### EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Ch. XIV
Semiannual Regulatory Agenda

AGENCY: Equal Employment Opportunity Commission.

ACTION: Semiannual regulatory agenda.

SUMMARY: The Equal Employment Opportunity Commission (EEOC or Commission) is publishing its semiannual regulatory agenda pursuant to Executiv e Order 12866, 58 FR 51735, and the Regulatory Flexibility Act, 5 U.S.C. chapter 6. The agenda lists all regulations that are scheduled for review or development during the next 12 months or that hav e been finalized since the publication of the last agenda.

FOR FURTHER INFORMATION CONTACT: Peggy R. Mastroianni, Associate Legal Counsel, Office of Legal Counsel, Equal Employment Opportunity Co mmission, 131 M Street NE., Washington, DC 20507; telephone (202) 663-4609.

SUPPLEMENTARY INFORMATION: The Commission has identified seven items in this regulatory agenda. For this edition of EEOC’s regulatory agenda, t he most important significant regulatory actions and a Statement of Regulatory Priorities are incl uded in The Regulatory Plan, which appears in both the online Unified Agenda and in part II of the Federal Register that includes the Unified Agenda.
Signed in Washington, DC, this 9 th 

### day of September 2010.

For the Commission.

NAME: Jacqueline A. Berrien, Chair.The 7 Regulatory Agendas

Equal Employment Opportunity Commission - Proposed Rule

Title Regulation Identifier Number Revision of Race and Ethnicity Data Collection Method 3046-AA81
Recordkeeping Under the Genetic Information Nondiscrimination Act (GINA) 3046-AA89

Equal Employment Opportunity Commission - Final Rule

Title Regulation Identifier Number Federal Sector Equal Employment Opportunity Complaint Processing 3046-AA73
Disparate Impact Burden of Proof Under the Age Discrimination in Employment Act 3046-AA76
Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act Amendments Act 3046-AA85
Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act 3046-AA87

Equal Employment Opportunity Commission - Completed Action

Title Regulation Identifier Number

Genetic Information Nondiscrimination Act 3046-AA84

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA81

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Title: Revision of Race and Ethnicity Data Collection Method Abstract: The current rule still permits employers to gather race and ethnic data about employees by visual surveys of the workforce or from employment records. This NPRM would update the rule and make employee self-identification the preferred method for collecting race and ethnic data on employees to conform with current reporting instructions for the EEO-1 Report.

Priority: Substantive, Nonsignificant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 29 CFR 1602.13 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 42 USC 2000e-8(c); 42 USC 2000e-12(a) Legal Deadline: None

Timetable:
Action Date FR Cite
NPRM 01/00/2011

Regulatory Flexibility Analysis Required: No Government Levels Affected: Local; State Small Entities Affected: Business; Governmental Jurisdictions; Organizations Federalism: No
Energy Affected: No Agency Contact: Thomas J. Schlageter Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507Phone: 202 663-4668 TDD Phone: 202 663-7026 FAX: 202 663-4639 E-Mail: thomas.schlageter@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA89

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Title: Recordkeeping Under the Genetic Information Nondiscrimination Act (GINA) Abstract: EEOC will propose to amend its current title VII and ADA recordkeeping regulations to address recordkeeping obligations under the Genetic Information Nondiscrimination Act.

Priority: Info./Admin./Other Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No CFR Citation: 29 CFR 1602 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 42 USC 2000ff Legal Deadline: None

Timetable:
Action Date FR Cite
NPRM 12/00/2010

Regulatory Flexibility Analysis Required: No Government Levels Affected: Local; State Small Entities Affected: Business; Governmental Jurisdictions; Organizations Federalism: No
Energy Affected: No Agency Contact: Thomas J. Schlageter Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507 Phone: 202 663-4668 FAX: 202 663-4639 E-Mail: thomas.schlageter@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA73

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Title: Federal Sector Equal Employment Opportunity Complaint Processing Abstract: The Commission has been reviewing the existing Federal sector EEO complaint process and considering changes that would make it more efficient and effective. While that review continues, several corrections and changes to the existing process have been proposed. They concern agency compliance with EEOC directives, variances from part 1614, further notice to complainants, and other adjustments to the current process.

Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 29 CFR 1614 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 29 USC 206(d), 633a, 791, and 794; 42 USC 2000e-16; EO 10577, 11222, 11478, and 12106; Reorganization Plan No. 1 of 1978 Legal Deadline: None

Timetable:
Action Date FR Cite
NPRM 12/21/2009 74 FR 67839NPRM Comment Period End 02/19/2010
Final Action 09/00/2011

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal Small Entities Affected: No Federalism: No Energy Affected: No Agency Contact: Thomas J. Schlageter Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507 Phone: 202 663-4668 TDD Phone: 202 663-7026 FAX: 202 663-4639 E-Mail: thomas.schlageter@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA76

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Title: Disparate Impact Burden of Proof Under the Age Discrimination in Employment Act Abstract: Prior to the Supreme Court's decision in Smith v. City of Jackson, Commission regulations interpreted the ADEA to require employers to prove that actions that had an age-based disparate impact were justified as a business necessity. Although the Court, in Smith, agreed with the EEOC that disparate impact claims were cognizable under the ADEA, it held that the defense was not business necessity but reasonable factors other than age (RFOA). The Smith Court did not specify whether the employer or employee bore the burden of proof on the RFOA defense. Accordingly, on March 31, 2008, the Commission issued an NPRM to conform Commission ADEA regulations to Smith, also taking the position that the employer bore the burden of proving the defense. Subsequently, the Supreme Court held in Meacham v. Knolls Atomic Laboratory, that employers bore the burden of proof. Thus, the EEOC's proposed regulation conforms to both Smith and Meacham. In the March 2008 NPRM, the Commission also asked whether its ADEA regulation should provide more information on the meaning of RFOA and, if so, what the regulations should say. After consideration of the public comments, and in light of the Supreme Court decisions in Smith and Meacham, the Commission issued a separate NPRM to address the scope of the RFOA defense. This NPRM is titled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act." A Final Rule will cover the issues addressed in both NPRMs.

Priority: Substantive, Nonsignificant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 29 CFR 1625.7(d) (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 29 USC 628 Legal Deadline: None

Timetable:
Action Date FR Cite
NPRM 03/31/2008 73 FR 16807 NPRM Comment Period End 05/30/2008
Final Action 07/00/2011

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State; Tribal Small Entities Affected: Business; Governmental Jurisdictions; Organizations Federalism: No
Energy Affected: No Related RINs: Related to 3046-AA87 Agency Contact: Dianna B. Johnston Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507 Phone: 202 663-4657FAX: 202 663-4639 E-Mail: dianna.johnston@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA85

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Title: Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act Amendments Act Abstract: The Americans With Disabilities Act Amendments Act of 2008 ("the Amendments Act") was signed into law on September 25, 2008, with a statutory effective date of January 1, 2009. EEOC proposes to revise its Americans With Disabilities Act (ADA) regulations and accompanying interpretative guidance (29 CFR part 1630 and accompanying appendix) in order to implement the ADA Amendments Act of 2008. Pursuant to the 2008 amendments, the definition of disability under the ADA shall be construed in favor of broad coverage to the maximum extent permitted by the terms of the ADA, and the determination of whether an individual has a disability should not demand extensive analysis. The Amendments Act rejects the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.

Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 29 CFR 1630 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 42 USC sec 12116 and sec 506 as redesignated under the ADA Amendments Act of 2008 Legal Deadline: None

Regulatory Plan:
Statement of Need: This regulation is necessary to bring the Commission's regulations into compliance with the ADA Amendments Act of 2008, which became effective January 1, 2009, and explicitly invalidated certain provisions of the existing regulations. The Amendments Act retains the terminology of the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways, therefore necessitating revision of the existing regulations and interpretive guidance contained in the accompanying "Appendix to Part 1630--Interpretive Guidance on Title I of the Americans With Disabilities Act," which are published at 29 CFR part 1630. The proposed revisions to the title I regulations and appendix are intended to enhance predictability and consistency between judicial interpretations and executive enforcement of the ADA as now amended by Congress.

Legal Basis: Section 506 of the Amendments Act, 42 U.S.C. section 12205a, gives the EEOC the authority to issue regulations implementing the definitions of disability in section 12102 of this title (including rules of construction) and the definitions in section 12103 of this title, consistent with the ADA Amendments Act of 2008.

Alternatives: None: Congress mandated issuance of regulations.

Costs and Benefits: The EEOC anticipates economic and other benefits from the rule in many areas. For example, applicants and employees will be entitled to reasonable accommodation absent undue hardship to perform jobs for which they are qualified, whereas they may have been deemed not to meet the ADA's definition of disability prior to the Amendments Act and denied accommodations as a result. Also, employers will incur benefits from their ability to retain, hire, and promote qualified personnel; increased employee attendance and productivity; avoidance of costs associated with under-performance, workplace injury, and turnover; and benefits from savings in workers' compensation and related insurance. Finally, definitional clarity brought by the amended regulation will have the economic benefit of reducing litigation and the need for costly experts to address "disability," and will streamline the issues requiring judicial attention. To the extent that employers may in some cases need to revise internal policies and procedures to reflect the broader definition of disability under the Amendments Act and train personnel to ensure appropriate compliance with the revised regulation, the Commission will continue to provide free technical assistance and outreach, including presentations and materials targeted specifically to small employers. Costs would be incurred by employers with 15 or more employees that are covered by the ADA. Applying the broader Amendments Act interpretation of when an impairment "substantially limits" a major life activity, more applicants and employees will meet the definition of disability and thus be potentially entitled to reasonable accommodations that do not pose an undue hardship. Available cost data is limited. However, using research indicating that the average cost of an accommodation is $462, the NPRM estimated the additional cost of accommodations as a result of the Amendments Act and the EEOC regulations at $74 million. Assuming these requests occur over 5 years, since it is reasonable to assume that not all new requests will occur in the same year, the annual estimated cost would be $15 million. The NPRM noted that it is possible that these estimates are at least twice as great as the actual costs would be, given research indicating that prior to the Amendments Act, fewer than half of the accommodation requests were granted. It is also important to note that both government-sponsored and private studies have repeatedly found that more than 50 percent of accommodations have zero costs for employers, both large and small.Risks: The proposed rule imposes no new or additional risk to employers. The proposal does not address risks to public health, safety, or the environment.
Timetable:
Action Date FR Cite
NPRM 09/23/2009 74 FR 48431 NPRM Comment Period End 11/23/2009
Final Action 12/00/2010

Additional Information: The EEOC plans to issue a final rule by the end of December, 2010, subject to expedited E.O. 12866 review by OMB/OIRA.

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State; Tribal Small Entities Affected: Business; Governmental Jurisdictions; Organizations Federalism: No
Energy Affected: No Agency Contact: Christopher Kuczynski Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507 Phone: 202 663-4665 TDD Phone: 202 663-7026 FAX: 202 663-4639 E-Mail: christopher.kuczynski@eeoc.gov Agency Contact: Jeanne Goldberg Senior Attorney Advisor Equal Employment Opportunity Commission 131 M Street NE Washinigton , DC 20507 Phone: 202 663-4693 FAX: 202 663-4639 E-Mail: jeanne.goldberg@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA87

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Title: Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act Abstract: On March 31, 2008, the EEOC published a Notice of Proposed Rulemaking (NPRM) concerning the disparate impact burden of proof under the Age Discrimination in Employment Act. 73 FR 16807 (March 31, 2008). In addition to requesting public comment on the proposed rule, the Commission asked whether regulations should provide more information on the meaning of "reasonable factors other than age" (RFOA) and, if so, what the regulations should say. After consideration of the public comments, and in light of the Supreme Court decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 554 U.S. ___, 128 S. Ct. 2395 (2008), the Commission issued this NPRM to address the scope of the RFOA defense. Accordingly, before finalizing its regulations concerning disparate impact burden of proof under the ADEA, the Commission will conduct this rulemaking to amend its regulations concerning RFOA.

Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No CFR Citation: 29 CFR 1625.7(b),(c) (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 29 USC 628 Legal Deadline: None

Timetable:
Action Date FR Cite
NPRM 02/18/2010 75 FR 7212 NPRM Comment Period End 04/19/2010
Final Action 07/00/2011Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State; Tribal Small Entities Affected: Business; Governmental Jurisdictions; Organizations Federalism: No
Energy Affected: No Agency Contact: Dianna B. Johnston Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507 Phone: 202 663-4657 FAX: 202 663-4639 E-Mail: dianna.johnston@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA84

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Title: Genetic Information Nondiscrimination Act Abstract: Section 211 of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. section 2000ff-10, requires the Equal Employment Opportunity Commission to issue regulations implementing title II of the Act. Title II prohibits the use of genetic information in making employment decisions and limits employer access to genetic information. The Act also imposes confidentiality obligations on employers and other covered entities (employment agencies, labor unions, and training programs) that possess genetic information.

Priority: Other Significant Agenda Stage of Rulemaking: Completed Action Major: No Unfunded Mandates: No CFR Citation: 29 CFR 1635 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 42 USC sec 2000ff-10 Legal Deadline:
Action Source Description Date

Other Statutory As set forth in section 211 of the Genetic Information Nondiscrimination Act 05/21/2009

Timetable:
Action Date FR Cite
NPRM 03/02/2009 74 FR 9056 NPRM Comment Period End 05/01/2009
Final Action 11/09/2010 75 FR 68912

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State Small Entities Affected: No Federalism: No Energy Affected: No Agency Contact: Christopher Kuczynski Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507 Phone: 202 663-4665 TDD Phone: 202 663-7026 FAX: 202 663-4639 E-Mail: christopher.kuczynski@eeoc.gov Agency Contact: Kerry Leibig Acting Assistant Legal Counsel, Office of the Legal Counsel Equal Employment Opportunity Commission 131 M Street NE Washington , DC 20507 Phone: 202 663-4516E-Mail: kerry.leibig@eeoc.gov