EEOC Final Rules on GINA, ADAAA to be Issued in Coming Months

According to the Equal Employment Opportunity Commission’s (EEOC) semiannual regulatory agenda, final rules on Title II of the Genetic Information Nondiscrimination Act (GINA) and the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) are imminent. The EEOC intends to issue a final rule on GINA sometime next month. Title II prohibits the use of genetic information in making employment decisions and limits employer access to genetic information, as well as imposes certain confidentiality obligations. The EEOC issued a proposed rule in March 2009. The final rule has already been sent to the Office of Management and Budget (OMB) for review.

In July of this year, the agency plans to issue a final rule implementing the employment provisions of the ADAAA.  The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of disability, enabling more individuals to be covered by the ADA. In September 2009, the EEOC issued proposed regulations to reflect that the expanded ADA definition of disability should be interpreted broadly.

The agency also intends to proceed with its proposed rules clarifying both the meaning of the “reasonable factors other than age” (RFOA) defense used against an Age Discrimination in Employment Act (ADEA) claim, and the disparate impact burden of proof under the ADEA. In Smith v. City of Jackson, the U.S. Supreme Court held that disparate impact claims were cognizable under the ADEA, and that an employer could use RFOA as a defense against such a claim. To that end, in March 2008, the EEOC issued a notice of proposed rulemaking (NPRM) regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed on the meaning of RFOA in this context. In light of the 2008 U.S. Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, and comments it received from its NPRM, the EEOC believed that before it issues final regulations concerning disparate impact claims under the ADEA, it needed to issue a new NPRM to address the scope of the RFOA defense. In February of this year, the EEOC did so. The comment period on this NPRM closed on April 19, 2010. The EEOC intends to issue a final rule concerning both the RFOA and disparate impact by March 2011.

By January 2011, the EEOC is slated to issue a NPRM to amend its current Title VII and Americans with Disabilities Act (ADA) regulations to address recordkeeping obligations under the Genetic Information Nondiscrimination Act (GINA). By this time the agency also intends to issue a NPRM to make employee self-identification the preferred method for collecting race and ethnicity data for EEO-1 Report purposes.

By March 2011, the agency plans to issue a final rule amending its federal sector EEOC complaint processing procedures.