of a complaint.
At the same time, the agency shall notify the complainant and the
respondent of the transfer, the reason for the transfer, the location of
the EEOC office to which the complaint was transferred and that the date
the agency received the complaint will be deemed the date it was
received by EEOC.
(d) If any agency determines that a complaint of employment
discrimination is a joint complaint, then the agency may refer the
complaint to EEOC. The agency need not consult with EEOC prior to such a
referral. An agency referral of a joint complaint should occur within
thirty days of receipt of the complaint.
(e) An agency shall refer to EEOC all joint complaints solely
alleging employment discrimination against an individual. If an agency
determines that special circumstances warrant its investigation of such
a joint complaint, then the agency shall determine whether the
complainant has filed a similar charge of employment discrimination with
EEOC.
(1) If an agency determines that the complainant has filed a similar
charge of employment discrimination with EEOC, then the agency may
investigate the complaint if EEOC agrees to defer its investigation
pending the agency investigation.
(2) If an agency determines that the complainant has not filed a
similar charge of employment discrimination with the EEOC, then the
agency may investigate the complaint if special circumstances warrant
such action. In such cases, EEOC shall defer its investigation of the
referred joint complaint pending the agency investigation.
(f) An agency shall not refer to EEOC a joint complaint alleging a
pattern or practice of employment discrimination unless special
circumstances warrant agency referral of the complaint to EEOC.
(g) If a joint complaint alleges discrimination in employment and in
other practices of a recipient, an agency should, absent special
circumstances, handle the entire complaint under the agency's own
investigation procedures. In such cases, the agency shall determine
whether the complainant has filed a similar charge of employment
discrimination with EEOC. If such a charge has been filed, the agency
and EEOC shall coordinate their activities. Upon agency request, EEOC
should ordinarily defer its investigation pending the agency
investigation.
(h) When a joint complaint is referred to EEOC for investigation,
the agency shall advise EEOC of the relevant civil rights provision(s)
applicable to the employment practices of the recipient, whether the
agency wants to receive advance notice of any conciliation negotiations,
whether the agency wants EEOC to seek information concerning the
relationship between the alleged discrimination and the recipient's
Federally assisted programs or activities and, where appropriate,
whether a primary objective of the Federal financial assistance is to
provide employment. The agency shall also notify the complainant and the
recipient of the referral, the location of the EEOC office to which the
complaint was referred, the identity of the civil rights provision(s)
involved, the authority of EEOC under this regulation and that the date
the agency received the complaint will be deemed the date it was
received by EEOC. Specifically, the notice shall inform the recipient
that the agency has delegated to EEOC its investigative authority under
title VI, title IX, or the revenue sharing act, and the relevant act's
implementing regulations. The agency, therefore, may use information
obtained by EEOC under the agency's investigative authority in a
subsequent title VI, title IX or revenue sharing act enforcement
proceeding.
[Order No. 992-83, 48 FR 3577, Jan. 25, 1983, as amended at 61 FR 33658,
June 28, 1996]
Sec. 42.606 General rules concerning EEOC action on complaints.
(a) A complaint of employment discrimination filed with an agency,
which is transferred or referred to EEOC under this regulation, shall be
deemed a charge received by EEOC. For all purposes under title VII and
the
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Equal Pay Act, the date such a complaint was received by an agency shall
be deemed the date it was received by EEOC.
(b) When EEOC investigates a joint complaint it shall, where
appropriate, seek sufficient information to allow the referring agency
to determine whether the alleged employment discrimination is in a
program or activity that receives Federal financial assistance and/or
whether the alleged employment discrimination causes discrimination with
respect to beneficiaries or potential beneficiaries of the assisted
program.
(c) Upon referral of a joint complaint alleging a pattern or
practice of employment discrimination, EEOC generally will limit its
investigation to the allegation(s) which directly affect the
complainant.
(d) If EEOC, in the course of an investigation of a joint complaint,
is unable to obtain information from a recipient through voluntary
means, EEOC shall consult with the referring agency to determine an
appropriate course of action.
(e) If EEOC agrees to defer its investigation of a complaint of
employment discrimination pending an agency investigation of the
complaint, then EEOC shall give due weight to the agency's determination
concerning the complaint.
Sec. 42.607 EEOC dismissals of complaints.
If EEOC determines that the title VII allegations of a joint
complaint should be dismissed, EEOC shall notify the complainant and the
recipient of the reason for the dismissal and the effect the dismissal
has on the complainant's rights under the relevant civil rights
provision(s) of the referring agency, and issue a notice of right to sue
under title VII. At the same time, EEOC shall transmit to the referring
agency a copy of EEOC's file.
Sec. 42.608 Agency action on complaints dismissed by EEOC.
Upon EEOC's transmittal of a dismissal under Sec. 42.607 of this
regulation, the referring agency shall determine within thirty days,
what, if any, action the agency intends to take with respect to the
complaint and then notify the complainant and the recipient. In reaching
that determination, the referring agency shall give due weight to EEOC's
determination that the title VII allegations of the joint complaint
should be dismissed. If the referring agency decides to take action with
respect to a complaint that EEOC has dismissed for lack of reasonable
cause to believe that title VII has been violated, the agency shall
notify the Assistant Attorney General and the Chairman of the EEOC in
writing of the action it plans to take and the basis of its decision to
take such action.
Sec. 42.609 EEOC reasonable cause determination and conciliation
efforts.
(a) If EEOC, after investigation of a joint complaint, determines
that reasonable cause exists to believe that title VII has been
violated, EEOC shall advise the referring agency, the complainant and
the recipient of that determination and attempt to resolve the complaint
by informal methods of conference, conciliation and persuasion. If EEOC
would like the referring agency to participate in conciliation
negotiations, EEOC shall so notify the agency and the agency shall
participate. EEOC shall provide advance notice of any conciliation
negotiations to referring agencies that request such notice, whether or
not EEOC requests their participation in the negotiations.
(b) If EEOC's efforts to resolve the complaint by informal methods
of conference, conciliation and persuasion fail, EEOC shall:
(1) Issue a notice of failure of conciliation to the recipient in
accordance with 29 CFR 1601.25;
(2) Transmit to the referring agency a copy of EEOC's investigative
file, including its Letter of Determination and notice of failure
conciliation;
(3) If the recipient is not a government, governmental entity or
political subdivision, determine whether EEOC will bring suit under
title VII and, in accordance with 29 CFR 1601.28, issue a notice of
right to sue under title VII;
(4) If the recipient is a government, governmental entity or
political subdivision, refer the matter to the Attorney General in
accordance with 29 CFR 1601.29. The Attorney General, or his or
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her delegate, will determine whether the Department of Justice will
bring suit under title VII and, in accordance with 29 CFR 1601.28, issue
a notice of right to sue under title VII.
Sec. 42.610 Agency enforcement of unresolved complaints.
(a) Upon EEOC's transmittal of a reasonable cause determination and
notice of failure of conciliation under Sec. 42.609(b)(2) of this
regulation, the referring agency shall determine, within thirty days,
whether the recipient has violated any applicable civil rights
provision(s) which the agency has a responsibility to enforce. The
referring agency shall give due weight to EEOC's determination that
reasonable cause exists to believe that title VII has been violated.
(b) If the referring agency determines that the recipient has
violated any applicable civil rights provision(s) which the agency has a
responsibility to enforce, the agency shall so notify the complainant
and the recipient and determine whether further efforts to obtain
voluntary compliance are warranted. In reaching that determination, the
agency shall give due weight to the failure of EEOC's efforts to resolve
the complaint by informal methods. If the referring agency determines
that further efforts to obtain voluntary compliance are not warranted or
if such further efforts fail, the agency shall initiate appropriate
enforcement proceedings under its own regulations.
(c) If the referring agency determines that the recipient has not
violated any applicable civil rights provision(s) which the agency has a
responsibility to enforce, the agency shall notify the complainant, the
recipient, the Assistant Attorney General and the Chairman of the EEOC
in writing of the basis of that determination.
Sec. 42.611 EEOC negotiated settlements and conciliation agreements.
If the parties enter into a negotiated settlement (as described in
29 CFR 1601.20) prior to a determination or a conciliation agreement (as
described in 29 CFR 1601.24) after a determination, EEOC shall notify
the referring agency that the complaint has been settled. The agency
shall take no further action on the complaint of employment
discrimination thereafter except that the agency may take the existence
of the complaint into account in scheduling the recipient for a review
under the agency's regulations.
Sec. 42.612 Interagency consultation.
(a) Before investigating whether the employment practices of a
recipient of Federal financial assistance constitute a pattern or
practice of unlawful discrimination or initiating formal administrative
enforcement procedures on that basis, an agency shall, to the extent
practical, consult with the Chairman of the EEOC and the Assistant
Attorney General to assure that duplication of effort will be minimized.
(b) Prior to the initiation of any legal action against a recipient
of Federal financial assistance alleging unlawful employment practices,
the Department of Justice and/or EEOC shall, to the extent practical,
notify the appropriate agency or agencies of the proposed action and the
substance of the allegations.
Sec. 42.613 Definitions.
As used in this regulation, the term:
(a) Agency means any Federal department or agency which extends
Federal financial assistance subject to any civil rights provision(s) to
which this regulation applies.
(b) Assistant Attorney General refers to the Assistant Attorney
General, Civil Rights Division, United States Department of Justice, or
his or her delegate.
(c) Chairman of the EEOC refers to the Chairman of the Equal
Employment Opportunity Commission, or his or her delegate.
(d) EEOC means the Equal Empoyment Opportunity Commission and, where
appropriate, any of its District Offices.
(e) Federal financial assistance includes:
(1) Grants and loans of Federal funds,
(2) The grant or donation of Federal property and interests in
property,
(3) The detail of Federal personnel,
(4) The sale and lease of, and the permission to use (on other than
a casual or transient basis), Federal property or any interest in such
property without
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consideration or at a nominal consideration, or at a consideration which
is reduced for the purpose of assisting the recipient, or in recognition
of the public interest to be served by such sale or lease to the
recipient, and
(5) Any Federal agreement, arrangement, or other contract which has
as one of its purposes the provision of assistance.
For purposes of this regulation, the term Federal financial
assistance also includes funds disbursed under the revenue sharing act.
(f) Joint complaint means a complaint of employment discrimination
covered by title VII or the Equal Pay Act and by title VI, title IX, or
the revenue sharing act.
(g) Recipient means any State, political subdivision of any State,
or instrumentality of any State or political subdivision, any public or
private agency, institution, organization, or other entity, or any
individual, in any State, to whom Federal financial assistance is
extended, directly or through another recipient, for any program,
including any successor, assign, or transferee thereof, but such term
does not include any ultimate beneficiary under such program.
(h) Revenue sharing act refers to the State and Local Fiscal
Assistance Act of 1972, as amended, 31 U.S.C. 1221 et seq.
(i) Title VI refers to title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d to 2000d-4. Where appropriate, title VI also refers to the
civil rights provisions of other Federal statutes or regulations to the
extent that they prohibit employment discrimination on the ground or
race, color, religion, sex or national origin in programs receiving
Federal financial assistance of the type subject to title VI itself.
(j) Title VII refers to title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. 2000e, et seq.
(k) Title IX refers to title IX of the Education Amendments of 1972,
20 U.S.C. 1681 to 1683.
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