Rules Regarding Equal Opportunity

FEDERAL RESERVE SYSTEM

12 CFR Part 268

[Docket No. R-0797]

Rules Regarding Equal Opportunity

AGENCY: Board of Governors of the Federal Reserve System.

ACTION: Final rule.

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SUMMARY: The Board of Governors of the Federal Reserve System (the

Board) has revised and reissued its Rules Regarding Equal Opportunity

(Rules) to conform those Rules as closely as possible to the Equal

Employment Opportunity Commission's (the Commission's) complaint

processing regulation for federal employers, ``Federal Sector Equal

Employment Opportunity'', which became effective October 1, 1992.

EFFECTIVE DATE: May 6, 1994.

FOR FURTHER INFORMATION CONTACT: Stephen L. Siciliano, Special

Assistant to the General Counsel for Administrative Law (202/452-3920),

or J. Mills Williams, Senior Attorney (202/452-3701), Legal Division,

Board of Governors of the Federal Reserve System. For hearing impaired

only, Telecommunication Device for the Deaf (TDD), Dorothea Thompson

(202/452-3544), Board of Governors of the Federal Reserve System, 20th

and C Streets NW., Washington, DC 20551.

SUPPLEMENTARY INFORMATION: These Rules are hereby issued as a final

rule. The Board issued these Rules as an interim rule, with request for

public comments, on February 18, 1993. This final rule deviates from

the interim rule in only a few particulars, based upon recommendations

received from the Commission and from interested members of the Board's

staff.

With regard to laws respecting discrimination in employment, the

Board as a matter of policy has long recognized that it should afford

to its employees, applicants for employment, and others the same

substantive and procedural rights that are enjoyed by persons in their

dealings with other government agencies. Pursuant to this policy, part

268 has been revised by the Board after the issuance by the Commission

of its federal sector complaint processing regulations (29 CFR part

1614) which became effective on October 1, 1992. A new part 268 was

issued by the Board as an interim rule effective February 18, 1993; (58

FR 9517, February 22, 1993) and is now issued as a final rule with

revisions following receipt and consideration of public comments.

Consistent with the Commission's new regulations, this final rule

addresses matters of the kind addressed by Title VII of the Civil

Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.), the

Rehabilitation Act, as amended (29 U.S.C. 791), the Age Discrimination

in Employment Act, as amended (29 U.S.C. 621 et seq.) and the Equal Pay

Act (29 U.S.C. 206(d)). Subpart G (Prohibition Against Discrimination

In Board Programs And Activities Because Of A Physical Or Mental

Handicap) of the interim rule has also been revised consistent with

recent revisions to section 504 of the Rehabilitation Act, as amended

(29 U.S.C. 794).

Summary of Comments

The Commission and one commenter recommended that the terms

``handicap'' and ``handicapped'' should be replaced with ``disability''

or ``disabled'' throughout the Rules. The Rehabilitation Act Amendments

of 1992 substituted the term ``disability'' for the term ``handicap''

throughout the Rehabilitation Act (Section 102(f), Pub. L. 102-569). It

is the Board's intention to update the language of its Rules to conform

to the 1992 amendment with whatever updates are made by the Commission.

Although such revisions have not yet been incorporated in the

Commission's regulations (29 CFR part 1614), in light of the

Commission's specific recommendations, the Board has substituted

appropriate language throughout the Rules as set forth above.

One commenter took exception to the deletion of section 703 (Self

evaluation) of the prior Rules, which was in effect prior to February

18, 1993. Section 703 had required the Board to evaluate its then

current policies and practices, and to make necessary modifications,

regarding the upgrade of its facilities to conform to the standards of

Section 504 of the Rehabilitation Act. The time limits stated in

section 703 have passed. The Board has conducted the required survey of

its facilities, and the Board has been implementing appropriate

modifications to its facilities. Therefore, the Board believes that

section 703 has become moot. The Board believes that this is a

technical deletion that does not affect the Board's strong and

continuing commitment to equal opportunity and equal access for

individuals with a disability.

The Commission suggested merging Sec. 268.102(u) into

Sec. 268.102(t) of the Rules, so that both paragraphs relate to

sections 501 and 504 of the Rehabilitation Act. The Board has adopted

this suggestion. The Commission also suggested that the Board amend the

definition of ``individual with a disability'' to exclude from the

definition alcoholics and individuals with current infectious diseases.

With the assistance of the Commission's staff, the Board has inserted

language in Sec. 268.303 which provides that alcoholics will be held to

the same performance and conduct standards that all other Board

employees must satisfy, following the Commission's regulations

regarding holding alcoholics to the same performance and conduct

standards to which an employer holds its other employees. 29 CFR

1630.16(b). In addition, language has been inserted to prevent persons

with infectious diseases from working in the Board's food handling

area, following the Commission's regulations regarding infectious and

communicable diseases for food handling jobs. 29 CFR 1630.16(e).

The Commission suggested that adoption of part 268 by the Board is

unnecessary in light of the Commission's Government-wide complaint

processing procedures. 29 CFR part 1614. The Board believes, however,

based on specific provisions of the Federal Reserve Act and established

precedent, that adoption of part 268 is necessary to authorize and

insure the Board's compliance with the important national policies set

forth in the Equal Employment Opportunity Act and the other laws cited

above. The Board will continue to work closely with the Commission to

insure effective implementation of these Rules consistent with those

laws and the policies of the Commission.

Finally, one commenter expressed a concern regarding the

organizational placement and reporting relationship of the EEO Programs

Officer. Citing the Commission's Federal Sector Equal Employment

Opportunity regulations (29 CFR 1614.102(b)(3)), the commenter proposed

that the EEO Programs Officer report to the Chairman of the Board of

Governors. The Commission addressed this matter in the preamble to its

regulations and stated ``Moreover, Sec. 1614.607 permits [the agency

head] to delegate that authority. Ultimate responsibility would remain,

though, with the higher official.'' 57 FR 12642, April 10, 1992. The

Board believes that the EEO Programs Officer's reporting relationship

is appropriate and is consistent with the Commission's approach. In

this connection, the Board's Rule provides that the EEO Programs

Officer, who reports to the Staff Director for Management and whose

title has been changed to ``EEO Programs Director'' as reflected in

this Final Rule, may ``advise and consult with the Chairman of the

Board of Governors * * *'' Sec. 268.103(c)(2).

Other Revisions to Interim Rule

Additional, minor modifications have been made in the final rule

based on comments received from Board staff. These modifications are

not substantive:

(1) The third sentence in Sec. 268.103(c)(11) has been re-written

to reflect actual practice concerning the EEO Programs Director's

contracting authority;

(2) A new paragraph (d) has been added to Sec. 268.202 stating that

section 501 of the Rehabilitation Act is covered by these Rules, which

caused paragraphs (d) and (e) to be renumbered as paragraphs (e) and

(f);

(3) Sections 268.202(e)(13), 268.205(c), 268.204(b) and 268.604(b)

were modified to clarify existing language in the interim rule;

(4) Section 268.204(f) was modified to make it clear that the Board

will develop and use alternative dispute resolution procedures;

(5) Section 268.206(a)(7) was modified to provide that the Staff

Director for Management or the General Counsel, or their designees,

should consult with the EEO Programs Director before issuing the

certification as provided for in subparagraph (7);

(6) Because of the strict time limits governing the issuance of a

final decision, Secs. 268.209(a) and 268.709(k) have been modified to

provide that the Governors will have only 3 business days (formerly 7

calendar days) to ask that a matter be brought to the full Board for

final decision rather than be resolved by the Board's delegee; and

(7) Section 268.304(b)(3) was modified so that it now provides that

the Board will prefer only U.S. citizens over equally qualified

noncitizens in hiring. This was done to insure compliance with the

Immigration Reform and Control Act, as amended.

These rules are hereby issued as the Board's final rule and this

final rule shall be made effective 30 days from publication. 5 U.S.C.

553(d)(3).

List of Subjects in 12 CFR Part 268

Administrative practice and procedure, Age, Americans with

disabilities, Civil rights, Equal employment opportunity, Federal

buildings and facilities, Federal Reserve System, Government employees,

Religious discrimination, Sex discrimination, Wages.

For the reasons set out in the preamble, chapter II of the Code of

Federal Regulations is amended by revising 12 CFR part 268 to read as

follows:

PART 268--RULES REGARDING EQUAL OPPORTUNITY

Subpart A--General Provisions and Administration

Sec.

268.101 Authority, purpose and scope.

268.102 Definitions.

268.103 Equal employment designations.

Subpart B--Board Program To Promote Equal Opportunity

268.201 General policy for equal opportunity.

268.202 Board program for equal employment opportunity.

268.203 Complaints of discrimination covered under this part.

268.204 Pre-complaint processing.

268.205 Individual complaints.

268.206 Dismissals of complaints.

268.207 Investigation of complaints.

268.208 Hearings.

268.209 Final decisions.

Subpart C--Provisions Applicable to Particular Complaints

268.301 Age Discrimination in Employment Act.

268.302 Equal Pay Act.

268.303 Rehabilitation Act.

268.304 Employment of noncitizens.

268.305 Class complaints.

Subpart D--Review by the Equal Employment Opportunity Commission

268.401 Review by the Equal Employment Opportunity Commission.

268.402 Time limits for review by the Equal Employment Opportunity

Commission.

268.403 How to seek review.

268.404 Procedure on review.

268.405 Decisions on review.

268.406 Reconsideration.

Subpart E--Remedies, Enforcement and Civil Actions

268.501 Remedies and relief.

268.502 Compliance with EEOC decisions.

268.503 Enforcement of EEOC decisions.

268.504 Compliance with settlement agreements and final decisions.

268.505 Civil action: Title VII, Age Discrimination in Employment

Act and Rehabilitation Act.

268.506 Civil action: Equal Pay Act.

268.507 Effect of filing a civil action.

Subpart F--Matters of General Applicability

268.601 EEO group statistics.

268.602 Reports to the Equal Employment Opportunity Commission.

268.603 Voluntary settlement attempts.

268.604 Filing and computation of time.

268.605 Representation and official time.

268.606 Joint processing and consolidation of complaints.

Subpart G--Prohibition Against Discrimination in Board Programs and

Activities Because of a Physical or Mental Disability

268.701 Purpose and application.

268.702 Notice.

268.703 Prohibition against discrimination.

268.704 Employment.

268.705 Program accessibility: Discrimination prohibited.

268.706 Program accessibility: Existing facilities.

268.707 Program accessibility: New construction and alterations.

268.708 Communications.

268.709 Compliance procedures.

Authority: 12 U.S.C. 244 and 248(i), (k) and (l).

Subpart A--General Provisions and Administration

Sec. 268.101 Authority, purpose and scope.

(a) Authority. The regulations in this part (12 CFR part 268) are

issued by the Board of Governors of the Federal Reserve System under

the authority of sections 10(4) and 11(i), (k) and (l) of the Federal

Reserve Act (partially codified in 12 U.S.C. 244 and 248(i), (k) and

(l)).

(b) Purpose and scope. This part sets forth the Board's policy,

program and procedures for providing equal opportunity to Board

employees and applicants for employment without regard to race, color,

religion, sex, national origin, age, or physical or mental disability.

It also sets forth the Board's policy, program and procedures for

prohibiting discrimination on the basis of physical or mental

disability in programs and activities conducted by the Board. It also

specifies the circumstances under which the Board will hire or decline

to hire persons who are not citizens of the United States, consistent

with the Board's operational needs, the requirements and prohibitions

of the Immigration Reform and Control Act of 1986, as amended, and

other applicable law.

Sec. 268.102 Definitions.

The definitions contained in this section shall have the following

meanings throughout this part unless otherwise stated.

(a) ADEA means the Age Discrimination In Employment Act (29 U.S.C.

621 et seq.).

(b) Agent of the class means a class member who acts for the class

during the processing of the class complaint under Sec. 268.305 of this

part.

(c) Agreement of resolution means the agreement referred to in

Sec. 268.305(f)(3) of this part.

(d) Auxiliary aids as used in subpart G of this part means services

or devices that enable persons with impaired sensory, manual, or

speaking skills to have an equal opportunity to participate in, and

enjoy the benefits of, programs or activities conducted by the Board.

For example, auxiliary aids useful for persons with impaired vision

include readers, Braille materials, audio recordings, telecommunication

devices and other similar services and devices. Auxiliary aids useful

for persons with impaired hearing include telephone handset amplifiers,

telephones compatible with hearing aids, telecommunication devices for

deaf persons (TDD's), interpreters, note takers, written materials, and

other similar services and devices.

(e) Board means the Board of Governors of the Federal Reserve

System.

(f) Class as used in Sec. 268.305 of this part means a group of

Board employees, former employees or applicants for employment who

allegedly have been or are being adversely affected by a personnel

policy or practice of the Board that discriminates against the group on

the basis of their race, color, religion, sex, national origin, age or

disability.

(g) Class complaint means a written complaint of discrimination

filed on behalf of a class by the agent of the class alleging that:

(1) The class is so numerous that a consolidated complaint of the

members of the class is impractical;

(2) There are questions of fact common to the class;

(3) The claims of the agent of the class are typical of the claims

of the class; and

(4) The agent of the class, or, if represented, the representative,

will fairly and adequately protect the interests of the class.

(h) Commission means the Equal Employment Opportunity Commission.

(i) Complainant means an aggrieved person who files an individual

complaint pursuant to Sec. 268.205 of this part, except that

complainant shall mean a complainant, agent of the class or individual

class claimant for purposes of Secs. 268.209, 268.402 through 268.406

and subparts E and F of this part.

(j) Complete complaint as used in subpart G of this part means a

written statement that contains the complainant's name and address and

describes the Board's alleged discriminatory actions in sufficient

detail to inform the Board of the nature and date of the alleged

violation. It shall be signed by the complainant or by someone

authorized to do so on his or her behalf. Complaints filed on behalf of

classes or third parties shall describe or identify (by name, if

possible) the alleged victims of discrimination.

(k) EEOC decision means the written decision issued by the

Commission's Office of Federal Operations as described in Sec. 268.405

of this part.

(l) Facility means all or any portion of buildings, structures,

equipment, roads, walks, parking lots, rolling stock or other

conveyances, or other real or personal property.

(m) Final decision means the Board's decision described in

Sec. 268.209 of this part.

(n) Has a record of such an impairment means has a history of, or

has been classified (or misclassified) as having, a physical or mental

impairment that substantially limits one or more major life activities.

(o) Individual with a disability means a person who:

(1) Has a physical or mental impairment which substantially limits

one or more of such person's major life activities;

(2) Has a record of such an impairment; or

(3) Is regarded as having such an impairment; and

(4) Shall not include an individual, a Board employee or applicant

for employment, impaired while under the influence of illegal drugs, an

individual disabled by alcoholism, or an individual with an infectious

or communicable disease, as further defined in Sec. 268.303(g) of this

part.

(p) Investigator means an investigative officer or complaint

examiner selected or appointed pursuant to Secs. 268.103(c)(11) and

268.305(e)(3) of this part.

(q) Is regarded as having an impairment means:

(1) Has a physical or mental impairment that does not substantially

limit major life activities but is treated by the Board as constituting

such a limitation;

(2) Has a physical or mental impairment that substantially limits

major life activities only as a result of the attitudes of others

toward such impairment; or

(3) Has none of the impairments defined in Sec. 268.102(s) of this

part, but is treated by the Board as having such an impairment.

(r) Major life activities means functions, such as caring for one's

self, performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning and working.

(s) Physical or mental impairment means:

(1) Any physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the

following body systems: Neurological, musculoskeletal, special sense

organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genitourinary, hemic and lymphatic, skin, and

endocrine; or

(2) Any mental or psychological disorder, such as mental

retardation, organic brain syndrome, emotional or mental illness, and

specific learning disabilities.

(t) Qualified individual with a disability means:

(1) With respect to a Board program or activity under which a

person is required to perform services or to achieve a level of

accomplishment, an individual with a disability who meets the essential

eligibility requirements and who can achieve the purpose of the program

or activity without modifications in the program or activity that the

Board can determine on the basis of a written record would result in a

fundamental alteration in its nature;

(2) With respect to any other program or activity, an individual

with a disability who meets the essential eligibility requirements for

participation in, or receipt of benefits from, that program or

activity; or

(3) With respect to employment, an individual with a disability

who, with or without reasonable accommodation, can perform the

essential functions of the position in question without endangering the

health and safety of the individual or others, and who meets the

experience or education requirements (which may include passing a

written test) of the position in question.

(u) Title VII means Title VII of the Civil Rights Act (42 U.S.C.

2000e et seq.).

Sec. 268.103 Equal employment designations.

(a) Administrative Governor. The Administrative Governor, a member

of the Board of Governors designated by the Chairman of the Board, is

charged with overseeing the internal affairs of the Board and is

empowered to make decisions and determinations on behalf of the Board

when authority to do so is delegated to him or her.

(1) The Administrative Governor is hereby delegated the authority

to make determinations adjudicating complaints of discrimination

pursuant to Secs. 268.206, 268.209, 268.305(i) and 268.709 of this

part, unless a member of the Board of Governors has requested that the

Board of Governors make the decision on the complaint pursuant to

Secs. 268.209(a) or 268.709(k) of this part, settlements pursuant to

Sec. 268.305(f) of this part and determinations regarding attorney fees

pursuant to Sec. 268.501(e) of this part. The Administrative Governor

is further delegated the authority to order such corrective measures,

including such remedial actions as may be required by subpart E of this

part, as he or she may consider necessary, including such disciplinary

action as is warranted by the circumstances when an employee has been

found to have engaged in a discriminatory practice.

(2) The Administrative Governor may delegate to any officer or

employee of the Board any of his or her duties or functions under this

part.

(3) The Administrative Governor may refer to the Board of Governors

for determination or decision any complaint of discrimination that the

Administrative Governor would otherwise decide pursuant to

Secs. 268.206, 268.209, 268.305(i) and 268.709 of this part,

settlements pursuant to Sec. 268.305(f) of this part and determinations

regarding attorney fees pursuant to Sec. 268.501(e) of this part, and

may make changes in programs and procedures designed to eliminate

discriminatory practices or to improve the Board's programs under this

part, and may make any recommendation for remedial or disciplinary

action with respect to managerial or supervisory employees who have

failed in their responsibilities, or employees who have been found to

have engaged in discriminatory practices, or with regard to any other

matter which the Administrative Governor believes merits the attention

of the Board of Governors.

(b) Staff Director for Management. The Staff Director for

Management shall perform the following functions under this part:

(1) When so authorized by the Administrative Governor, the Staff

Director for Management shall make any determinations on complaints of

discrimination that would otherwise be made by the Administrative

Governor under Secs. 268.206, 268.209, 268.305(i) and 268.709 of this

part, settlement pursuant to Sec. 268.305(f) of this part and

determinations regarding attorney fees pursuant to Sec. 268.501(e) of

this part. The Staff Director for Management shall order such

corrective measures, including such remedial actions as may be required

by subpart E of this part as he or she may consider necessary, and

including the recommendation for such disciplinary action as is

warranted by the circumstances when an employee is found to have

engaged in a discriminatory practice.

(2) The Staff Director for Management shall review the record on

any complaint under this part before a determination is made by the

Board of Governors or the Administrative Governor on the complaint and

make such recommendations as to the determination as he or she

considers desirable, including any recommendation for such disciplinary

action as is warranted by the circumstances when an employee is found

to have engaged in a discriminatory practice.

(3) When authorized by the Administrative Governor, the Staff

Director for Management may make changes in programs and procedures

designed to eliminate discriminatory practices and improve the Board's

program for equal employment opportunity.

(c) EEO Programs Director. The EEO Programs Director is appointed

by the Board of Governors and shall perform the following functions

under this part:

(1) Administer the Board's equal employment opportunity program and

advise the Board, the Administrative Governor and the Staff Director

for Management with respect to the preparation of equal employment

opportunity plans, goals, objectives, procedures, regulations, reports,

and other matters pertaining to the Board's program established under

Sec. 268.202 of this part;

(2) Advise and consult with the Chairman of the Board of Governors,

when necessary, on any matter pertaining to the Board's equal

employment opportunity program and its administration;

(3) Evaluate from time to time the sufficiency of the Board's total

program for equal employment opportunity and report to the Board of

Governors, the Administrative Governor and the Staff Director for

Management, with recommendations as to any improvement or correction

needed, including remedial or disciplinary action with respect to

managerial, supervisory or other employees who have failed in their

responsibilities;

(4) Recommend to the Staff Director for Management and the

Administrative Governor changes in programs and procedures designed to

eliminate discriminatory practices and improve the Board's program for

equal employment opportunity;

(5) Appoint a Federal Women's Program Manager, a Hispanic Program

Coordinator, a Disabled Persons Program Coordinator, and such EEO

Counselor(s) as may be necessary to assist the EEO Programs Director in

carrying out the functions described in this part. The EEO Programs

Director shall ensure such managers, coordinators and counselor(s)

shall receive full and proper training to implement their duties and

responsibilities under this part;

(6) Publicize to Board employees and applicants for employment and

post at all times on official Board bulletin boards:

(i) The names, business telephone numbers, business addresses and

the equal employment opportunity responsibilities of the Staff Director

for Management, the EEO Programs Director, the Federal Women's Program

Manager, the Hispanic Program Coordinator, and the Disabled Persons

Program Coordinator;

(ii) The names, business telephone numbers, business addresses of

EEO Counselors, the segments of the Board for which they are

responsible, the availability of EEO Counselors to counsel an employee

or applicant for employment who believes that he or she has been

discriminated against because or race, color, religion, sex, national

origin, age, or physical or mental disability, and the requirement that

an employee or applicant for employment must consult an EEO Counselor

as provided by Secs. 268.204 and 268.305(a) of this part; and

(iii) The time limits for contacting EEO Counselors;

(7) Provide to each employee annually (and the Division of Human

Resource Management shall provide to each applicant for employment) a

copy of a notice summarizing the general purposes of this part and

specifying where copies of this part can be obtained. The EEO Programs

Director shall ensure that copies of the summary of this part are

posted in permanent locations in all Board facilities. The EEO Programs

Director shall, on the request of any employee or applicant for

employment provide that employee or applicant for employment with a

copy of this part;

(8) Provide for counseling of aggrieved individuals and for the

receipt and processing of individual and class complaints of

discrimination;

(9) Provide for the receipt and investigation of individual

complaints of discrimination, subject to Secs. 268.204 through 268.209

of this part, and provide for the acceptance and processing and/or

dismissal of class action complaints in accordance with Sec. 268.305 of

this part;

(10) Act as the Board's designee under Sec. 268.305(c) of this

part;

(11) Appoint any investigators as necessary to administer this

part. The EEO Programs Director is authorized to request the loan or

assignment of any investigators or administrative judges from any

agency as necessary to administer this part. The EEO Programs Director

shall obtain the concurrence of the Staff Director for Management for

all appointments of and reimbursements to investigators, whether from

the private sector or otherwise, which exceeds the EEO Programs

Director's procurement authority;

(12) Assure that individual complaints are fairly and thoroughly

investigated and that final decisions of the Board are issued in a

timely manner in accordance with this part;

(13) Dismiss a complaint, or a portion of a complaint, pursuant to

Secs. 268.206 and 268.305(c) of this part;

(14) Suspend the complaint process when appropriate for any matter

that is before the Merit Systems Protection Board for a determination;

and

(15) Make recommendations based upon investigative reports,

hearings and EEOC decisions which require the Board's final decision

pursuant to Sec. 268.209 of this part.

(d) EEO Counselors. The EEO Counselor(s) are appointed by the EEO

Programs Director. EEO Counselors shall carry out the functions set

forth in Sec. 268.204 of this part.

(e) Federal Women's Program Manager. The EEO Programs Director

shall appoint a Federal Women's Program Manager. The Federal Women's

Program Manager shall perform the following functions: Advise the Board

of Governors, the Administrative Governor, the Staff Director for

Management and the EEO Programs Director on matters affecting, and

administer the Board's program with respect to, the employment and

advancement of women.

(f) Hispanic Program Coordinator. The EEO Programs Director shall

appoint a Hispanic Program Coordinator. The Hispanic Program

Coordinator shall perform the following functions: Advise the Board of

Governors, the Administrative Governor, the Staff Director for

Management and the EEO Programs Director on matters affecting, and

administer the Board's program with respect to, the employment and

advancement of Hispanics.

(g) Disabled Persons Program Coordinator. The EEO Programs Director

shall appoint a Disabled Persons Program Coordinator. The Disabled

Persons Program Coordinator shall perform the following functions:

Advise the Board of Governors, the Administrative Governor, the Staff

Director for Management and the EEO Programs Director on matters

affecting, and administer the Board's program with respect to, the

employment and advancement of individuals with a disability.

Subpart B--Board Program to Promote Equal Opportunity

Sec. 268.201 General policy for equal opportunity.

(a) It is the policy of the Board to provide equal opportunity in

employment for all persons, to prohibit discrimination in employment

because of race, color, religion, sex, national origin, age or

disability, and to promote the full realization of equal opportunity in

employment through a continuing affirmative program.

(b) It is also the policy of the Board to insure equal opportunity

for individuals with a disability in Board programs and activities

consistent with section 504 of the Rehabilitation Act (29 U.S.C. 794)

and to provide equal opportunity for all persons in accordance with the

Immigration Reform and Control Act of 1986, as amended (8 U.S.C.

1324a).

(c) No person shall be subject to retaliation for opposing any

practice prohibited by this part, or for participating in any stage of

administrative or judicial proceedings under this part. The practices

prohibited by this part include those made unlawful by Title VII, the

ADEA, the Equal Pay Act (29 U.S.C. 206(d)) and the Rehabilitation Act

(29 U.S.C. 791).

Sec. 268.202 Board program for equal employment opportunity.

(a) The Board, on the basis of a person's race, color, religion,

sex or national origin, shall not:

(1) Fail or refuse to hire or discharge any person, or otherwise

discriminate against any person with respect to his or her

compensation, terms, conditions or privileges of employment; or

(2) Limit, segregate, or classify its employees or applicants for

employment in any way which would deprive or tend to deprive any person

of employment opportunities or otherwise adversely affect the person's

status as an employee.

(b)(1) The Board, on the basis of a person's age, shall not:

(i) Fail or refuse to hire or discharge any person or otherwise

discriminate against any person with respect to his or her

compensation, terms, conditions or privileges of employment;

(ii) Limit, segregate or classify its employees or applicants for

employment in any way which would deprive or tend to deprive any person

of employment opportunities or otherwise adversely affect the person's

status as an employee or applicant for employment;

(iii) Reduce the wage rate of any employee in order to comply with

paragraph (b) of this section;

(iv) Discriminate against any employee or applicant for employment

because such employee or applicant for employment has opposed any

practice forbidden under paragraph (b) of this section, or because such

employee or applicant for employment has made a charge, testified,

assisted or participated in any manner in any investigation, proceeding

or litigation involving paragraph (b) of this section or the ADEA; or

(v) Print or publish, or cause to be printed or published, any

notice or advertisement relating to employment by the Board indicating

any preference, limitation, specification or discrimination.

(2) An aggrieved person filing a complaint of discrimination on the

basis of age under this subpart B or Sec. 268.305 of this part must

have been at least 40 years of age at the time the alleged

discrimination occurred.

(c) The Board shall not discriminate among employees on the basis

of sex by paying wages to employees at a rate less than the rate at

which it pays wages to employees of the opposite sex for equal work on

jobs the performance of which require equal skill, effort and

responsibility, and which are performed under similar conditions,

except where such payment is made pursuant to:

(1) A seniority system;

(2) A merit system;

(3) A system which measures earnings by quantity or quality or

production; or

(4) A differential based on any factor other than sex or otherwise

not prohibited by this part.

(d) The Board shall not discriminate against qualified individuals

with a disability who are physically or mentally disabled. The Board's

program regarding individuals with a disability in employment is fully

described in Sec. 268.303 of this part.

(e) The Board has established, maintains and carries out a

continuing affirmative program designed to promote equal opportunity

and to identify and eliminate discriminatory practices and policies. In

support of its program, the Board:

(1) Provides sufficient resources to administer its equal

opportunity program to ensure efficient and successful operation;

(2) Provides for the prompt, fair and impartial processing of

complaints in accordance with this part, and consistent with guidance

proffered by the Commission;

(3) Conducts a continuing campaign to eradicate every form of

prejudice or discrimination from the Board's personnel policies,

practices and working conditions;

(4) Communicates the Board's equal employment opportunity policy

and program, and its employment needs to all sources of job candidates

without regard to race, color, religion, sex, national origin, age, or

physical or mental disability, and solicits their recruitment

assistance on a continuing basis;

(5) Reviews, evaluates and controls managerial and supervisory

performance in such a manner as to insure a continuing affirmative

application and vigorous enforcement of the policy of equal employment

opportunity, and provides orientation, training and advice to managers

and supervisors to assure their understanding and implementation of the

Board's equal employment opportunity policy and program;

(6) Takes appropriate disciplinary action against employees who

engage in discriminatory practices;

(7) Makes reasonable accommodation to the religious needs of

employees and applicants for employment when those accommodations can

be made without undue hardship on the operations of the Board;

(8) Makes reasonable accommodation to the known physical or mental

limitations of qualified applicants and employees with disabilities

unless the accommodation would impose an undue hardship on the

operations of the Board;

(9) Reassigns, in accordance with Sec. 268.303(f) of this part,

nonprobationary employees who develop physical or mental limitations

that prevent them from performing the essential functions of their

positions even with reasonable accommodation;

(10) Provides recognition to employees, supervisors, managers and

units demonstrating superior accomplishment in equal employment

opportunity;

(11) Has established a system for periodically evaluating the

effectiveness of the Board's overall equal employment opportunity

effort;

(12) Provides the maximum feasible opportunity to employees to

enhance their skills through on-the-job training, work-study programs

and other training measures so that they may perform at their highest

potential and advance in accordance with their abilities;

(13) Informs its employees and applicants for employment of the

Board's affirmative equal opportunity policy and program, and enlists

the cooperation of Board employees and other proper persons; and

(14) Participates at the community level with other employers, with

schools and universities and with other public and private groups in

cooperative action to improve employment opportunities and community

conditions that affect employability.

(f) In order to implement its program, the Board:

(1) Develops the plans, procedures and regulations necessary to

carry out its program;

(2) Appraises its human resources management operations at regular

intervals to assure their conformity with the Board's program and this

part, consistent with guidance proffered by the Commission;

(3) Assigns equal employment opportunity responsibilities as

appropriate to the Administrative Governor and the Staff Director for

Management, and designates an EEO Programs Director, EEO Counselors, a

Federal Women's Program Manager, a Hispanic Program Coordinator and a

Disabled Persons Program Coordinator, and clerical and administrative

support, to carry out the functions of this part in all divisions and

offices at the Board;

(4) Makes written materials available to all employees and

applicants for employment informing them of the variety of equal

employment opportunity programs, and administrative and judicial

remedial procedures available to them, and prominently posts such

written materials in its human resource management and EEO offices, and

throughout the workplace;

(5) Ensures that full cooperation is provided by all Board

employees to EEO Counselors, Board equal employment opportunity

personnel and to investigators in the processing and resolution of pre-

complaint matters and complaints filed with the Board, and that

cooperation is provided to the Commission in connection with review of

Board decisions, including granting the Commission routine access to

relevant records of the Board as appropriate and consistent with

applicable law, regulations and policies of the Board; and

(6) Publicizes to all employees and posts at all times the names,

business telephone numbers and business addresses of the EEO

Counselors, a notice of the time limits and necessity of contacting an

EEO Counselor before filing a complaint, and the telephone numbers and

addresses of the Staff Director for Management, EEO Programs Director,

Federal Women's Program Manager, Hispanic Program Coordinator and

Disabled Persons Program Coordinator.

Sec. 268.203 Complaints of discrimination covered under this part.

(a) Individual and class complaints of employment discrimination

and retaliation prohibited by Sec. 268.202(a) (discrimination on the

basis of race, color, religion, sex and national origin),

Sec. 268.202(b) (discrimination on the basis of age when the aggrieved

person is at least 40 years of age), Sec. 268.303(a) (discrimination on

the basis of a disability), or Sec. 268.202(c) (sex-based wage

discrimination) of this part shall be processed in accordance with this

part. Complaints alleging retaliation prohibited under this part are

considered to be complaints of discrimination for purposes of this

part.

(b) Except as set forth in Sec. 268.304 and in subpart G of this

part, this part applies to all Board employees and applicants for

employment at the Board, and to all Board personnel policies or

practices affecting Board employees or applicants for employment at the

Board.

Sec. 268.204 Pre-complaint processing.

(a) Aggrieved persons who believe they have been discriminated

against on the basis of race, color, religion, sex, national origin,

age or disability must consult an EEO Counselor prior to filing a

complaint in order to try to informally resolve the matter.

(1) An aggrieved person must initiate contact with an EEO Counselor

within 45 days of the date of the matter alleged to be discriminatory

or, in the case of a personnel action, within 45 days of the date that

the action was communicated to the aggrieved person.

(2) The Board shall extend the 45-day time limit in paragraph

(a)(1) of this section when the individual shows that he or she was not

notified of the time limits and was not otherwise aware of them, that

he or she did not know and reasonably should not have known that the

discriminatory matter or personnel action occurred, that despite due

diligence he or she was prevented by circumstances beyond his or her

control from contacting an EEO Counselor within the time limits, or for

other reasons considered sufficient by the Board.

(b) At the initial counseling session, EEO Counselors must advise

individuals in writing of their rights and responsibilities, including

the right to request a hearing after the investigation by the Board,

the right to file a notice of intent to sue pursuant to Sec. 268.301(a)

of this part and to file a lawsuit alleging a violation of the ADEA

instead of an administrative complaint of age discrimination under this

part, the duty to mitigate damages, administrative and court time

frames, and that only the matter(s) raised in pre-complaint counseling

(or issues like or related to issues raised in pre-complaint

counseling) may be alleged in a subsequent complaint filed with the

Board. EEO Counselors must advise individuals of their duty to keep the

Board informed of their current address, to serve copies of requests

for review by the Commission on the Board, and to keep the Commission

informed of their current address in connection with any review of a

Board action. The notice required by paragraphs (d) and (e) of this

section shall include a notice of the right to file a class complaint.

If the aggrieved person informs an EEO Counselor that he or she wishes

to file a class complaint, the EEO Counselor shall explain the class

complaint procedures and the responsibilities of the agent of the

class.

(c) EEO Counselors shall conduct counseling activities in

accordance with instructions promulgated by the EEO Programs Director,

which shall be consistent with the counseling guidelines contained in

the Commission's ``EEO Management Directives For 29 CFR part 1614''.

When advised that a complaint has been filed by an aggrieved person,

the EEO Counselor shall submit a written report within 15 calendar days

to the EEO Programs Director and to the aggrieved person concerning the

issues discussed and actions taken during counseling.

(d) Unless the aggrieved person agrees to a longer counseling

period under paragraph (e) of this section, the EEO Counselor shall

conduct the final interview with the aggrieved person within 30 days of

the date the aggrieved person brought the matter to the EEO Counselor's

attention. If the matter has not been resolved, the aggrieved person

shall be informed in writing by the EEO Counselor, not later than the

30th day after contacting the EEO Counselor, of the right to file a

discrimination complaint with the Board. This notice shall inform the

complainant of the right to file a discrimination complaint within 15

calendar days of receipt of the notice, of the appropriate official

with whom to file a complaint and of the complainant's duty to assure

that the EEO Programs Director is informed immediately if the

complainant retains counsel or a representative.

(e) Prior to the end of the 30-day period, the aggrieved person may

agree in writing with the Board to postpone the final interview and

extend the counseling period for an additional period of no more than

60 days. If the matter has not been resolved before the conclusion of

the agreed extension, the notice described in paragraph (d) of this

section shall be issued.

(f) In the event the aggrieved person believes that he/she has been

discriminated against and agrees to participate in an established Board

alternative dispute resolution procedure, the pre-complaint processing

period of this section will be 90 days. If the matter has not been

resolved before the 90th day, the notice described in paragraph (d) of

this section shall then be issued.

(g) The EEO Counselor shall not attempt in any way to restrain the

aggrieved person from filing a complaint. The EEO Counselor shall not

reveal the identity of an aggrieved person who consulted the EEO

Counselor, except when authorized to do so by the aggrieved person, or

until the Board has received a discrimination complaint under this part

from that person involving the same matter.

Sec. 268.205 Individual complaints.

(a) A complaint alleging that the Board discriminated against the

complainant must be filed with the Board.

(b) A complaint must be filed within 15 calendar days of receipt of

the notice required by Secs. 268.204 (d), (e) or (f) of this part.

(c) A complaint must contain a signed statement from the person

claiming to be aggrieved or that person's attorney. This statement must

be sufficiently precise to identify the aggrieved person and to

describe generally the action(s) or practice(s) that form the basis of

the complaint. The complaint must also contain a telephone number and

address where the complainant or the complainant's representative can

be contacted.

(d) The EEO Programs Director shall acknowledge receipt of a

complaint in writing and inform the complainant of the date on which

the complaint was filed. Such acknowledgement shall also advise the

complainant that:

(1) The complainant has the right to file a request for review with

the Commission with regard to the Board's final decision or dismissal

of all or a portion of a complaint; and

(2) The Board is required to conduct a complete and fair

investigation of the complaint within 180 days of the filing of the

complaint unless the parties agree in writing to extend the period.

Sec. 268.206 Dismissals of complaints.

(a) The Board shall dismiss a complaint or a portion of a

complaint:

(1) That fails to state a claim under Secs. 268.203 and 268.205(c)

of this part, or states the same claim that is pending before or has

been decided by the Board or the Commission;

(2) That fails to comply with the applicable time limits contained

in Secs. 268.204, 268.205(b) and 268.305(b) of this part, unless the

Board extends the time limits in accordance with Sec. 268.604(c) of

this part, or that raises a matter that has not been brought to the

attention of an EEO Counselor and is not like or related to a matter

that has been brought to the attention of an EEO Counselor;

(3) That is the basis of a pending civil action in a United States

District Court in which the complainant is a party, provided that at

least 180 days have passed since the filing of the administrative

complaint, or that was the basis of a civil action decided by a United

States District Court in which the complainant was a party;

(4) That is moot or alleges that a proposal to take a personnel

action, or other preliminary step to taking a personnel action, is

discriminatory;

(5) Where the complainant cannot be located, provided that

reasonable efforts have been made to locate the complainant and the

complainant has not responded within 15 calendar days to a notice of

proposed dismissal sent to his or her last known address;

(6) Where the Board has provided the complainant with a written

request to provide relevant information or otherwise proceed with the

complaint, and the complainant has failed to respond to the request

within 15 calendar days of its receipt or the complainant's response

does not address the Board's request, provided that the request

included a notice of the proposed dismissal. Instead of dismissing for

failure to cooperate, the complaint may be adjudicated if sufficient

information for that purpose is available; or

(7) If, prior to the issuance of the notice required by

Sec. 268.207(f) of this part, the complainant refuses within 30 days of

receipt of an offer of settlement to accept the Board's offer of full

relief containing a certification from the Board's Staff Director for

Management, the General Counsel or a designee reporting directly to the

Staff Director for Management or General Counsel (after consulting with

the EEO Programs Director) that the offer constitutes full relief,

provided that the offer gave notice that failure to accept would result

in dismissal of the complaint. An offer of full relief under this

paragraph (a)(7) is the appropriate relief in Sec. 268.501 of this

part.

(b) The Board shall inform the complainant of the right to file a

request for review with the Commission with regard to the dismissal of

the individual complaint pursuant to Sec. 268.401 of this part, or to

file a civil action. A copy of EEOC Form 573, notice of Appeal/

Petition, shall be attached to the Board's decision to dismiss an

individual complaint under this section.

Sec. 268.207 Investigation of complaints.

(a) The investigation of individual complaints shall be conducted

by an investigator appointed by the EEO Programs Director.

(b) Consistent with guidance proffered by the Commission, the

Board, through the EEO Programs Director, shall develop a complete and

impartial factual record upon which to make findings on the matters

raised by the written complaint. The investigator may use an exchange

of letters or memoranda, interrogatories, investigations, fact-finding

conferences or any other fact-finding methods that efficiently and

thoroughly address the matters at issue. The EEO Programs Director may

incorporate alterative dispute resolution techniques into the

investigation in order to promote early resolution of complaints.

(c) The procedures in paragraphs (c)(1) through (4) of this section

apply to the investigation of complaints:

(1) The complainant, the Board and any employee of the Board shall

produce such documentary and testimonial evidence as the investigator

deems necessary, consistent with applicable laws, regulations and

policies of the Board.

(2) The investigator may administer oaths. Statements of witnesses

shall be made under oath or affirmation or, alteratively, by written

statement under penalty of perjury.

(3) When the complainant, or the Board or its employees, fail

without good cause shown to respond fully and in timely fashion to

requests for documents, records, comparative data, statistics,

affidavits or the attendance of witness(es), the investigator may note

in the investigative record that the Board when rendering a final

decision should, or the Commission on review may, in appropriate

circumstances:

(i) Draw an adverse inference that the requested information, or

the testimony of the requested witness, would have reflected

unfavorably on the party refusing to provide the requested information;

(ii) Consider the matters to which the requested information or

testimony pertains to be established in favor of the opposing party;

(iii) Exclude other evidence offered by the party failing to

produce the requested information or witness;

(iv) Issue a decision fully or partially in favor of the opposing

party; or

(v) Take such other actions as it deems appropriate.

(4) If documentary or testimonial evidence is needed by the

investigator, and such documentary evidence is known to be contained in

the files of another federal agency, or the testimony of an employee of

another federal agency is needed, the EEO Programs Director shall, if

necessary, contact the Commission for assistance in obtaining such

documentary or testimonial evidence.

(d) The investigation shall be conducted by an investigator with

appropriate security clearances.

(e) The Board shall complete its investigation within 180 days of

the date of the filing of an individual complaint or within the time

period contained in the determination of the Commission on review of a

dismissal pursuant to Sec. 268.206 of this part. By written agreement

within those time periods, the complainant and the Board may

voluntarily extend the time period for not more than an additional 90

days. The Board may unilaterally extend the time period or any period

of extension for not more than 30 days where it must sanitize a

complaint file that may contain confidential information of the Board

under 12 CFR part 261, or other privileged information of the Board,

provided the Board notifies the complainant of the extension.

(f) Within 180 days from the filing of the complaint, within the

time period contained in a determination of the Commission's Office of

Federal Operations on review of a dismissal, or within any period of

extension provided for in paragraph (e) of this section, the Board

shall notify the complainant that the investigation has been completed,

shall provide the complainant with a copy of the investigative file,

and shall notify the complainant that, within 30 days of the receipt of

the investigative file, the complainant has the right to request a

hearing before an administrative judge from the Commission or may

receive an immediate final decision pursuant to Sec. 268.209 of this

part from the Board. In the absence of the required notice, the

complainant may request a hearing under Sec. 268.208 of this part at

any time after 180 days has elapsed from the filing of the complaint.

Sec. 268.208 Hearings.

(a) Requests. When a complainant requests a hearing, the EEO

Programs Director shall request the Commission to appoint an

administrative judge to conduct a hearing in accordance with this

section. Any hearing will be conducted by an administrative judge or

hearing examiner with appropriate security clearances. Where the

administrative judge determines that the complainant is raising or

intends to pursue issues like or related to those raised in the

complaint, but which the Board has not had an opportunity to address,

the administrative judge shall remand any such issue for counseling in

accordance with Sec. 268.204 of this part or for such other processing

as may be ordered by the administrative judge.

(b) Discovery. The administrative judge shall notify the parties of

the right to seek discovery prior to the hearing and may issue such

discovery orders as are appropriate. Unless the parties agree in

writing concerning the methods and scope of discovery, the party

seeking discovery shall request authorization from the administrative

judge prior to commencing discovery. Both parties are entitled to

reasonable development of evidence on matters relevant to the issues

raised in the complaint, but the administrative judge may reasonably

limit the quantity and timing of discovery. Evidence may be developed

through interrogatories, depositions, and requests for admissions,

stipulations or production of documents. It shall be grounds for

objection to producing evidence that the information sought by either

party is irrelevant, overburdensome, repetitious, privileged, or that

production would be unlawful.

(c) Conduct of hearing. The Board shall provide for the attendance

at a hearing of all Board employees approved as witnesses by an

administrative judge. Attendance at hearings will be limited to persons

determined by the administrative judge to have direct knowledge

relating to the complaint. Hearings are part of the investigative

process and are thus closed to the public. The administrative judge

shall have the power to regulate the conduct of a hearing, limit the

number of witnesses where testimony would be repetitious, and exclude

any person from the hearing for contumacious conduct or misbehavior

that obstructs the hearing. The administrative judge shall receive into

evidence information or documents relevant to the complaint. Rules of

evidence shall not be applied strictly, but the administrative judge

shall exclude irrelevant or repetitious evidence. The administrative

judge or the Commission may refer to the Disciplinary Committee of the

appropriate Bar Association any attorney or, upon reasonable notice and

an opportunity to be heard, suspend or disqualify from representing

complainants or agencies in hearings raising claims of discrimination

any representative who refuses to follow the orders of an

administrative judge, or who otherwise engages in improper conduct. The

Board in such circumstances may take whatever action it deems

appropriate to suspend or disqualify any such attorney or

representative from appearing or practicing before the Board.

(d) Evidentiary procedures. The procedures in paragraphs (d) (1)

through (3) of this section apply to hearings of complaints:

(1) The complainant, the Board and any employee of the Board shall

produce such documentary and testimonial evidence as the administrative

judge deems necessary, consistent with applicable laws, regulations and

policies of the Board. If documentary or testimonial evidence is needed

for the hearing, and such documentary evidence is known to be contained

in the files of another federal agency, or if the testimony of an

employee of another federal agency is needed, then the administrative

judge may seek assistance from appropriate sources in obtaining such

documentary or testimonial evidence for the hearing.

(2) Administrative judges are authorized to administer oaths.

Statements of witnesses shall be made under oath or affirmation or,

alternatively, by written statement under penalty of perjury.

(3) When the complainant, or the Board or its employees fail

without good cause shown to respond fully and in timely fashion to

requests for documents, records, comparative data, statistics,

affidavits, or the attendance of witness(es), the administrative judge

may, in appropriate circumstances:

(i) Draw an adverse inference that the requested information, or

the testimony of the requested witness, would have reflected

unfavorably on the party refusing to provide the requested information;

(ii) Consider the matters to which the requested information or

testimony pertains to be established in favor of the opposing party;

(iii) Exclude other evidence offered by the party failing to

produce the requested information or witness;

(iv) Issue a finding fully or partially in favor of the opposing

party; or

(v) Take such other actions as appropriate.

(e) Findings and conclusions without hearing. (1) If a party

believes that some or all material facts are not in genuine dispute and

there is no genuine issue as to credibility, the party may, at least 15

calendar days prior to the date of the hearing or at such earlier time

as required by the administrative judge, file a statement with the

administrative judge prior to the hearing setting forth the fact or

facts and referring to the parts of the record relied on to support the

statement. The statement must demonstrate that there is no genuine

issue as to any such material fact. The party shall serve the statement

on the opposing party.

(2) The opposing party may file an opposition within 15 calendar

days of receipt of the statement in paragraph (e)(1) of this section.

The opposition may refer to the record in the case to rebut the

statement that a fact is not in dispute or may file an affidavit

stating that the party cannot, for reasons stated, present facts to

oppose the request. After considering the submissions, the

administrative judge may order that discovery be permitted on the fact

or facts involved, limit the hearing to the issues remaining in

dispute, issue findings and conclusions without a hearing or make such

other ruling as is appropriate.

(3) If the administrative judge determines upon his or her own

initiative that some or all facts are not in genuine dispute, he or she

may, after giving notice to the parties and providing them an

opportunity to respond in writing within 15 calendar days, issue an

order limiting the scope of the hearing or issue findings and

conclusions without holding a hearing.

(f) Record of hearing. The hearing shall be recorded and the Board

shall arrange and pay for verbatim transcripts. All documents submitted

to, and accepted by, the administrative judge at the hearing shall be

made part of the record of the hearing. If the Board submits a document

that is accepted, it shall furnish a copy of the document to the

complainant. If the complainant submits a document that is accepted,

the administrative judge shall make the document available to the

Board's representative for reproduction.

(g) Findings and conclusions. Unless the administrative judge makes

a written determination that good cause exists for extending the time

for issuing findings of fact and conclusions of law, within 180 days of

a request for a hearing being received by the Commission, an

administrative judge shall issue findings of fact and conclusions of

law on the merits of the complaint, and shall order appropriate relief

where discrimination is found with regard to the matter that gave rise

to the complaint. The administrative judge shall send copies of the

entire record, including the transcript, and the findings and

conclusions to the parties by certified mail, return receipt requested.

Within 60 days of receipt of the findings and conclusions, the Board

may reject or modify the findings and conclusions or the relief ordered

by the administrative judge and issue a final decision in accordance

with Sec. 268.209 of this part. If the Board does not, within 60 days

of receipt of the findings and conclusions, accept, reject or modify

the findings and conclusions of the administrative judge, then the

findings and conclusions of the administrative judge and the relief

ordered shall become the final decision of the Board and the Board

shall notify the complainant of the final decision in accordance with

Sec. 268.209 of this part.

Sec. 268.209 Final decisions.

(a) The EEO Programs Director shall notify the Board of Governors

when a complaint is ripe for decision under this section. At the

request of any member of the Board of Governors made within 3 business

days of such notice, the Board of Governors shall make the decision on

the complaint. If no such request is made, the Administrative Governor,

or the Staff Director for Management if he or she is delegated the

authority to do so under Sec. 268.103(a)(2) of this part, shall make

the decision on the complaint.

(b) The Board shall issue a final decision:

(1) Within 60 days of receiving notification that a complainant has

requested an immediate decision in accordance with Sec. 268.207(f) of

this part;

(2) Within 60 days of the end of the 30-day period for the

complainant to request a hearing or an immediate final decision where

the complainant has not requested either a hearing or a final decision

as provided by Sec. 268.207(f) of this part;

(3) Within 60 days of receiving the findings and conclusions of an

administrative judge under Sec. 268.208(g) of this part;

(4) Within 30 days of receiving the written recommendation of an

administrative judge to accept or reject the class complaint pursuant

to Sec. 268.305(c)(7) of this part;

(5) If it decides to vacate an agreement of resolution upon the

selection of a member of the class pursuant to Sec. 268.305(f)(4) of

this part;

(6) Within 60 days of receiving findings and recommendations of an

administrative judge following a class action hearing pursuant to the

procedures stated under Sec. 268.305(i) of this part;

(7) Within 90 days of receipt of a written claim by a class member

pursuant to Sec. 268.305(k)(3) of this part; or

(8) Within 30 days of receiving the EEOC decision pursuant to

Sec. 268.405(c) of this part.

(c) The final decision of the Board shall consist of findings by

the Board on the merits of each issue in the complaint, or following

review by the Commission, the reason or reasons for acceptance,

modification or rejection of each finding in an EEOC decision. When

discrimination is found and indicated in the final decision,

appropriate remedies and relief in accordance with subpart E of this

part will be addressed in the final decision.

(d) The final decision shall contain information regarding the

right to file a request for review with the Commission of final

decisions pursuant to paragraphs (b)(1) through (7) of this section and

the procedures for filing a request for review with the Commission, the

right to file a civil action in a United States District Court,

including the name of the proper defendant in any such lawsuit, and the

applicable time limits for reviews and lawsuits. A copy of EEOC Form

573, Notice of Appeal/Petition, shall be attached to the final decision

pursuant to paragraphs (b)(1) through (7) of this section.

Subpart C--Provisions Applicable to Particular Complaints

Sec. 268.301 Age Discrimination in Employment Act.

(a) As an alterative to filing a complaint of discrimination on the

basis of age under this part, an aggrieved person may file a civil

action in a United States District Court against the Board of

Governors. The aggrieved person must give notice of his or her intent

to file such action with the Commission, with a copy to the Board's EEO

Programs Director, not less than 30 days prior to filing such civil

action. The notice must be filed in writing with the Commission:

Federal Sector Programs, Equal Employment Opportunity Commission, 1801

L Street, NW, Washington, DC 20507, within 180 days of the occurrence

of the alleged unlawful practice.

(b) The Commission may exempt a position from the provisions of the

ADEA if the Commission establishes a maximum age requirement for the

position on the basis of a determination that age is a bona fide

occupational qualification necessary to the performance of the duties

of the position. The Board may adopt a Commission exemption for

inclusion under this section.

(c) When an aggrieved person has filed a complaint under

Sec. 268.205 or Sec. 268.305 of this part alleging age discrimination,

administrative remedies will be considered to be exhausted for purposes

of filing, a civil action:

(1) 180 days after the filing of an individual complaint if the

Board has not issued a final decision and the complainant has not filed

a request for review by the Commission, or 180 days after the filing of

a class complaint if the Board has not issued a final decision;

(2) After the issuance of a final decision under Sec. 268.209 of

this part on an individual or class complaint if the individual has not

filed a request for review with the Commission; or

(3) After the issuance of a final decision under Sec. 268.209(a)(8)

following an EEOC decision under Sec. 268.405 of this part, or 180 days

after the filing of a request for review under subpart D of this part

if the Commission has not issued an EEOC decision.

Sec. 268.302 Equal Pay Act.

(a) Any employee who believes he or she has received unequal pay

due to discrimination based on sex may seek recovery of withheld wages

by filing a complaint of discrimination under subpart B of this part,

if a complaint of individual discrimination, or under Sec. 268.305 of

this part if a class action, except that civil actions shall be filed

pursuant to paragraph (b) of this section.

(b) A complainant, agent of the class or individual class claimant

under this section may file a civil action against the Board pursuant

to Sec. 268.506 of this part in a United States District Court should

the complainant, agent of the class or individual class claimant

believe he or she has been denied equal pay.

(c) The Board shall preserve any records that are made in the

regular course of business which relate to the payment of wages, wage

rates, job evaluations, job descriptions, merit systems, seniority

systems, description of practices, or other matters which describe or

explain the basis for payment of any wage differential to employees of

the opposite sex, and which may be pertinent to the determination of

whether such differential is based on a factor other than sex. Such

records are to be kept for at least 3 years.

(d) Wages withheld in violation of Sec. 268.202(c) of this part

have the status of unpaid minimum wage or unpaid overtime compensation.

Sec. 268.303 Rehabilitation Act.

(a) General policy. The Board shall give full consideration to the

hiring, placement and advancement of qualified individuals with a

disability who are physically or mentally disabled. The Board shall be

a model employer of individuals with a disability. The Board shall not

discriminate against individuals with a disability who are physically

or mentally disabled.

(b) Reasonable accommodation. (1) The Board shall make reasonable

accommodation to the known physical or mental limitations of an

employee or applicant for employment who is a qualified individual with

a disability unless the Board can demonstrate that the accommodation

would impose an undue hardship on its operations.

(2) Reasonable accommodation may include, but shall not be limited

to:

(i) Making facilities readily accessible to and usable by

individuals with a disability; and

(ii) Job restructuring, part-time or modified work schedules,

acquisition or modification of equipment or devices, appropriate

adjustment or modification of examinations, the provision of readers

and interpreters, and other similar actions.

(3) In determining whether, pursuant to paragraph (b)(1) of this

section, an accommodation would impose an undue hardship on the

operation of the Board, factors to be considered include:

(i) The overall size of the Board's operations with respect to the

number of employees, number and type of facilities and size of budget;

(ii) The type of Board operation, including the composition and

structure of the Board's work force; and

(iii) The nature and the cost of the accommodation.

(c) Employment criteria. (1) The Board shall not make use of any

employment test or other selection criterion that screens out or tends

to screen out qualified individuals with a disability or any class of

individuals with a disability unless:

(i) The test score or other selection criterion is job-related for

the position in question and consistent with business necessity; and

(ii) There are no available alterative job-related tests that do

not screen out or tend to screen out as many individuals with a

disability.

(2) The Board shall select and administer tests concerning

employment so as to insure that, when administered to an employee or

applicant for employment who has a disability that impairs sensory,

manual, or speaking skills, the test results accurately reflect the

employee's or applicant's ability to perform the position or type of

position in question rather than reflecting the employee's or

applicant's impaired sensory, manual, or speaking skill (except where

those skills are the factors that the test purports to measure).

(d) Pre-employment inquiries. (1) Except as provided in paragraphs

(d)(2) and (3) of this section, the Board shall not conduct a pre-

employment medical examination and shall not make pre-employment

inquiry of an applicant as to whether the applicant is an individual

with a disability or as to the nature or severity of a disability. The

Board may, however, make pre-employment inquiry into an applicant's

ability to meet the essential functions of the job, or the medical

qualification requirements if applicable, with or without reasonable

accommodation, of the position in question, i.e., the minimum abilities

necessary for safe and efficient performance of the duties of the

position in question.

(2) Nothing in this section shall prohibit the Board from

conditioning an offer of employment on the results of a medical

examination conducted prior to the employee's entrance on duty,

provided that:

(i) All entering employees are subjected to such an examination

regardless of disability or when the pre-employment medical

questionnaire used for positions that do not routinely require medical

examination indicates a condition for which further examination is

required because of the job-related nature of the condition; and

(ii) The results of such an examination are used only in accordance

with the requirements of this part.

(3) Nothing in this section shall be construed to prohibit the

gathering of pre-employment medical information for the purpose of

hiring individuals with a disability.

(4) To enable and evaluate affirmative action to hire, place or

advance individuals with a disability, the Board may invite employees

and applicants for employment to indicate whether and to what extent

they are disabled, if:

(i) The Board states clearly on any written questionnaire used for

this purpose or makes clear orally if no written questionnaire is used,

that the information requested is intended for use solely in

conjunction with affirmative action; and

(ii) The Board states clearly that the information is being

requested on a voluntary basis, that refusal to provide it will not

subject the employee or applicant for employment to any adverse

treatment, and that it will be used only in accordance with this part.

(5) Information obtained in accordance with this section as to the

medical condition or history of the employee or applicant for

employment shall be kept confidential except that:

(i) Managers, selecting officials, and others involved in the

selection process or responsible for affirmative action may be informed

that the employee or applicant for employment is an individual with a

disability;

(ii) Supervisors and managers may be informed regarding necessary

accommodations;

(iii) First aid and safety personnel may be informed, where

appropriate, if the condition might require emergency treatment;

(iv) Government officials investigating compliance with laws,

regulations, and instructions relevant to equal employment opportunity

and affirmative action for individuals with a disability shall be

provided information upon request; and

(v) Statistics generated from information obtained may be used to

manage, evaluate, and report on equal employment opportunity and

affirmative action programs.

(e) Physical access to buildings. (1) The Board shall not

discriminate against employees or applicants for employment who are

qualified individuals with a disability due to the inaccessibility of

its facility.

(2) It shall be the policy of the Board to comply with the

provisions of the Rehabilitation Act, the Architectural Barriers Act of

1968 (42 U.S.C. 4151 et seq.) and the Americans With Disabilities Act

of 1990 (42 U.S.C. 12183 and 12204).

(f) Reassignment. When a nonprobationary employee becomes unable to

perform the essential functions of his or her position even with

reasonable accommodation due to a disability, the Board shall offer to

reassign the individual to a funded vacant position at the same grade

level, the essential functions of which the employee would be able to

perform with reasonable accommodation if necessary unless the

reassignment would impose an undue hardship on the operation of the

Board. In the absence of a position at the same grade level, an offer

of reassignment to a vacant position at the highest available grade

level below the employee's current grade level shall be made, but

availability of such a vacancy shall not affect the employee's

entitlement, if any, to disability retirement pursuant to any

retirement plan in which the employee is enrolled. If the Board has

already posted a notice or announcement seeking applications for a

specific vacant position at the time the Board has determined that the

nonprobationary employee is unable to perform the essential functions

of his or her position even with reasonable accommodation, then the

Board does not have an obligation under this section to offer to

reassign the individual to that position, but the Board shall consider

the individual on an equal basis with those who applied for the

position.

(g) Exclusion from definition of ``individual with a disability''--

(1) Illegal use of drugs. (i) The term ``individual with a disability''

shall not include an individual who is currently engaging in the

illegal use of drugs, when the Board acts on the basis of such use. The

term ``drug'' means a controlled substance, as defined in Schedules I

through V of Section 202 of the Controlled Substances Act (21 U.S.C.

812). The term ``illegal use of drugs'' means the use of drugs, the

possession or distribution of which is unlawful under the Controlled

Substances Act, but does not include the use of a drug taken under

supervision by a licensed health care professional, or other uses

authorized by the Controlled Substances Act or other provisions of

federal law. This exclusion, however, does not exclude an individual

with a disability who:

(A) Has successfully completed a supervised drug rehabilitation

program and is no longer engaging in the illegal use of drugs, or has

otherwise been rehabilitated successfully and is no longer engaging in

such use;

(B) Is participating in a supervised rehabilitation program and is

no longer engaging in such use; or

(C) Is erroneously regarded as engaging in such use, but is not

engaging in such use.

(ii) Except that the Board may adopt and administer reasonable

policies or procedures, including but not limited to drug testing,

designed to ensure that an individual described in paragraphs (g)(1)(i)

(A) and (B) of this section is no longer engaging in the illegal use of

drugs.

(2) Alcoholism. The term ``individual with a disability'' does not

include an employee who is an alcoholic whose current use of alcohol

prevents the employee from performing the duties of his or her job, or

whose employment by reason of such current alcohol use, would

constitute a direct threat to the property or safety of others. In this

regard, alcoholics shall meet the same performance and conduct

standards to which all other Board employees must satisfy, even if an

unsatisfactory performance is related to the alcoholism of the

employee.

(3) Infectious and communicable diseases. If an individual with a

disability has one of the listed diseases as determined by the

Secretary of Health and Human Services under the Americans with

Disabilities Act (42 U.S.C. 12113(d)(1)) and works in or applies for a

position at the Board in food handling, the Board will seek reasonable

accommodation under paragraph (b) of this section to eliminate the risk

of transmitting the disease through the handling of food. If the

individual with a disability is a nonprobationary employee and a

reasonable accommodation cannot be made, the provisions contained in

paragraph (f) of this section shall apply.

Sec. 268.304 Employment of noncitizens.

(a) Definitions. The definitions contained in this paragraph (a)

shall apply only to this section.

(1) Intending citizen means a citizen or national of the United

States, or a noncitizen who:

(i) Is a protected individual as defined in 8 U.S.C. 1324b(a)(3);

and

(ii) Has evidenced an intention to become a United States citizen.

(2) Noncitizen means any person who is not a citizen of the United

States.

(3) Sensitive information means:

(i) (A) Information that is classified for national security

purposes under Executive Order No. 10450 (3 CFR, 1949-1953 Comp., p.

936), including any amendments or superseding orders that the President

of the United States may issue from time to time;

(B) Information that consists of confidential supervisory

information of the Board, as defined in 12 CFR 261.2(b); or

(C) Information the disclosure or premature disclosure of which to

unauthorized persons may be reasonably likely to impair the formulation

or implementation of monetary policy, or cause unnecessary or

unwarranted disturbances in securities or other financial markets, such

that access to such information must be limited to persons who are

loyal to the United States.

(ii) For purposes of paragraph (a)(3)(i)(C) of this section,

information may not be deemed sensitive information merely because it

would be exempt from disclosure under the Freedom of Information Act (5

U.S.C. 552) but sensitive information must be information the

unauthorized disclosure or premature disclosure of which may be

reasonably likely to impair important functions or operations of the

Board.

(4) Sensitive position means any position of employment in which

the employee will be required to have access to sensitive information.

(b) Prohibitions--(1) Unauthorized aliens. The Board shall not hire

any person unless that person is able to satisfy the requirements of

Section 101 of the Immigration Reform and Control Act of 1986.

(2) Employment in sensitive positions. The Board shall not hire any

person to a sensitive position unless such person is a citizen of the

United States or, if a noncitizen, is an intending citizen.

(3) Preference. Consistent with the Immigration Reform and Control

Act of 1986, and other applicable law, applicants for employment at the

Board who are citizens of the United States shall be preferred over

equally qualified applicants who are not United States citizens.

(c) Exception. The prohibition of paragraph (b)(2) of this section

does not apply to hiring for positions for which a security clearance

is required under Executive Order No. 10450, including any subsequent

amendments or superseding orders that the President of the United

States may issue from time to time, where the noncitizen either has or

can obtain the necessary security clearance. Any offer of employment

authorized by this paragraph (c) shall be contingent upon receipt of

the required security clearance in the manner prescribed by law.

(d) Applicability. This section applies to employment in all

positions at the Board and to employment by Federal Reserve Banks of

examiners who must be appointed, or selected and approved by the Board

pursuant to 12 U.S.C. 325, 326, 338, or 625.

Sec. 268.305 Class complaints.

(a) Pre-complaint processing. An employee or applicant for

employment who wishes to file a class complaint must seek counseling

and be counseled in accordance with the procedures under Sec. 268.204

of this part.

(b) Filing and presentation of a class complaint. (1) A class

complaint must be signed by the agent of the class or representative,

and must identify the personnel policy or practice adversely affecting

the class as well as the specific action or matter affecting the agent

of the class.

(2) The complaint must be filed with the Board not later than 15

calendar days after the agent of the class receives a notice from the

EEO Counselor of the right to file a class complaint.

(3) The complaint shall be processed promptly by the Board, and the

parties shall cooperate and shall proceed at all times without undue

delay.

(c) Acceptance or dismissal. (1) Within 30 days of the Board's

receipt of a class complaint, the Board shall designate a

representative who shall monitor the class complaint on behalf of the

Board and who shall be one of the individuals referenced in

Sec. 268.202(e)(3) of this part, and forward the class complaint, along

with a copy of the EEO Counselor's report and any other information

pertaining to timeliness or other relevant circumstances related to the

class complaint, to the Commission's Office of Federal Operations. The

Commission shall assign the class complaint to an administrative judge

or complaints examiner who shall, if required, have a proper security

clearance. The administrative judge may require the agent of the class

or the Board to submit additional information relevant to the

complaint.

(2) The administrative judge may recommend that the Board dismiss

the class complaint, or any portion, for any of the reasons listed in

Sec. 268.206 of this part, or because it does not meet the

prerequisites of a class complaint under Sec. 268.102(g) of this part.

(3) If an allegation of discrimination in the class complaint is

not included in the EEO Counselor's report, the administrative judge

shall afford the agent of the class 15 calendar days to state whether

the matter was discussed with the EEO Counselor and, if not, explain

why it was not discussed. If the explanation is not satisfactory, the

administrative judge shall recommend that the Board dismiss the

allegation under Sec. 268.206 of this part. If the explanation is

satisfactory, the administrative judge shall refer the allegation to

the Board for further counseling by an EEO Counselor with the agent of

the class. After counseling, the allegation shall be consolidated with

the class complaint.

(4) If an allegation of discrimination in the class complaint lacks

specificity and detail, the administrative judge shall afford the agent

of the class 15 calendar days to provide specific and detailed

information. The administrative judge shall recommend that the Board

dismiss the class complaint if the agent of the class fails to provide

such information within the specified time period. If the information

provided contains new allegations outside the scope of the complaint,

the administrative judge shall advise the agent of the class how to

proceed on an individual or class basis concerning these allegations.

(5) The administrative judge shall recommend that the Board extend

the time limits for filing a class complaint and for consulting with an

EEO Counselor in accordance with the time limit extension provisions

contained in Secs. 268.204(a)(2) and 268.604 of this part.

(6) When appropriate, the administrative judge may recommend that a

class be divided into subclasses and that each subclass be treated as a

class, and the provisions of this section shall then be construed and

applied accordingly.

(7) The administrative judge's written recommendation to the Board

on whether to accept or dismiss a class complaint and the complaint

file shall be transmitted to the Board, and notification of that

transmittal shall be sent to the agent of the class. The administrative

judge's recommendation to accept or dismiss shall become the Board's

decision unless the Board accepts, rejects or modifies the recommended

decision within 30 days of the receipt of the recommended decision and

complaint file pursuant to Sec. 268.209 of this part. The Board shall

notify the agent of the class by certified mail, return receipt

requested, and the administrative judge of its decision to accept or

dismiss a class complaint. At the same time, the Board shall forward to

the agent of the class copies of the administrative judge's

recommendation and the complaint file. The dismissal of a class

complaint shall inform the agent of the class either that the class

complaint is being filed on that date as an individual complaint of

discrimination and will be processed under subpart B of this part, or

that the class complaint is also dismissed as an individual complaint

in accordance with Sec. 268.206 of this part. In addition, it shall

inform the agent of the class of the right to file a request for review

of the dismissal of the class complaint with the Commission pursuant to

Sec. 268.401 of this part, or to file a civil action. A copy of EEOC

Form 573, notice of Appeal/Petition, shall be attached to the Board's

decision to dismiss a class complaint pursuant to Sec. 268.209(b)(4) of

this part.

(d) Notification. (1) Within 15 calendar days of accepting a class

complaint, the Board shall use reasonable means, such as delivery,

mailing to last known address or distribution, to notify all class

members of the acceptance of the class complaint.

(2) Such notice shall contain:

(i) The date of acceptance of the class complaint by the Board;

(ii) A description of the issues accepted as part of the class

complaint;

(iii) An explanation of the binding nature of the Board's

dismissal, final decision or resolution of the class complaint on class

members; and

(iv) The name, address and telephone number of the agent of the

class or, if represented, the representative.

(e) Obtaining evidence concerning the complaint. (1) Upon the

acceptance of a class complaint by the Board, the administrative judge

shall notify the agent of the class and the Board's representative of

the time period that will be allowed both parties to prepare their

case. This time period will include at least 60 days and may be

extended by the administrative judge upon the request of either party.

Both parties are entitled to reasonable development of evidence on

matters relevant to the issues raised in the class complaint. Evidence

may be developed through interrogatories, depositions, and requests for

admissions, stipulations or production of documents. It shall be

grounds for objection to producing evidence that the information sought

by either party is irrelevant, overburdensome, repetitious, privileged,

or that production would be unlawful.

(2) If mutual cooperation fails, either party may request the

administrative judge to rule on a request to develop evidence. If a

party fails without good cause shown to respond fully and in timely

fashion to a request made or approved by the administrative judge for

documents, records, comparative data, statistics or affidavits, and the

information is solely in the control of one party, such failure may, in

appropriate circumstances, cause the administrative judge:

(i) To draw an adverse inference that the requested information

would have reflected unfavorably on the party refusing to provide the

requested information;

(ii) To consider the matters to which the requested information

pertains to be established in favor of the opposing party;

(iii) To exclude other evidence offered by the party failing to

produce the requested information;

(iv) To recommend that a decision be entered in favor of the

opposing party; or

(v) To take such other actions as the administrative judge deems

appropriate.

(3) During the period for development of evidence, the

administrative judge may, in his or her discretion, direct that an

investigation of facts relevant to the class complaint or any portion

be conducted.

(4) Both parties shall furnish to the administrative judge copies

of all materials that they wish to be examined and such other material

as may be requested.

(f) Opportunity for resolution of the class complaint. (1) The

administrative judge shall furnish the agent of the class and the

Board's representative a copy of all materials obtained concerning the

class complaint and provide opportunity for the agent of the class to

discuss the materials with the Board's representative and to attempt

resolution of the class complaint.

(2) The class complaint may be resolved by agreement of the Board

and the agent of the class at any time as long as the agreement is fair

and reasonable.

(3) If the class complaint is resolved, the terms of the resolution

shall be reduced to writing and signed by the agent of the class and

the Board.

(4) Notice of the agreement of resolution shall be given to all

class members in the same manner as notification of the acceptance of

the class complaint and shall state the relief, if any, to be granted

by the Board. An agreement of resolution shall bind all members of the

class. Within 30 days of the date of the notice of the agreement of

resolution, any member of the class may petition the Commission to

vacate the agreement of resolution because it benefits only the agent

of the class or is otherwise not fair and reasonable. Such a petition

will be processed in accordance with paragraph (c) of this section and

if the administrative judge finds that the agreement of resolution is

not fair and reasonable, he or she shall recommend that the agreement

of resolution be vacated and that the original agent of the class be

replaced by the petitioner or some other class member who is eligible

to be the agent of the class during further processing of the class

complaint. The Board may determine, with respect to the petition, that

the agreement of resolution is not fair and reasonable, which vacates

any agreement between the former agent of the class and the Board. The

Board's decision to vacate the agreement of resolution shall be

communicated to the former agent of the class and to the petitioner,

and shall inform them of their right to file a request for review with

the Commission under Sec. 268.401 of this part. A copy of EEOC Form

573, notice of Appeal/Petition, shall be attached to the Board's

decision pursuant to Sec. 268.209(b)(5) of this part.

(g) Hearing. On expiration of the period allowed for preparation of

the case, the administrative judge shall set a date for a hearing. The

hearing shall be conducted in accordance with Secs. 268.208(a) through

(f) of this part.

(h) Report of findings and recommendations. (1) The administrative

judge shall transmit to the Board a report of findings and

recommendations on the class complaint, including a recommended

decision, systemic relief for the class and any individual relief,

where appropriate, with regard to the personnel policy or practice that

gave rise to the class complaint.

(2) If the administrative judge finds no class relief appropriate,

he or she shall determine if a finding of individual discrimination is

warranted and, if so, shall recommend appropriate relief.

(3) The administrative judge shall notify the Board of the date on

which the report of findings and recommendations was forwarded to the

Board.

(i) Board decision. (1) Within 60 days of receipt of the report of

findings and recommendations issued under Sec. 268.305(h) of this part,

the Board shall issue a final decision pursuant to Sec. 268.209 of this

part, which shall accept, reject, or modify the findings and

recommendations of the administrative judge.

(2) The final decision of the Board shall be in writing and shall

be transmitted to the agent of the class by certified mail, return

receipt requested, along with a copy of the report of findings and

recommendations of the administrative judge.

(3) When the Board's final decision is to reject or modify the

findings and recommendations of the administrative judge, the Board's

final decision shall contain specific reasons for the Board's final

decision.

(4) If the Board has not issued a final decision within 60 days of

its receipt of the administrative judge's report of findings and

recommendations, those findings and recommendations of the

administrative judge shall become the Board's final decision. The Board

shall transmit the final decision to the agent of the class within 5

calendar days of the expiration of the 60-day period.

(5) The final decision of the Board shall require any relief

authorized by law and determined to be necessary or desirable to

resolve the issue of discrimination.

(6) The final decision of the Board shall, subject to subpart E of

this part, be binding on all members of the class and the Board.

(7) The final decision shall inform the class agent of the right to

seek review by the Commission, or to file a civil action, in accordance

with subpart E of this part, and of the applicable time limits.

(j) Notification of decision. The Board shall notify class members

of the Board's final decision and relief awarded, if any, through the

same media employed to give notice of the existence of the class

complaint. The notice, where appropriate, shall include information

concerning the rights of class members to seek individual relief, and

of the procedures to be followed. Notice shall be given by the Board

within 10 calendar days of the transmittal of the final decision to the

agent of the class.

(k) Relief for individual class members. (1) When the Board finds

class discrimination, the Board shall eliminate or modify the personnel

policy or practice out of which the complaint arose and provide

individual relief, including an award of attorney's fees and costs, to

the agent of the class in accordance with Sec. 268.501(e) of this part.

(2) When class-wide discrimination is not found, but it is found

that the agent of the class is a victim of discrimination, Sec. 268.501

of this part shall apply. The Board shall also, within 60 days of the

issuance of its final decision finding no class-wide discrimination,

issue the acknowledgement of receipt of an individual complaint as

required by Sec. 268.205(d) of this part and process in accordance with

the provisions of subpart B of this part, each individual complaint

that was subsumed into the class complaint.

(3) When class-wide discrimination is found in a final decision of

the Board, and a class member believes that he or she is entitled to

individual relief, the class member may file a written claim with the

Board's EEO Programs Director within 30 days of receipt of notification

by the Board of its final decision. The claim must include a specific,

detailed showing that the claimant is a class member who was affected

by a personnel action or matter resulting from the discriminatory

personnel policy or practice, and that this discriminatory action took

place within the period of time for which the Board found class-wide

discrimination in its final decision. The period of time for which the

Board finds class-wide discrimination shall begin not more than 45 days

prior to the initial contact by the agent of the class with the EEO

Counselor and shall end not later than the date when the Board

eliminates the personnel policy or practice found to be discriminatory

in the Board's final decision. The Board shall issue a final decision

on each such claim within 90 days of filing. Such decision must include

a notice of the right to file a request for review with the Commission

or a civil action in accordance with subpart E of this part and the

applicable time limits. A copy of EEOC Form 573, notice of Appeal/

Petition, shall be attached to the Board's decision pursuant to

Sec. 268.209(b)(7) of this part.

Subpart D--Review by the Equal Employment Opportunity Commission

Sec. 268.401 Review by the Equal Employment Opportunity Commission.

(a) An individual complainant may file a request for review with

the Commission of a final decision issued by the Board under

Sec. 268.209 of this part, or a dismissal by the Board of all or a

portion of an individual complaint under Sec. 268.206 of this part.

(b) An agent of the class may file a request for review with the

Commission of a dismissal of all or a portion of a class complaint

rendered by the Board under Sec. 268.305(c) of this part, or a final

decision of the Board accepting or rejecting all or a portion of a

report of findings and recommendations of an administrative judge with

regard to a class complaint pursuant to Sec. 268.305(i) of this part. A

class member may file a request for review with the Commission of a

final decision by the Board on a claim for individual relief under a

class complaint pursuant to Sec. 268.305(k) of this part. Both an agent

of the class and a class member may file a request for review with the

Commission of a final decision of the Board on a petition pursuant to

Sec. 268.305(f)(4) of this part.

(c) A complainant, agent of the class or individual class claimant

may file a request for review with the Commission of the Board's

alleged noncompliance with a settlement agreement or final decision in

accordance with Sec. 268.504 of this part.

Sec. 268.402 Time limits for review by the Equal Employment

Opportunity Commission.

(a) Any dismissal of a complaint or a portion of a complaint, or

any final decision of the Board, as set forth in paragraphs (b)(1)

through (7) of Sec. 268.209 of this part, may be reviewed by the

Commission if a request for review is filed with the Commission within

30 days of the complainant's receipt of the dismissal or final

decision. In the case of class complaints, any final decision of the

Board received by an agent of the class, petitioner or any individual

class claimant may be reviewed by the Commission if a request for

review is filed with the Commission within 30 days of its receipt.

Where a complainant has notified the EEO Programs Director of alleged

noncompliance with a settlement agreement in accordance with

Sec. 268.504 of this part, the complainant may file a request for

review with the Commission within 35 days after notification to the EEO

Programs Director under Sec. 268.504(a) of this part of such

noncompliance, but the complainant must file a request for review

within 30 days of receipt of the Board's determination.

(b) If the complainant is represented by an attorney of record,

then the 30 day time period provided in paragraph (a) of this section

within which to file a request for review shall be calculated from the

receipt of the notification required under Sec. 268.504(a) of this part

by the attorney. In all other instances, the time within which to file

a request for review with the Commission shall be calculated from the

receipt of the notification required under Sec. 268.504(a) of this part

by the complainant.

Sec. 268.403 How to seek review.

(a) The complainant must file a request for review with the

Commission by sending EEOC Form 573, notice of Appeal/Petition, to the

Director, Office of Federal Operations, Equal Employment Opportunity

Commission, P.O. Box 19848, Washington, DC 20036, or by personal

delivery or facsimile. The complainant should indicate what matters he

or she is requesting the Commission to review.

(b) The complainant shall furnish a copy of the request for review

to the Board's EEO Programs Director at the same time that he or she

files the request for review with the Commission. In or attached to the

request for review by the Commission, the complainant must certify the

date and method by which service was made on the Board.

(c) If a complainant does not file a request for review with the

Commission within the time limits of this subpart D, the request for

review shall be untimely and shall be dismissed by the Commission.

(d) Any statement or brief in support of the request for review

must be submitted to the Director, Office of Federal Operations, Equal

Employment Opportunity Commission, and to the Board within 30 days of

the filing of the request for review. Following receipt of the request

for review, and any brief in support of the request for review, the

Director, Office of Federal Operations, Equal Employment Opportunity

Commission, shall request the complaint file from the Board. The Board

shall submit the complaint file and any Board statement or brief in

opposition to the request for review to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, within 30 days of

receipt of the Commission's request for the complaint file. A copy of

the Board's statement or brief shall be served on the complainant at

the same time.

Sec. 268.404 Procedure on review.

(a) The Commission's Office of Federal Operations shall review the

complaint file and all written statements and briefs from either party.

The Commission may supplement the record by an exchange of letters or

memoranda, investigation, remand to the Board or other procedures.

(b) If the Commission's Office of Federal Operations requests

information from one or both of the parties to supplement the record,

each party providing information shall send a copy of the information

submitted to the Commission to the other party.

Sec. 268.405 Decisions on review.

(a) The Commission's Office of Federal Operations shall issue a

written decision (the EEOC decision) setting forth its reasons for the

decision. The Commission shall dismiss requests for review in

accordance with Secs. 268.206, 268.403(c) and 268.507 of this part. The

EEOC decision shall be based on the preponderance of the evidence. If

the EEOC decision contains a finding of discrimination, appropriate

remedy(ies) shall be included and, where appropriate, the entitlement

to interest, attorney's fees or costs shall be indicated. The EEOC

decision shall reflect the date of its issuance, inform the complainant

of his or her civil action rights, and be transmitted to the

complainant and to the Board by certified mail, return receipt

requested.

(b) The EEOC decision issued under paragraph (a) of this section is

final, subject to paragraph (c) of this section, within the meaning of

Sec. 268.406(d) of this part unless:

(1) Either party files a timely request for reconsideration

pursuant to Sec. 268.406 of this part; or

(2) The Commission on its own motion reconsiders the case.

(c) The Board, within 30 days of receiving the EEOC decision, shall

issue final decision pursuant to Sec. 268.209 of this part based upon

the EEOC decision.

Sec. 268.406 Reconsideration.

(a) Within a reasonable period of time, the Commission may, in its

discretion, reconsider an EEOC decision issued under Sec. 268.405(a) of

this part, notwithstanding any other provisions of this part.

(b) A party may request reconsideration of an EEOC decision issued

under Sec. 268.405(a) of this part provided that such request is made

within 30 days of receipt of an EEOC decision or within 20 days of

receipt of another party's timely request for reconsideration. Such

request, along with any supporting statement or brief, shall be

submitted to the Commission's Office of Review and Appeals, and to all

parties with proof of such submission. All other parties shall have 20

days from the date of service in which to submit to all other parties,

with proof of submission, any statement or brief in opposition to the

request.

(c) The request for reconsideration or the statement or brief in

support of the request shall contain arguments or evidence which tend

to establish that:

(1) New and material evidence is available that was not readily

available when the EEOC decision was issued;

(2) The EEOC decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy;

or

(3) The EEOC decision is of such exceptional nature as to have

substantial precedential implications.

(d) A decision on a request for reconsideration by either party is

final and there shall be no further right by either party to request

reconsideration of an EEOC decision.

Subpart E--Remedies, Enforcement and Civil Actions

Sec. 268.501 Remedies and relief.

(a) General procedures. When the Board finds discrimination when

issuing its final decision pursuant to Sec. 268.209 of this part, the

Board shall consider the following elements in providing full relief to

complainants:

(1) Notification to all employees of the Board of their right to be

free of unlawful discrimination and assurance that the particular types

of discrimination found will not recur;

(2) Commitment that corrective, curative or preventive action will

be taken, or measures adopted, to ensure that violations of law and

this part similar to those found unlawful will not recur;

(3) An unconditional offer to each identified victim of

discrimination of placement in the position the person would have

occupied but for the discrimination suffered by that person, or a

substantially equivalent position;

(4) Payment to each identified victim of discrimination on a make

whole basis for any loss of earnings the person may have suffered as a

result of the discrimination; and

(5) Commitment that the Board shall cease from engaging in the

specific unlawful employment practice found in the case.

(b) Relief for an applicant. (1) (i) When it is determined in a

final decision that an applicant for employment has been discriminated

against, the Board shall offer the applicant for employment the

position that the applicant for employment would have occupied absent

discrimination or, if justified by the circumstances, a substantially

equivalent position unless clear and convincing evidence indicates that

the applicant for employment would not have been selected even absent

the discrimination. The offer to the applicant for employment shall be

made in writing. The applicant for employment shall have 15 days from

receipt of the offer within which to accept or decline the offer.

Failure to accept the offer within the 15-day period will be considered

a declination of the offer, unless the applicant for employment can

show that circumstances beyond his or her control prevented a response

within the time limit.

(ii) If the offer is accepted, appointment shall be retroactive to

the date the applicant for employment would have been hired. Back pay,

computed in the manner prescribed in 5 CFR 550.805 shall be awarded

from the date the applicant for employment would have entered on duty

until the date the applicant for employment actually enters on duty

unless clear and convincing evidence indicates that the applicant would

not have been selected even absent discrimination. Interest on back pay

shall be included in the back pay computation where sovereign immunity

has been waived. An applicant for employment shall be deemed to have

performed service at the Board during such period for all purposes

except for meeting service requirements for completion of a required

probationary period.

(iii) If the offer of employment is declined, the Board shall award

the applicant for employment a sum equal to the back pay he or she

would have received, computed in the manner prescribed in 5 CFR 550.805

from the date he or she would have been appointed until the date the

offer was declined, subject to the limitation of paragraph (b)(3) of

this section. Interest on back pay shall be included in the back pay

computation. The Board shall inform the applicant for employment, in

its offer of employment, of the right to this award in the event the

offer of employment is declined.

(2) When it is determined in a final decision that discrimination

existed at the time the applicant for employment was considered for

employment but also by clear and convincing evidence that the applicant

would not have been hired even absent discrimination, the Board shall

nevertheless take all steps necessary to eliminate the discriminatory

practice and ensure it does not recur.

(3) Back pay under this paragraph (b) for complaints under Title

VII or the Rehabilitation Act may not extend from a date earlier than

two years prior to the date on which the complaint was initially filed

by the applicant for employment.

(c) Relief for an employee. When it is determined in a final

decision that an employee of the Board was discriminated against, the

Board shall provide relief, which shall include, but need not be

limited to, one or more of the following actions:

(1) Nondiscriminatory placement, with back pay computed in the

manner prescribed in 5 CFR 550.805 unless clear and convincing evidence

contained in the record demonstrates that the personnel action would

have been taken even absent the discrimination. Interest on back pay

shall be included in the back pay computation where sovereign immunity

has been waived. The back pay liability under Title VII or the

Rehabilitation Act is limited to the two years prior to the date the

discrimination complaint was filed;

(2) If clear and convincing evidence indicates that, although

discrimination existed at the time the personnel action was taken, the

personnel action would have been taken even absent discrimination, the

Board shall nevertheless eliminate any discriminatory practice and

ensure it does not recur;

(3) Cancellation of an unwarranted personnel action and restoration

of the employee;

(4) Expunction from the Board's records of any adverse materials

relating to the discriminatory practice; and

(5) Full opportunity to participate in the employee benefit denied

(e.g., training, preferential work assignments, overtime scheduling).

(d) Mitigation of damages. The Board shall not decline to grant

relief based upon failure to mitigate damages unless it has clear and

convincing evidence that the employee or applicant for employment has

failed to mitigate damages. The Board shall have the burden of proving

by a preponderance of the evidence that the complainant has failed to

mitigate his or her damages.

(e) Attorney's fees or costs--(1) Awards of attorney's fees or

costs. The provisions of this paragraph (e) relating to the award of

attorney's fees or costs shall apply to allegations of discrimination

prohibited by Title VII and the Rehabilitation Act. In a notice of

final action or a decision, the employee or applicant for employment

may be awarded reasonable attorney's fees or costs (including expert

witness fees) incurred in the processing of the complaint. In this

regard:

(i) A finding of discrimination raises a presumption of entitlement

to an award of attorney's fees;

(ii) Attorney's fees are allowable only for the services of members

of the Bar and law clerks, paralegals or law students under the

supervision of members of the Bar, except that no award is allowable

for the services of any employee of the Federal Government; and

(iii) Attorney's fees shall be paid only for services performed

after the filing of a written complaint and after the complainant has

notified the Board that he or she is represented by an attorney, except

that fees allowable for a reasonable period of time prior to the

notification of representation for any services performed in reaching a

determination to represent the complainant. Written submissions to the

Board that are signed by the representative shall be deemed to

constitute notice of representation.

(2) Amount of awards. (i) When the attorney's fees or costs are

awarded, the complainant's attorney shall submit a verified statement

of costs and attorney's fees (including expert witness fees), as

appropriate, to the Board within 30 days of receipt of the final

decision, unless a request for review or reconsideration is filed. A

statement of attorney's fees shall be accompanied by an affidavit

executed by the attorney of record itemizing the attorney's charges for

legal services and both the verified statement and the accompanying

affidavit shall be made a part of the complaint file. The amount of

attorney's fees or costs to be awarded the complainant shall be

determined by agreement among the complainant, the complainant's

representative and the Board. Such agreement shall immediately be

reduced to writing.

(ii) (A) If the complainant, the complainant's representative and

the Board cannot reach an agreement on the amount of attorney's fees or

costs within 20 days of the Board's receipt of the verified statement

and accompanying affidavit, the Board shall issue a decision

determining the amount of attorney's fees or costs due within 30 days

of receipt of the statement and affidavit. The decision of the Board

shall include the specific reasons for determining the amount of the

award. The complainant or the complainant's representative may file a

request for review with the Commission of the Board's decision, and the

Board's notice to the complainant and his or her representative shall

include EEOC Form 573, notice of Appeal/Petition.

(B) The amount of attorney's fees shall be calculated in accordance

with existing case law using the following standards: The starting

point shall be the number of hours reasonably expended multiplied by a

reasonable hourly rate. This amount may be reduced or increased in

consideration of the following factors, although ordinarily many of

these factors are subsumed within the calculation set forth in this

paragraph (e)(2)(ii)(B): The time and labor required, the novelty and

difficulty of the questions, the skill requisite to perform the legal

service properly, the attorney's preclusion from other employment due

to acceptance of the case, the customary fee, whether the fee is fixed

or contingent, time limitations imposed by the client or the

circumstances, the amount involved and the results obtained, the

experience, reputation, and ability of the attorney, the undesirability

of the case, the nature and length of the professional relationship

with the client, and the awards in similar cases. Only in cases of

exceptional success should any of these factors be used to enhance an

award computed by the formula set forth in this paragraph

(e)(2)(ii)(B).

(C) The costs that may be awarded are those authorized by 28 U.S.C.

1920 to include: Fees of the reporter for all or any of the

stenographic transcript necessarily obtained for use in the case; fees

and disbursements for printing and witnesses; and fees for

exemplification and copies necessarily obtained for use in the case.

(iii) Witness fees shall be awarded in accordance with the

provisions of 28 U.S.C. 1821, except that no award shall be made for a

federal employee who is in a duty status when made available as a

witness.

Sec. 268.502 Compliance with EEOC decisions.

(a) The relief ordered in an EEOC decision, if accepted pursuant to

Sec. 268.209 of this part as a final decision, or not acted upon by the

Board within the time periods of Sec. 268.209 of this part, shall be

binding upon the Board. Failure to implement its final decision, or the

EEOC decision in such circumstances, shall be grounds for the

complainant to file a civil action under Secs. 268.505 and 268.506 of

this part.

(b) Notwithstanding paragraph (a) of this section, when the Board

requests reconsideration, when the case involves an employee's removal,

separation, or suspension continuing beyond the date of the request for

reconsideration, and when the EEOC decision recommends retroactive

restoration, the Board shall comply with the EEOC decision only to the

extent of the temporary or conditional restoration of the employee to

duty status in the position recommended by the Commission, pending the

outcome of the Board's request for reconsideration.

(1) Service under the temporary or conditional restoration

provisions of this paragraph (b) shall be credited toward the

completion of a probationary or trial period, or eligibility for a

within-grade increase, if the EEOC decision is upheld.

(2) The Board shall notify the Commission and the employee in

writing, at the same time it requests reconsideration, that the relief

it provides is temporary or conditional.

(c) Relief shall be provided in full no later than 60 days after

all administrative proceedings have ended.

Sec. 268.503 Enforcement of EEOC decisions.

(a) Petition for enforcement. As set forth in this section, a

complainant may petition the Commission for enforcement of an EEOC

decision issued under the review process of this part. The petition

shall be submitted to the Office of Federal Operations, Equal

Employment Opportunity Commission. The petition shall specifically set

forth the reasons that lead the complainant to believe that the Board

is not complying with the EEOC decision.

(b) Compliance. The Commission's Office of Federal Operations may

take appropriate action to ascertain whether the Board should have

adopted the EEOC decision pursuant to Sec. 268.209 of this part. If the

Commission determines that the Board has failed to comply with the EEOC

decision in full, the Commission may undertake the efforts set forth in

paragraphs (c) and (d) of this section to obtain compliance by the

Board.

(c) Clarification. The Commission's Office of Federal Operations

may, on its own motion or in response to the petition for enforcement

or in connection with a timely request for reconsideration, issue a

clarification of an EEOC decision. A clarification may not change the

result of a prior EEOC decision or enlarge or diminish the relief

contained in the EEOC decision, but it may further explain the meaning

or intent of the EEOC decision. The Commission may also send a notice

to the Board seeking an explanation why the Board failed to adopt the

EEOC decision as its final decision under Sec. 268.209 of this part,

and the Board shall respond to such request within 30 days of receipt

of the notice addressing the issue raised by the Commission.

(d) Notification to complainant of completion of administrative

efforts. Where the Commission has determined that the Board has failed

to adopt the EEOC decision as its final decision, the Commission may

notify the complainant who has petitioned the Commission under

paragraph (a) of this section of his or her right to file a civil

action under Sec. 268.505 of this part for failure of the Board to

adopt the EEOC decision as its final decision.

Sec. 268.504 Compliance with settlement agreements and final

decisions.

(a) Any settlement agreement knowingly and voluntarily agreed to by

the Board and a complainant, reached at any stage of the complaint

process, shall be binding on both parties. A final decision of the

Board that has not been the subject of review by the Commission, or in

a civil action, shall nonetheless be binding on the Board. If the

complainant believes that the Board has failed to comply with the terms

of a settlement agreement or a final decision, the complainant shall

notify the EEO Programs Director, in writing, of the alleged

noncompliance within 30 days of when the complainant knew or should

have known of the alleged noncompliance. The complainant may request

that the Board implement the terms of the settlement agreement or final

decision or alteratively, that the complaint be reinstated for further

processing from the point processing ceased.

(b) The Board shall attempt to resolve the matter brought to the

Board's attention by the complainant in paragraph (a) of this section,

and respond to the complainant, in writing. If the Board has not

responded to the complainant, in writing, or if the complainant is not

satisfied with the Board's attempt to resolve the matter, the

complainant may request the Commission to review whether the Board has

complied with the terms of the settlement agreement or the final

decision. The complainant may file such request for review 35 days

after he or she has served the Board with the notice of allegations of

noncompliance, but must file the request for review with the Commission

within 30 days of his or her receipt of a Board's determination. The

complainant must serve a copy of the request for review on the Board

and the Board may submit a response to the Commission within 30 days of

receiving notice of request for review.

(c) Prior to rendering its determination, the Commission may

request that the parties submit whatever additional information or

documentation they deem necessary, or it may direct that an

investigation or hearing on the matter be conducted. If the Commission

determines that the Board is not in compliance and the noncompliance is

not attributable to acts or conduct of the complainant, it may order

that the complaint be reinstated for further processing from the point

processing ceased. Allegations that subsequent acts of discrimination

violate a settlement agreement shall be processed as separate

complaints under Secs. 268.205 or 268.305 of this part, as appropriate,

rather than under this section.

Sec. 268.505 Civil action: Title VII, Age Discrimination in Employment

Act and Rehabilitation Act.

A complainant who has filed an individual complaint, an agent of

the class who has filed a class complaint or a claimant who has filed a

claim for individual relief pursuant to a class complaint may file a

civil action in an appropriate United States District Court alleging

violations of Title VII, the ADEA or the Rehabilitation Act:

(a) Within 90 days of receipt of the Board's final decision on an

individual or class complaint, whether or not a request for review has

been filed with the Commission;

(b) After 180 days from the date of filing an individual or class

complaint if a request for review by the Commission has not been filed

and a final decision of the Board has not been issued;

(c) Within 90 days of receipt of an EEOC decision; or

(d) After 180 days from the date of filing a request for review

with the Commission if an EEOC decision has not been issued by the

Commission.

Sec. 268.506 Civil action: Equal Pay Act.

A complainant may file a civil action under section 16(b) of the

Fair Labor Standards Act (29 U.S.C. 216(b)) in a court of competent

jurisdiction within two years or, if the violation is willful, three

years of the date of the alleged violation of the Equal Pay Act

regardless of whether he or she pursued any administrative complaint

processing (29 U.S.C. 225). Recovery of back wages under the Equal Pay

Act is limited to two years prior to the date of filing suit, or to

three years if the violation is deemed willful. Liquidated damages in

an equal amount may also be awarded. The filing of a complaint or

request for review with the Commission under this part shall not toll

the time for filing a civil action.

Sec. 268.507 Effect of filing a civil action.

Filing a civil action under Secs. 268.505 or 268.506 of this part

shall terminate the Commission's processing of any request for review.

If a private suit is filed subsequent to the filing of a request for

review, the parties shall notify the Commission of such filing in

writing.

Subpart F--Matters of General Applicability

Sec. 268.601 EEO group statistics.

(a) The Board shall collect and maintain accurate employment

information on the race, national origin, sex and disabilities of its

employees.

(b) Data on race, national origin and sex shall be collected by

voluntary self-identification. If an employee does not voluntarily

provide the requested information, the Board shall advise the employee

of the importance of the data and of the Board's obligation to report

it. If the employee still refuses to provide the information, the Board

shall make a visual identification and inform the employee of the data

it will be reporting. If the Board believes that information provided

by an employee is inaccurate, the Board shall advise the employee that

the purpose for which the data is being collected is solely

statistical, of the need for accuracy, of the Board's recognition of

the sensitivity of the information, and of the existence of procedures

to prevent its unauthorized disclosure. If, thereafter, the employee

declines to change the apparently inaccurate self identification, the

Board shall accept it.

(c) Subject to applicable law, the information collected under

paragraph (b) of this section shall be disclosed only in the form of

gross statistics. The Board will not collect or maintain any

information on the race, national origin, or sex of individual

employees except in accordance with applicable law and when an

automated data processing system is used in accordance with standards

and requirements prescribed by the Commission to insure individual

privacy and the separation of that information from the employee's

personnel record.

(d) The Board's system shall incorporate the following controls:

(1) Only those categories of race and national origin approved by

the Commission shall be used; and

(2) Only the specific procedures for the collection and maintenance

of data that are prescribed or approved by the Commission shall be

used.

(e) The Board shall use the data only in studies and analyses that

contribute affirmatively to achieving the objectives of the Board's

equal employment opportunity program. The Board shall not establish

quotas for the employment of persons on the basis of race, color,

religion, sex, or national origin.

(f) Data on disabilities shall also be collected by voluntary self-

identification. If an employee does not voluntarily provide the

requested information, the Board shall advise the employee of the

importance of the data and of the Board's obligation to report it. If

an employee who has been appointed pursuant to the Board's affirmative

action program for hiring individuals with a disability still refuses

to provide the requested information, the Board shall identify the

employee's disability based upon the records supporting the

appointment. If any other employee still refuses to provide the

requested information or provides information that the Board believes

to be inaccurate, the Board shall report the employee's disability

status as unknown.

(g) The Board shall report to the Commission on employment by race,

national origin, sex and disability in the form and at such times as

the Board and Commission shall agree.

Sec. 268.602 Reports to the Equal Employment Opportunity Commission.

(a) The Board shall report to the Commission information concerning

pre-complaint counseling and the status, processing, and disposition of

complaints under this part at such times and in such manner as the

Board and Commission shall agree.

(b) The Board shall advise the Commission whenever it is served

with a federal court complaint based upon a complaint that is pending

review at the Commission.

(c) The Board shall prepare annually equal employment opportunity

plans of actions, in the form requested by the Commission, and shall

submit such plans for review and advice by the Commission. The plans of

action shall include:

(1) Provision for the establishment of training and education

programs designed to provide maximum opportunity for employees to

advance so as to perform at their highest potential;

(2) Description of the qualifications, in terms of training and

experience relating to equal employment opportunity, of the principal

and operating officials concerned with administration of the Board's

equal employment opportunity program; and

(3) Description of the allocation of personnel and resources

proposed by the Board to carry out its equal employment opportunity

program.

Sec. 268.603 Voluntary settlement attempts.

The Board shall make reasonable efforts to settle, voluntarily,

complaints of discrimination as early as possible in, and throughout,

the administrative processing of complaints, including the pre-

complaint counseling stage. Any settlement reached shall be reduced to

writing and shall be signed by both parties and shall identify the

allegations resolved.

Sec. 268.604 Filing and computation of time.

(a) All time periods in this part that are stated in terms of days

are calendar days unless otherwise stated.

(b) A document shall be deemed timely filed if it is delivered in

person, or sent via U.S. mail and postmarked before the expiration of

the applicable filing period; or, in the absence of a legible postmark,

if it is received via U.S. mail within five days of the expiration of

the applicable filing period.

(c) The time limits in this part are subject to waiver, estoppel,

and equitable tolling.

(d) The first day counted shall be the day after the event from

which the time period began to run and the last day of the period shall

be included, unless it falls on a Saturday, Sunday, or Federal holiday,

in which case the period shall be extended to include the next business

day.

Sec. 268.605 Representation and official time.

(a) At any stage in the processing of a complaint, including the

counseling stage under Sec. 268.204 of this part, the complainant shall

have the right to be accompanied, represented and advised by a

representative of complainant's choice.

(b) If the complainant is an employee of the Board, he or she shall

have a reasonable amount of official time, if otherwise on duty, to

prepare the complaint and to respond to Board and Commission requests

for information. If the complainant is an employee of the Board and he

or she designates another employee of the Board as his or her

representative, the representative shall have a reasonable amount of

official time, if otherwise on duty, to prepare the complaint and

respond to Board and Commission requests for information. The Board is

not obligated to change work schedules, incur overtime wages, or pay

travel expenses to facilitate the choice of a specific representative

or to allow the complainant and representative to confer. The

complainant and the representative, if employed by the Board and

otherwise in a pay status, shall be on official time, regardless of

their tours of duty, when their presence is authorized or required by

the Board or the Commission during the investigation, informal

adjustment, or hearing on the complaint.

(c) In cases where the representation of a complainant or the Board

would conflict with the official or collateral duties of the

representative, the Board may, after giving the representative an

opportunity to respond, disqualify the representative.

(d) Unless the complainant states otherwise in writing, after the

Board has received written notice of the name, address and telephone

number of a representative, all official correspondence shall be with

the representative with copies to the complainant. When the complainant

designates an attorney as representative, service of documents and

decisions on the complaint shall be made on the attorney and not on the

complainant, and time frames for receipt of materials by the

complainant shall be computed from the time of receipt by the attorney.

The complainant must serve all official correspondence on the

designated representative of the Board.

(e) The complainant shall at all times be responsible for

proceeding with the complaint whether or not he or she has designated a

representative.

(f) Witnesses who are Board employees shall be in a duty status

when their presence is authorized or required in connection with a

complaint.

Sec. 268.606 Joint processing and consolidation of complaints.

Complaints of discrimination filed by two or more complainants

consisting of substantially similar allegations of discrimination or

relating to the same matter, or two or more complaints of

discrimination from the same complainant, may be consolidated by the

Board for joint processing after appropriate notification to the

parties. The date of the first filed complaint controls the applicable

time frames under subpart B of this part.

Subpart G--Prohibition Against Discrimination In Board Programs and

Activities Because of a Physical or Mental Disability

Sec. 268.701 Purpose and application.

(a) Purpose. The purpose of this subpart G is to prohibit

discrimination on the basis of a disability in programs or activities

conducted by the Board.

(b) Application. (1) This subpart G applies to all programs and

activities conducted by the Board. Such programs and activities

include:

(i) Holding open meetings of the Board or other meetings or public

hearings at the Board's office in Washington, DC;

(ii) Responding to inquiries, filing complaints, or applying for

employment at the Board's office;

(iii) Making available the Board's library facilities; and

(iv) Any other lawful interaction with the Board or its staff in

any official matter with people who are not employees of the Board.

(2) This subpart G does not apply to Federal Reserve Banks or to

financial institutions or other companies supervised or regulated by

the Board.

Sec. 268.702 Notice.

The Board shall make available to employees, applicants for

employment, participants, beneficiaries, and other interested persons

information regarding the provisions of this subpart G and its

applicability to the programs and activities conducted by the Board,

and make this information available to them in such manner as the Board

finds necessary to apprise such persons of the protections against

discrimination assured them by this subpart G.

Sec. 268.703 Prohibition against discrimination.

(a) No qualified individual with a disability shall, on the basis

of a disability, be excluded from participation in, be denied the

benefits of, or otherwise be subjected to discrimination in any program

or activity conducted by the Board.

(b)(1) The Board, in providing any aid, benefit, or service, may

not, directly or through contractual, licensing, or other arrangements,

on the basis of a disability:

(i) Deny a qualified individual with a disability the opportunity

to participate in or benefit from the aid, benefit, or service that is

not equal to that provide to others;

(ii) Afford a qualified individual with a disability an opportunity

to participate in or benefit from the aid, benefit, or service that is

not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid,

benefit, or service that is not as effective in affording equal

opportunity to obtain the same result, to gain the same benefit, or to

reach the same level of achievement as that provided to others;

(iv) Provide different or separate aid, benefits, or services to

individuals with a disability or to any class of individuals with a

disability than is provided to others unless such action is necessary

to provide qualified individuals with a disability with aid, benefits,

or services that are as effective as those provided to others;

(v) Deny a qualified individual with a disability the opportunity

to participate as a member of planning or advisory boards; or

(vi) Otherwise limit a qualified individual with a disability in

the enjoyment of any right, privilege, advantage, or opportunity

enjoyed by others receiving the aid, benefit, or service.

(2) The Board may not deny a qualified individual with a disability

the opportunity to participate in programs or activities that are not

separate or different, despite the existence of permissibly separate or

different programs or activities.

(3) The Board may not, directly or through contractual or other

arrangements, utilize criteria or methods of administration, the

purpose or effect of which would:

(i) Subject qualified individuals with a disability to

discrimination on the basis of a disability; or

(ii) Defeat or substantially impair accomplishment of the

objectives of a program or activity with respect to individuals with a

disability.

(4) The Board may not, in determining the site or location of a

facility, make selections the purpose or effect of which would:

(i) Exclude individuals with a disability from, deny them the

benefits of, or otherwise subject them to discrimination under any

program or activity conducted by the Board; or

(ii) Defeat or substantially impair the accomplishment of the

objectives or a program or activity with respect to individuals with a

disability.

(5) The Board, in the selection of procurement contractors, may not

use criteria that subject qualified individuals with a disability to

discrimination on the basis of a disability.

(6) The Board may not administer a licensing or certification

program in a manner that subjects qualified individuals with a

disability to discrimination on the basis of a disability, nor may the

Board establish requirements for the programs and activities of

licensees or certified entities that subject qualified individuals with

a disability to discrimination on the basis of a disability. However,

the programs and activities of entities that are licensed or certified

by the Board are not, themselves, covered by this subpart G.

(c) The exclusion of individuals who do not have a disability from

the benefits of a program limited by Federal statute or Board order to

individuals with a disability or the exclusion of a specific class of

individuals with a disability from a program limited by Federal statute

or Board order to a different class of individuals with a disability is

not prohibited by this subpart G.

(d) The Board shall administer programs and activities in the most

integrated setting appropriate to the needs of qualified individuals

with a disability.

Sec. 268.704 Employment.

No qualified individual with a disability shall, on the basis of a

disability, be subjected to discrimination in employment under any

program or activity conducted by the Board. The requirements and

procedures of Sec. 268.303 of this part shall apply to discrimination

in employment under this subpart G.

Sec. 268.705 Program accessibility: Discrimination prohibited.

Except as otherwise provided in Sec. 268.706 of this part, no

qualified individual with a disability shall, because the Board's

facilities are inaccessible to or unusable by individuals with a

disability, be denied the benefits of, be excluded from participation

in, or otherwise be subjected to discrimination under any program or

activity conducted by the Board.

Sec. 268.706 Program accessibility: Existing facilities.

(a) General. The Board shall operate each program or activity so

that the program or activity, when viewed in its entirety, is readily

accessible to and usable by individuals with a disability. This

paragraph (a) does not:

(1) Necessarily require the Board to make each of its existing

facilities accessible to and usable by individuals with a disability;

or

(2) Require the Board to take any action that it can determine,

based on a written record, would result in a fundamental alteration in

the nature of a program or activity or in undue financial and

administrative burdens. In those circumstances where the Board believes

that the proposed action would fundamentally alter the program or

activity or would result in undue financial and administrative burdens,

the Board shall establish a written record showing that compliance with

this paragraph (a) would result in such alterations or burdens. The

decision that compliance would result in such alterations or burdens

shall be made by the Board of Governors or their designee after

considering all Board resources available for use in the funding and

operation of the conducted program or activity, and must be accompanied

by a written statement of the reasons for reaching that conclusion. If

an action would result in such an alteration or such burdens, the Board

shall take any other action that would not result in such an alteration

or such burdens but would nevertheless ensure that individuals with a

disability receive the benefits and services of the program or

activity.

(b) Methods. The Board may comply with the requirements of this

subpart G through such means as redesign of equipment, reassignment of

services to accessible buildings, assignment of aides to individuals

with a disability, home visits, delivery of service at alternate

accessible sites, alteration of existing facilities and construction of

new facilities, use of accessible rolling stock, or any other methods

that result in making its programs or activities readily accessible to

and usable by individuals with a disability. The Board is not required

to make structural changes in existing facilities where other methods

are effective in achieving compliance with this subpart G. In choosing

among available methods for meeting the requirements of this subpart G,

the Board gives priority to those methods that offer programs and

activities to qualified individuals with a disability in the most

integrated setting appropriate.

(c) Time period for compliance. The Board shall comply with any

obligations established under this subpart G as expeditiously as

possible.

Sec. 268.707 Program accessibility: New construction and alterations.

Each building or part of a building that is constructed or altered

by, on behalf of, or for the use of the Board, shall be designed,

constructed, or altered so as to be readily accessible to and usable by

individuals with a disability.

Sec. 268.708 Communications.

(a) The Board shall take appropriate steps to ensure effective

communication with applicants for employment, participants, personnel

of other Federal entities, and members of the public.

(1) The Board shall furnish appropriate auxiliary aids where

necessary to afford an individual with a disability an equal

opportunity to participate in, and enjoy the benefits of, a program or

activity conducted by the Board.

(i) In determining what type of auxiliary aid is necessary, the

Board shall give primary consideration to the requests of the

individual with a disability.

(ii) The Board need not provide individually prescribed devices,

readers for personal use or study, or other devices of a personal

nature.

(2) Where the Board communicates with employees and others by

telephone, telecommunication devices for deaf persons (TDD's) or

equally effective telecommunication systems shall be used.

(b) The Board shall ensure that interested persons, including

persons with impaired vision or hearing, can obtain information as to

the existence and location of accessible services, activities, and

facilities.

(c) The Board shall provide signs at a primary entrance to any

inaccessible facility, directing users to a location at which they can

obtain information about accessible facilities. The international

symbol for accessibility shall be used at each primary entrance of an

accessible facility.

(d) This subpart G does not require the Board to take any action

that would result in a fundamental alteration in the nature of a

program or activity or in undue financial and administrative burdens.

In those circumstances where the Board believes that the proposed

action would fundamentally alter the program or activity or would

result in undue financial and administrative burdens, the Board shall

establish a written record showing compliance with this subpart G would

result in such alterations or burdens. The determination that

compliance would result in such alterations or burdens shall be made by

the Board of Governors or their designee after considering all Board

resources available for use in the funding and operation of the

conducted program or activity, and must be accompanied by a written

statement of the reasons for reaching that conclusion. If an action

required to comply with this subpart G would result in such an

alteration or such burdens, the Board shall take any other action that

would not result in such an alteration or such burdens but would

nevertheless ensure that, to the maximum extent possible, individuals

with a disability receive the benefits and services of the program or

activity.

Sec. 268.709 Compliance procedures.

(a) Applicability. Notwithstanding any other provision of this

part, this section, except as provided in paragraph (b) of this

section, rather than subpart B and Sec. 268.305 of this part, shall

apply to all allegations of discrimination on the basis of a disability

in programs or activities conducted by the Board.

(b) Employment complaints. The Board shall process complaints

alleging discrimination in employment on the basis of a disability in

accordance with subpart B and Sec. 268.305 of this part.

(c) Responsible official. The EEO Programs Director shall be

responsible for coordinating implementation of this section.

(d) Filing the complaint--(1) Who may file. Any person who believes

that he or she has been subjected to discrimination prohibited by this

subpart G may, personally or by his or her authorized representative,

file a complaint of discrimination with the EEO Programs Director.

(2) Confidentiality. The EEO Programs Director shall not reveal the

identity of any person submitting a complaint, except when authorized

to do so in writing by the complainant, and except to the extent

necessary to carry out the purposes of this subpart G, including the

conduct of any investigation, hearing, or proceeding under this subpart

G.

(3) When to file. Complaints shall be filed within 180 days of the

alleged act of discrimination. The EEO Programs Director may extend

this time limit for good cause shown. For the purpose of determining

when a complaint is timely filed under this paragraph (d), a complaint

mailed to the Board shall be deemed filed on the date it is postmarked.

Any other complaint shall be deemed filed on the date it is received by

the Board.

(4) How to file. Complaints may be delivered or mailed to the

Administrative Governor, the Staff Director for Management, the EEO

Programs Director, the Federal Women's Program Manager, the Hispanic

Program Coordinator, or the Disabled Persons Program Coordinator.

Complaints should be sent to the EEO Programs Director, Board of

Governors of the Federal Reserve System, 20th and C Street NW.,

Washington, DC 20551. If any Board official other than the EEO Programs

Director receives a complaint, he or she shall forward the complaint to

the EEO Programs Director.

(e) Acceptance of complaint. (1) The EEO Programs Director shall

accept a complete complaint that is filed in accordance with paragraph

(d) of this section and over which the Board has jurisdiction. The EEO

Programs Director shall notify the complainant of receipt and

acceptance of the complaint.

(2) If the EEO Programs Director receives a complaint that is not

complete, he or she shall notify the complainant, within 30 days of

receipt of the incomplete complaint, that additional information is

needed. If the complainant fails to complete the complaint within 30

days of receipt of this notice, the EEO Programs Director shall dismiss

the complaint without prejudice.

(3) If the EEO Programs Director receives a complaint over which

the Board does not have jurisdiction, the EEO Programs Director shall

notify the complainant and shall make reasonable efforts to refer the

complaint to the appropriate government entity.

(f) lnvestigation/conciliation. (1) Within 180 days of the receipt

of a complete complaint, the EEO Programs Director shall complete the

investigation of the complaint, attempt informal resolution of the

complaint, and if no informal resolution is achieved, the EEO Programs

Director shall forward the investigative report to the Staff Director

for Management.

(2) The EEO Programs Director may request Board employees to

cooperate in the investigation and attempted resolution of complaints.

Employees who are requested by the EEO Programs Director to participate

in any investigation under this section shall do so as part of their

official duties and during the course of regular duty hours.

(3) The EEO Programs Director shall furnish the complainant with a

copy of the investigative report promptly after completion of the

investigation and provide the complainant with an opportunity for

informal resolution of the complaint.

(4) If a complaint is resolved informally, the terms of the

agreement shall be reduced to writing and made a part of the complaint

file, with a copy of the agreement provided to the complainant. The

written agreement may include a finding on the issue of discrimination

and shall describe any corrective action to which the complainant has

agreed.

(g) Letter of findings. (1) If an informal resolution of the

complaint is not reached, the EEO Programs Director shall transmit the

complaint file to the Staff Director for Management. The Staff Director

for Management shall, within 180 days of the receipt of the complete

complaint by the EEO Programs Director, notify the complainant of the

results of the investigation in a letter sent by certified mail, return

receipt requested, containing:

(i) Findings of fact and conclusions of law;

(ii) A description of a remedy for each violation found;

(iii) A notice of right of the complainant to appeal the letter of

findings under paragraph (k) of this section; and

(iv) A notice of right of the complainant to request a hearing.

(2) If the complainant does not file a notice of appeal or does not

request a hearing within the times prescribed in paragraph (h)(1) and

(j)(1) of this section, the EEO Programs Director shall certify that

the letter of findings under this paragraph (g) is the final decision

of the Board at the expiration of those times.

(h) Filing an appeal. (1) Notice of appeal, with or without a

request for hearing, shall be filed by the complainant with the EEO

Programs Director within 30 days of receipt from the Staff Director for

Management of the letter of findings required by paragraph (g) of this

section.

(2) If the complainant does not request a hearing, the EEO Programs

Director shall notify the Board of Governors of the appeal by the

complainant and that a decision must be made under paragraph (k) of

this section.

(i) Acceptance of appeal. The EEO Programs Director shall accept

and process any timely appeal. A complainant may appeal to the

Administrative Governor from a decision by the EEO Programs Director

that an appeal is untimely. This appeal shall be filed within 15

calendar days of receipt of the decision from the EEO Programs

Director.

(j) Hearing. (1) Notice of a request for a hearing, with or without

a request for an appeal, shall be filed by the complainant with the EEO

Programs Director within 30 days of receipt from the Staff Director for

Management of the letter of findings required by paragraph (g) of this

section. Upon a timely request for a hearing, the EEO Programs Director

shall request that the Board of Governors, or its designee, appoint an

administrative law judge to conduct the hearing. The administrative law

judge shall issue a notice to the complainant and the Board specifying

the date, time, and place of the scheduled hearing. The hearing shall

be commenced no earlier than 15 calendar days after the notice is

issued and no later than 60 days after the request for a hearing is

filed, unless all parties agree to a different date.

(2) The hearing, decision, and any administrative review thereof

shall be conducted in conformity with 5 U.S.C. 554-557. The

administrative law judge shall have the duty to conduct a fair hearing,

to take all necessary actions to avoid delay, and to maintain order. He

or she shall have all powers necessary to these ends, including (but

not limited to) the power to:

(i) Arrange and change the dates, times, and places of hearings and

prehearing conferences and to issue notice thereof;

(ii) Hold conferences to settle, simplify, or determine the issues

in a hearing, or to consider other matters that may aid in the

expeditious disposition of the hearing;

(iii) Require parties to state their positions in writing with

respect to the various issues in the hearing and to exchange such

statements with all other parties;

(iv) Examine witnesses and direct witnesses to testify;

(v) Receive, rule on, exclude, or limit evidence;

(vi) Rule on procedural items pending before him or her; and

(vii) Take any action permitted to the administrative law judge as

authorized by this subpart G or by the provisions of the Administrative

Procedure Act (5 U.S.C. 554-557).

(3) Technical rules of evidence shall not apply to hearings

conducted pursuant to this paragraph (j), but rules or principles

designed to assure production of credible evidence and to subject

testimony to cross-examination shall be applied by the administrative

law judge wherever reasonably necessary. The administrative law judge

may exclude irrelevant, immaterial, or unduly repetitious evidence. All

documents and other evidence offered or taken for the record shall be

open to examination by the parties, and opportunity shall be given to

refute facts and arguments advanced on either side of the issues. A

transcript shall be made of the oral evidence except to the extent the

substance thereof is stipulated for the record. All decisions shall be

based upon the hearing record.

(4) The costs and expenses for the conduct of a hearing shall be

allocated as follows:

(i) Employees of the Board shall, upon the request of the

administrative law judge, be made available to participate in the

hearing and shall be on official duty status for this purpose. They

shall not receive witness fees.

(ii) Employees of other Federal agencies called to testify at a

hearing, at the request of the administrative law judge and with the

approval of the employing agency, shall be on official duty status

during any absence from normal duties caused by their testimony, and

shall not receive witness fees.

(iii) The fees and expenses of other persons called to testify at a

hearing shall be paid by the party requesting their appearance.

(iv) The administrative law judge may require the Board to pay

travel expenses necessary for the complainant to attend the hearing.

(v) The Board shall pay the required expenses and charges for the

administrative law judge and court reporter.

(vi) All other expenses shall be paid by the parties incurring

them.

(5) The administrative law judge shall submit in writing

recommended findings of fact, conclusions of law, and remedies to the

complainant and the EEO Programs Director within 30 days, after the

receipt of the hearing transcripts, or within 30 days after the

conclusion of the hearing if no transcripts are made. This time limit

may be extended with the permission of the EEO Programs Director.

(6) Within 15 calendar days after receipt of the recommended

decision of the administrative law judge, the complainant may file

exceptions to the recommended decision with the EEO Programs Director.

On behalf of the Board, the EEO Programs Director may, within 15

calendar days after receipt of the recommended decision of the

administrative law judge, take exception to the recommended decision of

the administrative law judge and shall notify the complainant in

writing of the Board's exception. Thereafter, the complainant shall

have 10 calendar days to file reply exceptions with the EEO Programs

Director. The EEO Programs Director shall retain copies of the

exceptions and replies to the Board's exception for consideration by

the Board. After the expiration of the time to reply, the recommended

decision shall be ripe for a decision under paragraph (k) of this

section.

(k) Decision. (1) The EEO Programs Director shall notify the Board

of Governors when a complaint is ripe for decision under this paragraph

(k). At the request of any member of the Board of Governors made within

3 business days of such notice, the Board of Governors shall make the

decision on the complaint. If no such request is made, the

Administrative Governor, or the Staff Director for Management if he or

she is delegated the authority to do so under Sec. 268.103(a)(2) of

this part, shall make the

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