## 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 Executive 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 have been finalized since the publication of the last

agenda.

FOR FURTHER INFORMATION CONTACT: Peggy R. Mastroianni, Legal Counsel, Office of Legal

Counsel, Equal Employment Opportunity Commission, 131 M Street NE., Washington, DC 20507;

telephone (202) 663-4609.

SUPPLEMENTARY INFORMATION: The Commission has identified seven items in this regulatory

## agenda. EEOC’s Regulatory Agenda is published online at www.reginfo.gov and www.regulations.gov.

Signed in Washington, DC, this 9th day of October 2012.

Fo r th e Commission.

NAME: Jacqueline A. Berrien,

Chair.The 9 Regulatory Agendas

Equal Employment Opportunity Commission - Proposed Rule

Title Regulation
Identifier
Number

Revision of Race and Ethnicity Data Collection Method 3046-AA81

Revisions to Procedures for 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 3046-AA91

Revisions to Procedures for Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers Holding Government Contracts or Subcontracts 3046-AA92

Revisions to Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial
Assistance 3046-AA93

Revisions to the Federal Sector's Affirmative Employment Obligations of Individuals with Disabilities Under Section 501 of the Rehabilitation Act of 1973, as Amended 3046-AA94

Equal Employment Opportunity Commission - Final Rule

Title Regulation
Identifier
Number

Revisions to EEOC's Freedom of Information Act (FOIA) Regulation To Promote Openness and Electronic Access 3046-AA90

Equal Employment Opportunity Commission - Completed Action

Title Regulation
Identifier
Number

Federal Sector Equal Employment Opportunity Complaint Processing 3046-AA73

Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act 3046-AA76

Recordkeeping Under the Genetic Information Nondiscrimination Act (GINA) 3046-AA89

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

View Related Documents

Title: Revision of Race and Ethnicity Data Collection Method

Abstract: The current rule permits employers to gather race and ethnicity data about employees by visual surveys of the workforce or from employment records. This rulemaking would propose to make employee self-identification the method for collecting race and ethnicity data on employees.

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

Regulatory Plan:

Statement of Need: When the EEO-1 form was last revised, the Instruction Booklet was also revised to change the method of data collection from visual surveys of the workforce or employment records to employee self-identification as the preferred method of collection. The revised form and Instruction Booklet were approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act in 2005 and have been used by reporting entities since 2007. The regulatory language concerning data collection was not amended at that time and is inconsistent with the data collection methodology contained in the Instruction Booklet approved by OMB. This rulemaking proposes to eliminate the existing inconsistency by establishing a single data collection methodology in the regulation, to which the Instruction Booklet would be conformed.

Legal Basis: Every employer, employment agency, and labor organization shall "make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed . . . and make such reports there from as the Commission shall prescribe by regulation. . . ." 29 USC 2000e-8(c).Alternatives: The Commission will consider all alternatives proposed by public comments.

Costs and Benefits: The benefit of this change to the regulatory language will be the collection of more accurate data and the elimination of contradictory language between the EEO-1 Instruction Booklet and the existing regulation. To minimize any burden, we intend to delay the effective date of the change until completion of the pending revisions to the survey forms and instruction booklets. Because those changes are expected to require a re-survey of the workforce, the cost of the data collection methodology change will be a minimal additional cost at that time.

Risks: The proposed changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 04/00/2013

Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: No

Small Entities Affected: Business; 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 Washington , DC 20507
Phone: 202 663-4668
TDD Phone: 202 663-7026

FAX: 202 663-4679
E-Mail: thomas.schlageter@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA91

View Related Documents

Title: Revisions to Procedures for 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

Abstract: The EEOC has a joint regulation with the Department of Justice (DOJ) to explain how Federal agencies that provide financial assistance should process disability-based employment discrimination complaints/charges against entities subject to both title I of the Americans with Disabilities Act, as amended (ADA) (prohibiting disability-based employment discrimination by employers with 15 or more employees), and section 504 of the Rehabilitation Act (Section 504) (prohibiting disability-based discrimination in programs or activities receiving Federal financial assistance).1 This proposed rule would amend this joint regulation to revise the definitions of certain terms and clarify the procedures for referring these complaints/charges between agencies with responsibility for enforcing title I of the ADA and section 504. These revisions would create consistency between this regulation and two other coordination regulations (29 CFR part 1641 and 29 CFR part 1691), as well as with the recently revised Memorandum of Understanding (MOU) between the EEOC and the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII of the Civil Rights Act of 1964, as amended, and/or Executive Order 11246. ____________________ 1 The proposed rule would also incorporate provisions established by the DOJ's rule on title II of the ADA (which prohibits discrimination on the basis of disability in all programs and activities of State and local government entities) for coordinating the processing of discrimination complaints that: (1) Fall within the jurisdiction of title II and title I (but are not covered by section 504); and (2) fall within the jurisdiction of title II, but not title I (whether or not they are covered by section 504). See 28 CFR 35.171(b)(2) and (3). The revisions described above would not impact the portions of the regulation addressing title II.

Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No

CFR Citation: 29 CFR 1640 (To search for a specific CFR, visit the Code of Federal Regulations )
Legal Authority: 5 USC 301; 29 USC 794(d); 42 USC 12117(b); EO 12067
Legal Deadline: None

Regulatory Plan:

Statement of Need: This regulation was identified as needing revision during a retrospective analysis of existing rules that took place in 2011 under Executive Order 13563. It is identified in EEOC's Final Plan for Retrospective Analysis of Existing Rules available at: http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm

Legal Basis:

Alternatives: The EEOC will consider all alternatives offered by the public commenters.Costs and Benefits: These procedures govern the agencies' internal handling of complaints/charges of employment discrimination and do not impose any regulatory costs on employers or complainants/charging parties. The revised procedures, however, will provide a net benefit to stakeholders and the agencies by creating consistency between this coordination regulation and others.

Risks: The proposed changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 10/00/2013

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State

Small Entities Affected: No Federalism: No Energy Affected: No

Related RINs: Related to 3046-AA92; Related to 3046-AA93 Related Agencies: Joint: DOJ Agency Contact: Corbett L. Anderson Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4579

FAX: 202 663-4679
E-Mail: corbett.anderson@eeoc.gov Agency Contact: Kerry Leibig Senior Attorney Advisor, Office of the Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4516

FAX: 202 663-4679
E-Mail: kerry.leibig@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA92

View Related Documents

Title: Revisions to Procedures for Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers Holding Government Contracts or Subcontracts

Abstract: The EEOC has a joint regulation with the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP) to coordinate the processing of disability-based employment discrimination complaints/charges filed against employers holding Government contracts or subcontracts, where the complaints/charges appear to state a claim under both section 503 of the Rehabilitation Act (Section 503) (requiring affirmative action and prohibiting disability-based employment discrimination by Federal Government contractors and subcontractors), and title I of the ADA (prohibiting disability-based employment discrimination by employers with 15 or more employees). This proposed rule would amend this joint regulation to revise the definition of certain terms and clarify the procedures for referring these complaints/charges between the agencies with responsibility for enforcing section 503 and title I of the ADA. These revisions would create consistency between this regulation and two other coordination regulations (29 CFR part 1640 and 29 CFR part 1691), as well as the recently revised Memorandum of Understanding between EEOC and OFCCP. This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII of the Civil Rights Act of 1964, as amended
and/or Executive Order 11246.

Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No

CFR Citation: 29 CFR 1641 (To search for a specific CFR, visit the Code of Federal Regulations )
Legal Authority: 42 USC 12117(b); EO 12067
Legal Deadline: None

Regulatory Plan:

Statement of Need: This regulation was identified as needing revision during a retrospective analysis of existing rules that took place in 2011 under Executive Order 13563. It is identified in EEOC's Final Plan for Retrospective Analysis of Existing Rules available at: http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm

Legal Basis:Alternatives: The EEOC will consider all alternatives offered by the public commenters.

Costs and Benefits: These procedures govern the agencies' internal handling of complaints/charges of employment discrimination and do not impose any regulatory costs on employers or complainants/charging parties. The revised procedures, however, will provide a net benefit to stakeholders and the agencies by creating consistency between this coordination regulation and others.

Risks: The proposed changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 10/00/2013

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State

Small Entities Affected: No Federalism: No Energy Affected: No

Related RINs: Related to 3046-AA91; Related to 3046-AA93 Related Agencies: Joint: OFCCP; Joint: DOJ Agency Contact: Corbett L. Anderson Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4579

FAX: 202 663-4679
E-Mail: corbett.anderson@eeoc.gov Agency Contact: Kerry Leibig Senior Attorney Advisor, Office of the Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4516

FAX: 202 663-4679
E-Mail: kerry.leibig@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA93

View Related Documents

Title: Revisions to Procedures for Complaints of Employment Discrimination Filed Against Recipients of Federal Financial

Assistance

Abstract: The EEOC has a joint regulation with the Department of Justice (DOJ) to explain how Federal agencies that grant financial assistance or revenue sharing funds should process complaints of employment discrimination subject to various EEO statutes if the complaints allege discrimination that is also prohibited by title VII of the Civil Rights Act of 1964, as amended (Title VII), or the Equal Pay Act of 1963 (EPA).1 This proposed rule would amend this joint regulation to revise the definitions of certain terms and clarify the procedures for handling these complaints. The revisions would create consistency between this regulation and two other coordination regulations (29 CFR part 1640 and 29 CFR part 1641), as well as the recently revised Memorandum of Understanding between EEOC and the Department of Labor's Office Federal Contract Compliance Programs. This MOU addresses the investigation and processing of complaints or charges alleging employment discrimination that may fall within the jurisdiction of title VII and/or Executive Order 11246. ____________ 1 The relevant EEO statutes are: Title VI of the Civil Rights Act of 1964, title IX of 1972, the State and Local Fiscal Assistance Act of 1972, as amended (the revenue sharing act), and provisions similar to title VI and title IX in Federal grant statutes to the extent they prohibit discrimination on the basis of race, color, religion, sex, or national origin.

Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No

CFR Citation: 29 CFR 1691 (To search for a specific CFR, visit the Code of Federal Regulations )
Legal Authority: EO 12250; EO 12067
Legal Deadline: None

Regulatory Plan:

Statement of Need: This regulation was identified as needing revision during a retrospective analysis of existing rules that took place in 2011 under Executive Order 13563. It is identified in EEOC's Final Plan for Retrospective Analysis of Existing Regulations available at: http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm

Legal Basis:Alternatives: The EEOC will consider all alternatives offered by the public commenters.

Costs and Benefits: These procedures govern the agencies' internal handling of complaints of employment discrimination and do not impose any regulatory costs on employers or complainants. The revised procedures, however, will provide a net benefit to stakeholders and the agencies by creating consistency between this coordination regulation and others.

Risks: The proposed changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 10/00/2013

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal; Local; State

Small Entities Affected: No Federalism: No Energy Affected: No

Related RINs: Related to 3046-AA91; Related to 3046-AA92 Related Agencies: Joint: DOJ Agency Contact: Corbett L. Anderson Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4579

FAX: 202 663-4679
E-Mail: corbett.anderson@eeoc.gov Agency Contact: Kerry Leibig Senior Attorney Advisor, Office of the Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4516

FAX: 202 663-4679
E-Mail: kerry.leibig@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA94

View Related Documents

Title: Revisions to the Federal Sector's Affirmative Employment Obligations of Individuals with Disabilities Under Section 501 of the Rehabilitation Act of 1973, as Amended

Abstract: Section 501 of the Rehabilitation Act, as amended (Section 501), prohibits discrimination against individuals with disabilities in the Federal Government. The EEOC's regulations implementing section 501, as set forth in 29 CFR part 1614, require Federal agencies and departments to be "model employers" of individuals with disabilities."1 This proposed rule would revise the Federal Government's affirmative employment obligations in 29 CFR part 1614, to include a more detailed explanation of how Federal agencies and departments should "give full consideration to the hiring, placement and advancement of qualified individuals with disabilities."2 The revisions would be informed by the discussion in Management Directive 715 of the tools Federal agencies should use to establish goals for the employment and advancement of individuals with disabilities. The revisions may also include goals consistent with Executive Order 13548 to increase the employment of individuals with disabilities, with a particular focus on the employment of individuals with targeted disabilities. __________________ 1 29 CFR 1614.203(a). 2 Id.

Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No

CFR Citation: 29 CFR 1614.203(a) (To search for a specific CFR, visit the Code of Federal Regulations )
Legal Authority: 29 USC 791(b)
Legal Deadline: None

Regulatory Plan:

Statement of Need: Pursuant to section 501 of the Rehabilitation Act, the Commission is authorized to issue such regulations as it deems necessary to carry out its responsibilities under this Act. Executive Order 13548 called for increased efforts by Federal agencies and departments to recruit, hire, retain, and return individuals with disabilities to the Federal workforce.

Legal Basis:

Alternatives: The EEOC will consider all alternatives offered by public commenters.Costs and Benefits: Any costs that might result would only be borne by the Federal Government. The revisions would contribute to increased employment of individuals with disabilities.

Risks: The proposed changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 10/00/2013

Regulatory Flexibility Analysis Required: No Government Levels Affected: Federal

Small Entities Affected: No Federalism: No Energy Affected: No

Related RINs: Related to 3046-AA73 Agency Contact: Christopher Kuczynski Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4665
TDD Phone: 202 663-7026

FAX: 202 663-4679
E-Mail: christopher.kuczynski@eeoc.gov

Equal Employment Opportunity Commission ( EEOC ) RIN: 3046-AA90

View Related Documents

Title: Revisions to EEOC's Freedom of Information Act (FOIA) Regulation To Promote Openness and Electronic Access

Abstract: This NPRM would revise 29 CFR 1610 (Availability of Records: Production or Disclosure Under FOIA), usually referred to as EEOC's FOIA regulation. These revisions will inform the public of the actions the EEOC has instituted pursuant to the Openness Promotes Effectiveness in Our National Government Act of 2007 and the Electronic FOIA Amendments of 1996 (E-FOIA Act of 1996). The revisions will also give public notice of EEOC utilization of a multitrack FOIA processing procedure, as permitted by the E-FOIA Act of 1996. In addition, the revisions reflect the transfer of FOIA responsibility in EEOC's field offices from the Regional Attorneys to the District Directors.

Priority: Info./Admin./Other Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No

CFR Citation: 29 CFR 1610 (To search for a specific CFR, visit the Code of Federal Regulations )
Legal Authority: 5 USC 552
Legal Deadline: None

Regulatory Plan:

Statement of Need: The current FOIA regulation needs to be updated in order to bring it into compliance with the Openness Promotes Effectiveness in Our National Government Act of 2007, and aspects of the Electronic FOIA Act of 1996. The NPRM would also address one of the issues raised in President Obama's January 21, 2009, memorandum on FOIA entitled "Creating a New Era of Open Government," namely, the need for Agencies to use modern technology to keep citizens informed.

Legal Basis: 5 USC 552(a)(3)(A) instructs each agency to promulgate FOIA regulations.

Alternatives: The Commission will consider all alternatives proposed by public comments.

Costs and Benefits: Based on the information currently available, we anticipate that the proposed rule will only impose costs on the EEOC. There are no new or additional costs to individuals requesting information under the FOIA or to any other entity. The benefits include a more streamlined, organized, and readable regulation that will improve the system under which FOIA requests are made and processed.

Risks: The proposed changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 09/04/2012 77 FR 53814

NPRM Comment Period End 11/05/2012

Final Action 06/00/2013Regulatory Flexibility Analysis Required: No Government Levels Affected: No

Small Entities Affected: No Federalism: No Energy Affected: No Agency Contact: Stephanie D. Garner Assistant Legal Counsel, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4634

FAX: 202 663-4679
E-Mail: stephanie.garner@eeoc.gov Agency Contact: Gary Hozempa Senior Attorney Advisor, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4666

FAX: 202 663-4679
E-Mail: gary.hozempa@eeoc.gov Agency Contact: Draga G. Anthony Attorney Advisor, Office of Legal Counsel Equal Employment Opportunity Commission 1240 E. 9th Street Suite 3001, Cleveland, OH 44199 Cleveland , OH 44199
Phone: 216 522-2001

FAX: 216 522-7395
E-Mail: draga.anthony@eeoc.gov

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

View Related Documents

Title: Federal Sector Equal Employment Opportunity Complaint Processing

Abstract: In January 2012, the Commission approved submission of a draft final rule to OMB under EO 12866 and to all other agencies for interagency coordination under EO 12067. The interagency coordination period under EO 12067 has concluded. The Commission is engaged in further review, beyond this rulemaking, of the Federal sector EEO complaint process in order to improve its quality and efficiency. Areas being examined include the timeliness and quality of complaint processing, the timeframes for filing complaints, perceived conflicts of interest in the way investigations are conducted, the proper role for the Commission and the Federal agencies in the complaint process, alternatives to the current agency investigation process, and the hearings and appellate review process. The current rulemaking constitutes the Commission's initial step in that review. The Commission will consider additional reforms, including, but not limited to, regulatory changes.

Priority: Other Significant Agenda Stage of Rulemaking: Completed Action
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); 29 USC 633a; 29 USC 791; 29 USC 794; 42 USC 2000e-16; EO 10577; EO 11222; EO 11478; EO 12106; Reorganization Plan No. 1 of 1978; 42 USC 2000ff-6(e)
Legal Deadline: None

Regulatory Plan:

Statement of Need: Fifteen discrete changes are made to various parts of the complaint process. Some provisions clarify existing requirements or correct typographical errors or omissions; others revise provisions due to case law developments. Some accommodate electronic filing. Others adjust timeframes or require notices. One allows agencies to obtain temporary variances from parts of the required process. All changes will make the process more fair and efficient.

Legal Basis: Title VII of the Civil Rights Act of 1964 authorizes EEOC "to issue such rules, regulations, orders, andinstructions as it deems necessary and appropriate to carry out its responsibilities under . . . section [717]." 42 USC 2000e16(b).

Alternatives: The Commission has considered all alternatives proposed by the public comments.

Costs and Benefits: Based on the information currently available, we anticipate that most of the changes will have no cost and will benefit users of the process by correcting or clarifying the requirements. Any costs that might result would only be borne by the Federal Government. Requiring an agency that fails to comply with time limits for completing an investigation tonotify the complainant of that failure will have minimal cost but will provide an incentive for completing investigations timely while protecting the complainant's rights. Electronic filing will reduce costs and time. The cost of variances will depend upon what the individual agency proposes and is likely to be a savings; the benefit of such variances is that potential changes to the process will be tested before they are implemented Governmentwide.

Risks: The changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 12/21/2009 74 FR 67839

NPRM Comment Period End 02/19/2010

Final Action 07/25/2012 77 FR 43498

Additional Information: Includes Retrospective Review under E.O. 13563.

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 Washington , DC 20507
Phone: 202 663-4668
TDD Phone: 202 663-7026

FAX: 202 663-4679
E-Mail: thomas.schlageter@eeoc.gov Agency Contact: Kathleen Oram Senior Attorney Advisor, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4681

FAX: 202 663-4679
E-Mail: kathleen.oram@eeoc.gov

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

View Related Documents

Title: Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act

Abstract: Prior to the Supreme Court's decision in Smith v. City of Jackson, 544 U.S. 228 (2005), 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. On March 31, 2008, the Commission issued a Notice of Proposed Rulemaking (NPRM) to conform Commission ADEA regulations to Smith, also taking the position that the employer bore the burden of proving the defense. Because previous EEOC regulations did not define the meaning of "RFOA," the NPRM also asked whether regulations should provide more information on the meaning of "reasonable factors other than age" and, if so, what the regulations should say. 73 Fed. Reg. 16807 (March 31, 2008). Subsequently, the Supreme Court held in Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008), that employers have the RFOA burdens of production and persuasion. After consideration of the public comments, and in light of the Supreme Court decisions, the Commission issued a second NPRM on February 18, 2010 to address the scope of the RFOA defense. 75 Fed. Reg. 7212. A final rule was issued addressing the issues covered in both NPRMs and conforming to both Smith and Meacham. The RIN associated with the NPRM titled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act" (RIN 3046-AA87) was merged with this item (RIN 3046-AA76), which will be the RIN used to identify the final rule.

Priority: Other Significant Agenda Stage of Rulemaking: Completed Action
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

Regulatory Plan:

Statement of Need: Previous EEOC regulations interpreted the ADEA as prohibiting an employment practice that has adisparate impact on individuals within the protected age group unless it was justified as a business necessity. The Supreme Court's holding in Smith v. City of Jackson validated the Commission's position that disparate impact analysis applies in ADEA cases. The holding, however, differed from the Commission's position that the business necessity test was the appropriate standard for determining the lawfulness of a practice that had an age-based disparate impact. The EEOC revised its regulation to reflect the Smith decision. Moreover, as noted above, a related item (RIN #3046-AA87) entitled "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act" was merged with this item. In this final rule, the EEOC also revised its regulations to address the scope of the RFOA defense.

Legal Basis: The ADEA authorizes the EEOC "to issue such rules and regulations it may consider necessary or appropriate for carrying out this chapter...." 29 USC 628.

Alternatives: The Commission has considered all alternatives proposed by the public comments.

Costs and Benefits: Based on the information currently available, the EEOC does not anticipate that the rule will have significant economic effects. The purpose of the rule is to help explain the implications of recent Supreme Court decisions and the type of conduct that would support an RFOA defense in court. It therefore does not directly require any action on the part of covered entities. The regulation makes clear that the employer's burden is to prove the RFOA, rather than the more stringent business necessity defense. Further, the rule instructs covered entities what to do if they want to ensure that their practices are based on reasonable factors other than age. The rule does not expand the coverage of the ADEA to additional employers or employees, and does not include reporting, recordkeeping, or other requirements for compliance. Costs would result primarily from voluntary modifications to covered entities' business practices made to protect against disparate-impact liability. Modifications may include performing disparate impact analyses of business practices before they are adopted, providing guidance to decisionmakers on how to implement the practice, and evaluating other options to mitigate harm. The costs will be minimal, because these actions are required, for purposes of establishing the RFOA defense, only to the extent that a reasonable employer would perform them under the circumstances. Many covered entities already routinely perform them. To the extent that the regulation motivates employers to take additional actions, free resources minimize the cost of doing so. This revision, informed by the comments of stakeholders, will be beneficial to courts, employers, and employees seeking to interpret, understand, and comply with the ADEA.

Risks: The rule does not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 03/31/2008 73 FR 16807

NPRM Comment Period End 05/30/2008

Final Action 03/30/2012 77 FR 19080

Additional Information: Includes Retrospective Review under E.O. 13563.

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 Senior Attorney Advisor, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4657

FAX: 202 663-4679
E-Mail: dianna.johnston@eeoc.gov Agency Contact: Aaron Konopasky Attorney-Advisor, Office of Legal Counsel Equal Employment Opportunity Commission 131 M Street NE., Washington, DC 20507 Washington , DC 20507
Phone: 202 663-4127

FAX: 202 663-4679
E-Mail: aaron.konopasky@eeoc.gov

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

View Related Documents

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

Priority: Info./Admin./Other Agenda Stage of Rulemaking: Completed Action
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

Regulatory Plan:

Statement of Need: The Commission updated its recordkeeping regulations to require preservation of records necessary to
the enforcement of GINA.

Legal Basis: Every employer, employment agency, and labor organization shall "make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed [and] preserve such records forsuch periods . . . as the Commission shall prescribe by regulation. . . ." 42 USC 2000e-8(c) as incorporated by 42 USC 2000ff6(a).

Alternatives: The Commission considered all alternatives proposed by public comments.

Costs and Benefits: Based on the information currently available, we anticipate that the rule will have minimal cost. The rule does not require the creation of any records. It merely requires that employment records already kept or used be retained for a period of one year and that, in case a charge is filed, records relevant to the charge be maintained until final disposition of the charge. Because we are using the same recordkeeping requirements under GINA that we use under title VII of the Civil Rights Act, and because all entities subject to GINA are already subject to title VII, covered entities are already required by an existing regulation to maintain these records for the basic one-year period. The only change is that they will now have to keep records relevant to a GINA charge until final disposition of the charge. We estimate that this revision will require a minor change to covered entities' recordkeeping systems.

Risks: The changes do not affect risks to public health, safety, or the environment.

Timetable:

Action Date FR Cite

NPRM 06/02/2011 76 FR 31892

NPRM Comment Period End 08/01/2011

Final Action 02/03/2012 77 FR 5396

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 Washington , DC 20507
Phone: 202 663-4668

FAX: 202 663-4679
E-Mail: thomas.schlageter@eeoc.gov