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  4. Background and Summary of the Board’s Rules Regarding Equal Opportunity

Background and Summary of the Board’s Rules Regarding Equal Opportunity

8-549
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 as are available to those dealing with other government agencies. The Board’s Rules Regarding Equal Opportunity (12 CFR 268) were issued to provide for equal opportunity in employment in compliance with the letter and spirit of title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Rehabilitation Act. The Board has designated an EEO programs officer, a Federal Women’s Program manager, a Hispanic Program coordinator, and a Disability Program coordinator and has formulated and implemented affirmative action plans that are routinely submitted to the EEOC.
The regulation provides for EEOC review of Board decisions on complaints of discrimination, at the request of any complainant, in order to provide employees and applicants for employment with an additional level of administrative review. The Board believes that EEOC review under the Board’s rules is not inconsistent with the Board’s independent status as established by the Federal Reserve Act.
The regulation is also intended to conform to Department of Justice regulations that implement section 504 of the Rehabilitation Act with regard to accessibility to the Board’s programs and activities. In addition, section 268.304 of the Board’s regulation governs the employment of noncitizens. Major portions of the Board’s regulation are derived substantially verbatim from the regulations of the EEOC and Department of Justice (29 CFR 1614 and 28 CFR 39).
8-549.1

ADMINISTRATION

Subpart A, “General Provisions and Administration,” defines the powers and responsibilities of various Board officials under this regulation. Subpart A delegates to the administrative governor, a member of the Board of Governors, authority to make decisions on complaints of discrimination on behalf of the Board pursuant to sections 268.209 and 268.709(k), if no member of the Board of Governors elects to have the Board make the decision. These sections also permit the administrative governor to delegate this authority to the staff director for management, a Board officer responsible directly to the administrative governor and to the Board of Governors, or to other appropriate officers or employees of the Board. These delegations of authority are qualified, however, by a requirement that, at the request of any member of the Board, the decision on any complaint of discrimination shall be made by the Board rather than by any delegee of the Board. Responsibility for day-to-day management of the Board’s equal opportunity programs is vested principally in the EEO programs officer, who is also an officer of the Board.
8-549.2

PROCESSING OF COMPLAINTS

Subpart B and section 268.305 of the regulation establish procedures for processing individual and class complaints of discrimination in employment on the basis of race, color, religion, sex, national origin, age, and physical or mental disability. For the most part, subpart B and section 268.305 track the corresponding regulations of the EEOC. The principal difference between the Board regulation and the EEOC regulation has to do with the process for making decisions on complaints. Also, there is no provision for mixed-case complaints, and, because the Board does not use the title “equal employment opportunity director,” the responsibility for functions assigned generally to the director in the EEOC’s regulation is given to officials specifically identified in the Board’s regulation.
Employees and applicants for employment who believe that they have been discriminated against by the Board must seek counseling from an EEO counselor within 45 calendar days before filing a complaint. Complaints must be filed with the Board within 15 calendar days of the EEO counselor’s written notice to the aggrieved employee or applicant for employment. After a complaint is filed, the Board must conduct an investigation and provide the complainant with a copy of the investigation report within 180 calendar days. The complainant may then seek a decision from the Board or a hearing before an administrative law judge provided by the EEOC.
8-549.3

AGE

Section 268.301 establishes rights conforming to those granted to federal employees and applicants for employment by the Age Discrimination in Employment Act.
8-549.4

PHYSICAL OR MENTAL DISABILITY

Section 268.303 defines rights conforming to those granted to federal employees and applicants for employment under section 501 of the Rehabilitation Act. The language of section 268.303 conforms subtantially to the EEOC regulation (29 CFR 1614.203).
Subpart G, “Prohibition Against Discrimination in Board Programs and Activities Because of a Physical or Mental Disability,” defines rights of the kind established by section 504 of the Rehabilitation Act. The Board does not conduct any programs of federal financial assistance within the meaning of section 504. Subpart G defines the rights of disabled persons in connection with the programs and activities of the Board.
Subpart G does not govern the conduct of Federal Reserve Banks or of depository institutions or other companies supervised or regulated by the Board. Federal Reserve Banks are federally chartered, privately owned institutions that perform both governmental and nongovernmental functions. The Reserve Banks are not government agencies for purposes of the Civil Rights Act, the Rehabilitation Act, and other similar laws; therefore, they have long interacted with the EEOC under those provisons of title VII of the Civil Rights Act that apply to nongovernmental employers (see Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984)). Depository institutions and other companies supervised or regulated by the Board are nongovernment employers for the purposes of those acts, and the Board has no authority to enforce those laws.
8-549.5

EQUAL PAY

Section 268.302 covers matters addressed by the Equal Pay Act. It is the Board’s policy not to discriminate on the basis of sex by paying employees of one sex at a lower wage rate than the rate at which it pays employees of the opposite sex for equal work.
8-549.6

EMPLOYMENT OF NONCITIZENS

Section 268.304 permits the employment of noncitizens (except unauthorized aliens) in positions that do not require access to sensitive information. However, citizens and those intending to become citizens will be preferred over noncitizens with equal qualifications. Employment of unauthorized aliens is prohibited. If a position involves access to sensitive information of the Board, it may be filled only by a U.S. citizen or a person intending to become a citizen, as outlined in 8 USC 1324b(a)(3)(B). This restriction applies both to Board employees and to examiners employed by the Reserve Banks.
8-549.7

REVIEW BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Subpart D is intended to provide for EEOC review of any Board decision on a complaint of discrimination. Subpart D also provides that any findings by the EEOC following its review of a Board determination shall be returned to the Board for consideration and issuance of a final decision. EEOC review is limited to employment issues regarding race, color, religion, sex, national origin, age, and physical and mental disability.
Under the Board’s rules, a complainant may file a civil action in U.S. district court within certain time frames to challenge violations of the Civil Rights Act, the Age Discrimination in Employment Act, the Rehabilition Act, or the Equal Pay Act (12 CFR 268.505, 268.506, and 268.709(k)).
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