PART 1640—PROCEDURES FOR COORDINATING THE INVESTIGATION OF COMPLAINTS OR CHARGES OF EMPLOYMENT DISCRIMINATION BASED ON DISABILITY SUBJECT TO THE AMERICANS WITH DISABILITIES ACT AND SECTION 504 OF THE REHABILITATION ACT OF 1973 Authority: 5 U.S.C. 301; 29 U.S.C. 794(d); 42 U.S.C. 12117(b). Source: 59 FR 39904, 39908, Aug. 4, 1994, unless otherwise noted. § 1640.1 Purpose and application. (a) This part establishes the procedures to be followed by the Federal agencies responsible for processing and resolving complaints or charges of employment discrimination filed against recipients of Federal financial assistance when jurisdiction exists under both section 504 and title I. (b) This part also repeats the provisions established by 28 CFR 35.171 for determining which Federal agency shall process and resolve complaints or charges of employment discrimination: (1) That fall within the overlapping jurisdiction of titles I and II (but are not covered by section 504); and (2) That are covered by title II, but not title I (whether or not they are also covered by section 504). (c) This part also describes the procedures to be followed when a complaint or charge arising solely under section 504 or title I is filed with a section 504 agency or the EEOC. (d) This part does not apply to complaints or charges against Federal contractors under section 503 of the Rehabilitation Act. (e) This part does not create rights in any person or confer agency jurisdiction not created or conferred by the ADA or section 504 over any complaint or charge. § 1640.2 Definitions. As used in this part, the term: Americans with Disabilities Act of 1990 ADA Assistant Attorney General Chairman of the Equal Employment Opportunity Commission Civil Rights Division Designated agency Dual-filed complaint or charge (1) Arises under both section 504 and title I; (2) Has been filed with both a section 504 agency that has jurisdiction under section 504 and with the EEOC, which has jurisdiction under title I; and (3) Alleges the same facts and raises the same issues in both filings. Due weight (1) The extent to which the underlying investigation is complete and the evidence is supportive of the findings and conclusions; (2) The nature and results of any subsequent proceedings; (3) The extent to which the findings, conclusions and any actions taken: (i) Under title I are consistent with the effective enforcement of section 504; or (ii) Under section 504 are consistent with the effective enforcement of title I; and (4) The section 504 agency's responsibilities under section 504 or the EEOC's responsibilities under title I. Equal Employment Opportunity Commission EEOC Federal financial assistance Program or activity Public entity (1) Any State or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act, 45 U.S.C. 502(8)). Recipient Section 504 Section 504 agency Title I Title II § 1640.3 Exchange of information. The EEOC, section 504 agencies, and designated agencies shall share any information relating to the employment policies and practices of a respondent that may assist each agency in carrying out its responsibilities, to the extent permissible by law. Such information shall include, but is not limited to, complaints, charges, investigative files, compliance review reports and files, affirmative action programs, and annual employment reports. § 1640.4 Confidentiality. (a) When a section 504 agency or a designated agency receives information obtained by the EEOC, such agency shall observe the confidentiality requirements of section 706(b) and section 709(e) of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-5(b) and 2000e-8(e)), as incorporated by section 107(a) of the ADA, to the same extent as these provisions would bind the EEOC, except when the agency receives the same information from a source independent of the EEOC. Agency questions concerning the confidentiality requirements of title I shall be directed to the Associate Legal Counsel for Legal Services, Office of Legal Counsel, the EEOC. (b) When the EEOC receives information from a section 504 or a designated agency, the EEOC shall observe any confidentiality requirements applicable to that information. § 1640.5 Date of receipt. A complaint or charge of employment discrimination is deemed to be filed, for purposes of determining timeliness, on the date the complaint or charge is first received by a Federal agency with section 504 or ADA jurisdiction, regardless of whether it is subsequently transferred to another agency for processing. § 1640.6 Processing of complaints of employment discrimination filed with an agency other than the EEOC. (a) Agency determination of jurisdiction. (1) Determine whether it has jurisdiction over the complaint under section 504 or under title II of the ADA; and (2) Determine whether the EEOC may have jurisdiction over the complaint under title I of the ADA. (b) Referral to the Civil Rights Division. (c) Referral to the EEOC Referral by an agency without jurisdiction. (2) Referral by a section 504 agency. (A) The section 504 agency determines that the EEOC does not have jurisdiction over the complaint under title I; or (B) The EEOC has jurisdiction over the complaint under title I, but the complainant, either independently, or following receipt of the notification letter required to be sent to the complainant pursuant to paragraph (c)(2)(ii) of this section, specifically requests that the complaint be investigated by the section 504 agency. (ii) Prior to referring an individual complaint of employment discrimination to the EEOC pursuant to paragraph (c)(2)(i) of this section (but not prior to making such a referral pursuant to paragraph (c)(1) of this section), a section 504 agency that otherwise has jurisdiction over the complaint shall promptly notify the complainant, in writing, of its intention to make such a referral. The notice letter shall: (A) Inform the complainant that, unless the agency receives a written request from the complainant within twenty days of the date of the notice letter requesting that the agency retain the complaint for investigation, the agency will forward the complaint to the EEOC for investigation and processing; and (B) Describe the basic procedural differences between an investigation under section 504 and an investigation under title I, and inform the complainant of the potential for differing remedies under each statute. (3) Referral by a designated agency. (4) Processing of complaints referred to the EEOC. (ii) A complaint referred to the EEOC by an agency that has jurisdiction over the complaint solely under title II (and not under section 504) will be treated as a complaint filed under title I only. (iii) Any complaint referred to the EEOC pursuant to this section shall be processed by the EEOC under its title I procedures. (d) Retention by the agency for investigation Retention by a section 504 agency. (i) The EEOC does not have jurisdiction over the complaint under title I; or (ii) The EEOC has jurisdiction over the complaint, but the complainant elects to have the section 504 agency process the complaint and the section 504 agency receives a written request from the complainant for section 504 agency processing within twenty days of the date of the notice letter required to be sent pursuant to paragraph (c)(2)(ii) of this section; or (iii) The complaint alleges discrimination in both employment and in other practices or services of the respondent that are covered by section 504; or (iv) The complaint alleges a pattern or practice of employment discrimination. (2) Retention by a designated agency. (3) Processing of complaints retained by an agency. § 1640.7 Processing of charges of employment discrimination filed with the EEOC. (a) EEOC determination of jurisdiction. (1) Determine whether it has jurisdiction over the charge under title I of the ADA. If it has jurisdiction, except as provided in paragraph (b)(2) of this section, the EEOC shall process the charge pursuant to title I procedures. (2) If the EEOC determines that it does not have jurisdiction under title I, the EEOC shall promptly refer the charge to the Civil Rights Division. The Civil Rights Division shall determine if a Federal agency may have jurisdiction over the charge under section 504 or title II, and, if so, shall refer the charge to a section 504 agency or to a designated agency with jurisdiction over the complaint. (b) Retention by the EEOC for investigation. (2) Referral to an agency. § 1640.8 Processing of complaints or charges of employment discrimination filed with both the EEOC and a section 504 agency. (a) Procedures for handling dual-filed complaints or charges. (1) EEOC processing. (2) Section 504 agency processing. (i) The complaint alleges discrimination in both employment and in other practices or services of the respondent; or (ii) The complaint alleges a pattern or practice of discrimination in employment; or (iii) In the case of a complaint solely alleging employment discrimination against an individual, the complainant elects to have a section 504 agency process the complaint and the section 504 agency receives a written request from the complainant for section 504 agency processing within twenty days of the date of the notice letter required to be sent pursuant to § 1640.6(c)(2)(ii). (b) Referral to the Civil Rights Division. (c) Procedures for determining whether a complaint or charge has been dual filed. (d) Notification of deferral. (e) Exceptions. § 1640.9 Processing of complaints or charges of employment discrimination filed with a designated agency and either a section 504 agency, the EEOC, or both. (a) Designated agency processing. (1) The designated agency determines that it has jurisdiction over the complaint under title II and that neither the EEOC nor a section 504 agency (other than the designated agency, if the designated agency is also a section 504 agency) has jurisdiction over the complaint; or (2) The designated agency determines that it has jurisdiction over the complaint under section 504 and the complaint meets the requirements for processing by a section 504 agency set forth in § 1640.8(a)(2). (b) Referral by a designated agency. (1) If the designated agency determines that the EEOC is the sole agency, other than the designated agency, with jurisdiction over the complaint, the designated agency shall forward the complaint to the EEOC for processing under title I; or (2) If the designated agency determines that the section 504 agency is the sole agency, other than the designated agency, with jurisdiction over the complaint, the designated agency shall forward the complaint to the section 504 agency for processing under section 504; or (3) If the designated agency determines that both the EEOC and a section 504 agency have jurisdiction over the complaint, the designated agency shall forward the complaint to the EEOC if it determines that the complaint solely alleges employment discrimination against an individual, or it shall forward the complaint to the section 504 agency if it determines that the complaint meets the requirements for processing by a section 504 agency set out in § 1640.8(a)(2)(i) or (a)(2)(ii). § 1640.10 Section 504 agency review of deferred complaints. (a) Deferral by the section 504 agency. (1) The EEOC issues a no cause finding and a notice of right-to-sue pursuant to 29 CFR 1601.19; or (2) The EEOC enters into a conciliation agreement; or (3) The EEOC issues a cause finding and a notice of failure of conciliation pursuant to 29 CFR 1601.21, and: (i) If the recipient is not a government, governmental agency, or political subdivision, the EEOC completes enforcement proceedings or issues a notice of right-to-sue in accordance with 29 CFR 1601.28; or (ii) If the recipient is a government, governmental agency, or political subdivision, the EEOC refers the charge to the Civil Rights Division in accordance with 29 CFR 1601.29, and the Civil Rights Division completes enforcement proceedings or issues a notice of right-to-sue in accordance with 29 CFR 1601.28(d); or (4) The EEOC or, when a case has been referred pursuant to 29 CFR 1601.29, the Civil Rights Division, otherwise resolves the charge. (b) Notification of the deferring agency. (c) Agency review. (d) Provision of information. § 1640.11 EEOC review of deferred charges. (a) Deferral by the EEOC. (1) Makes a finding that a violation has not occurred; (2) Enters into a voluntary compliance agreement; (3) Following a finding that a violation has occurred, refers the complaint to the Civil Rights Division for judicial enforcement and the Civil Rights Division resolves the complaint; (4) Following a finding that a violation has occurred, resolves the complaint through final administrative enforcement action; or (5) Otherwise resolves the charge. (b) Notification of the EEOC. (c) Agency review. (d) Provision of information. § 1640.12 Standards. In any investigation, compliance review, hearing or other proceeding, the standards used to determine whether section 504 has been violated in a complaint alleging employment discrimination shall be the standards applied under title I of the ADA and the provisions of sections 501 through 504, and 510, of the ADA, as such sections relate to employment. Section 504 agencies shall consider the regulations and appendix implementing title I of the ADA, set forth at 29 CFR part 1630, and case law arising under such regulations, in determining whether a recipient of Federal financial assistance has engaged in an unlawful employment practice. § 1640.13 Agency specific memoranda of understanding. When a section 504 agency amends its regulations to make them consistent with title I of the ADA, the EEOC and the individual section 504 agency may elect to enter into a memorandum of understanding providing for the investigation and processing of complaints dual filed under both section 504 and title I of the ADA by the section 504 agency.