Upcoming EEOC Regulatory Agenda

According to the Equal Employment Opportunity’s (EEOC) Semiannual Regulatory Plan and Agenda, a final rule implementing the employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA) will be issued within in the next two weeks. 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 EEOC’s regulatory agenda, which lists all of the rules under active consideration for the upcoming year as well as those rules enacted within the past six months, states that a finial ADAAA rule will be issued before the year is out.

In addition, the agency 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 stated that before issuing final regulations concerning disparate impact claims under the ADEA, it would issue a new NPRM to address the scope of the RFOA defense. In February of this year, the EEOC did just that. The comment period on that NPRM ended in April 2010. Final rules clarifying both elements of the ADEA are scheduled to released by July 2011.

As for proposed rules, the EEOC plans to amend its current Title VII and ADA recordkeeping regulations to address recordkeeping obligations under the Genetic Information Nondiscrimination Act (GINA).  The agency issued a final rule on the employment provisions of GINA last month.

Also at the proposed rule stage, the agency intends to issue regulations revising its race and ethnicity data collection method to conform with current reporting instructions for the EEO-1 Report, making employee self-identification the preferred method for collecting race and ethnic data on employees.  According to the EEOC, current regulations allow employers to gather race and ethnic data about employees by visual surveys of the workforce or from employment records.