add in workplace

ADD Adults In The Workplace

cont.

If OFCCP (acting as EEOC's agent under the ADA) is unable to conciliate for appropriate compensatory and/or punitive damages, the conciliation attempt will be considered unsuccessful, and thus section ____.5(e)(2)(ii) will apply. Since compensatory and punitive damages are unavailable under section 503, OFCCP will not be able to obtain such relief in the context of litigation under that statute, and thus will not pursue administrative litigation of complaints/charges where damages would be appropriate relief. OFCCP will thereupon, in accordance with section ____.5(e)(2)(ii) of this part, close the section 503 component of the complaint/charge and refer the ADA charge component to EEOC for litigation review under the ADA.

EEOC and OFCCP also have not accepted a number of suggested revisions proposed by commenters. First, the joint final rule retains the provisions of the joint proposed rule regarding the development and use of the Priority List as a means by which to determine the agency that will process and resolve complaints/charges. The Priority List will be a constantly evolving internal and informal catalog of difficult ADA issues on which the Commission has not yet taken a position. OFCCP and the Commission have determined that it is important to identify such issues in this manner, and that it is appropriate for the Commission, as the agency responsible for the enforcement of the ADA, to process and resolve complaints/charges that raise these issues. However, since the Priority List will neither establish nor implement substantive ADA policy, the publication of the Priority List would not be appropriate.

Second, like the joint proposed rule, the joint final rule provides for the bifurcation of certain complaints/charges. OFCCP and EEOC have determined that such bifurcation is necessary, in view of the agencies' differing enforcement powers and areas of expertise, to ensure that the rights of complainants/charging parties are fully protected in the most efficient manner possible.

It should also be noted that the joint final rule does not provide additional confidentiality protection for section 503 affirmative action plans, or for the handling of classified and unclassified information received from Federal contractor respondents, beyond that which may be available under other existing Federal laws. OFCCP and the Commission have determined that the inclusion of additional confidentiality provisions in this part is not necessary in order to ensure adequate protection of this information.

Finally, it should be noted that EEOC and OFCCP have not accepted the suggestion that a substantial weight review process be incorporated into this part. While such a process is appropriate in the context of the review of the investigative files of FEP agencies under title VII of the Civil Rights Act of 1964, the Commission and OFCCP have determined that that process would not be appropriate in the context of the coordination of the enforcement efforts of EEOC and OFCCP as set forth in this part.

In addition to the revisions made in response to the comments from the public, the Commission and OFCCP have made several technical revisions to the joint final rule to ensure that it is consistent with the pre-existing Memorandum of Understanding (MOU) between the two agencies (46 FR 7435 (January 23, 1981)) coordinating the enforcement of title VII of the Civil Rights Act of 1964 and Executive Order 11246. Accordingly, sections ____.2(b) and ____.2(c) have been added to the joint final rule. Section ____.2(b) provides that requests by third parties for disclosure of information be coordinated with the agency that initially compiled or collected the information. Section ____.2(c) exempts from the requirements of section ____.2(b) requests for data in EEOC files by FEP agencies. However, section ____.2(c) requires FEP agencies to obtain express written approval from OFCCP before disclosing to the public any information initially compiled by OFCCP.

Similarly, consistent with the MOU between OFCCP and EEOC, section ____.5(e) has been revised to clarify that OFCCP shall normally retain, investigate, process and resolve all allegations of discrimination of a systemic or class nature on the basis of race, color, religion, sex, or national origin that it receives. In appropriate cases, however, EEOC may request that it be referred such allegations to avoid duplication of effort and ensure effective law enforcement. Section ____.5(e) provides, further, that OFCCP will generally refer to EEOC complaints/charges including allegations of discrimination of an individual nature on the basis of race, color, religion, sex, or national origin, or allegations of discrimination based on age.

Other technical changes also have been made. Under revised section ____.5(e)(2)(ii), OFCCP will refer to EEOC, complaints/charges that it has pursued to administrative litigation, but that have been dismissed on procedural or jurisdictional grounds, or because the contractor/respondent fails to comply with an order to provide make whole relief. In these three situations, EEOC will either take further appropriate action, or issue a notice of right-to-sue. The joint proposed rule had provided that in such situations OFCCP would close the complaints/charges and issue a notice of right-to-sue.

A technical change has also been made to section ____.6(b). This change clarifies that EEOC will bifurcate complaints/charges it receives that are deemed "of particular importance" to the Commission's enforcement of the ADA, as well as those that include allegations of discrimination on the basis of race, color, religion, sex, national origin, or age, or allegations involving Priority List issues. Complaints/charges may be "of particular importance" for a variety of reasons. For example, a complaint/charge may raise a novel ADA issue not yet on the Priority List. The joint proposed rule had stated that EEOC would bifurcate complaints/charges that were "otherwise deemed important" to enforcement of the ADA.

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