add in workplace

ADD Adults In The Workplace

cont.

Acting as EEOC's agent and applying consistent legal standards, OFCCP will process and resolve the ADA component of the section 503 complaint/ADA charge, except where the complaint/charge raises an issue designated to be a Priority List issue, defined as a limited number of controversial topics on which there is not yet definitive guidance as to EEOC's position, or where the complaint/ charge also raises certain allegations of discrimination on the basis of race, color, religion, sex, national origin or age. OFCCP will refer complaints/charges raising Priority List issues or certain allegations of discrimination on the basis of race, color, religion, sex, national origin or age in their entirety to EEOC for processing and final resolution, provided that such complaints/charges do not include allegations of violation of affirmative action requirements under section 503. In such a situation, OFCCP will bifurcate the complaints/charges and refer only the allegations regarding Priority List issues or discrimination on the basis of race, color, religion, sex, national origin or age. OFCCP will also refer to EEOC for litigation review under the ADA any complaint/charge where a violation has been found, conciliation fails, and OFCCP declines to pursue administrative enforcement.

EEOC Processing

In brief, EEOC will refer ADA charges that are also covered by section 503 to OFCCP under two circumstances. First, ADA cause charges that also fall within the jurisdiction of section 503 and that the Commission has investigated but declines to litigate after the failure of conciliation will be referred to OFCCP for review of the file and any administrative action deemed appropriate. Second, ADA charges filed with EEOC, in which both allegations of discrimination under the ADA and violation of affirmative action requirements under section 503 are made, will be referred in their entirety to OFCCP for processing and resolution under section 503 and the ADA, unless the charges also include certain allegations of discrimination on the basis of race, color, religion, sex, national origin or age, or include allegations involving Priority List issues, or the charges are otherwise deemed of particular importance to EEOC's enforcement of the ADA. In these three situations, EEOC will bifurcate the charges and retain the ADA component of the charges (and when applicable, the allegations pertaining to discrimination on the basis of race, color, religion, sex, national origin or age), referring the section 503 affirmative action component of the charges to OFCCP for processing and resolution under section 503.

For the purposes stated in the preceding paragraph, ADA charges also falling within the jurisdiction of section 503 will be considered complaints, simultaneously dual filed, under section 503.

Analysis of Comments and Revisions

The Commission received eight comments in response to a notice of proposed rulemaking published jointly with OFCCP on October 28, 1991. 56 FR 55578. One commenter supported the joint proposed rule as published. The other commenters suggested that various revisions be made. Two commenters expressed concern about the use of the Priority List as a means by which to determine the agency that will process and resolve complaints/charges, and asked that the Priority List be periodically published. Another commenter asked that section ____.5(e) of the joint proposed rule be revised to provide for the bifurcation of complaints/charges containing allegations concerning Priority List issues and violation of affirmative action requirements under section 503. Other commenters asked that complaints/charges not be bifurcated under any circumstances, and expressed confusion about the deferral period referred to in section ____.5(c) of the joint proposed rule. Concern was also expressed by two commenters about the confidentiality of section 503 affirmative action plans that may be given to the Commission as part of an exchange of information, and about the protection of classified or certain unclassified information disclosed to EEOC or OFCCP during the course of an investigation of a Federal contractor.

One commenter asked that the joint final rule provide for the transfer to EEOC of all complaints/charges that include a request for damages pursuant to the Civil Rights Act of 1991, P.L. 102-166. This commenter also asked that EEOC and OFCCP adopt a substantial weight review process, similar to that used by the Commission to review the investigative files of state and local agencies designated as "FEP agencies" under title VII of the Civil Rights Act of 1964, when reviewing complaints/charges pursuant to sections ____.5(e)(2)(ii) and ____.6(a) of the joint proposed rule.

The Commission and OFCCP have made a number of revisions in response to these comments. Section ____.5(c) has been revised to clarify that the deferral period that will be waived is the deferral period referred to in the work-sharing agreements between EEOC and state and local agencies designated as FEP agencies.

Section ____.5(e) has been revised to provide that OFCCP will bifurcate any complaints/charges it receives that contain both Priority List issues and allegations of violation of section 503 affirmative action requirements. In such a situation, OFCCP will retain, process and resolve the allegations of violation of affirmative action requirements, and refer to EEOC only the allegations raising Priority List issues.

Sections ____.5(e)(2)(i) and ____.5(e)(2)(ii) of the joint proposed rule have also been revised. Section ____.5(e)(2)(i) now provides that when engaging in conciliation as EEOC's agent, OFCCP shall attempt to obtain appropriate "full relief" for the complainant/charging party. EEOC and OFCCP intend that "full relief" be distinguished from "make whole relief," which historically has referred to remedies such as back pay, front pay and reinstatement, but did not include compensatory or punitive damages. Pursuant to the Civil Rights Act of 1991, P.L. 102-166, passed after the issuance of the joint proposed rule, compensatory and/or punitive damages may be available in cases of intentional discrimination under the ADA. EEOC and OFCCP intend that "full relief" encompass "make whole relief" and, where appropriate under the ADA, compensatory and/or punitive damages.

top | continued | table of contents | your comments

home | about me | diagnosis | behaviors | faqs | personal stories | parenting
education | workplace | articles | meds | humor | resources | send page