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. For this edition of EEOC’s regulatory agenda, the most important significant regulatory action 

and a Statement of Regulatory and Deregulatory Priorities are included in The Regulatory Plan, which 

appears in both the online Unified Agenda and in part II of the Federal Register that includes the Unified 

Regulations.gov Friday, January 20, 2012 Unified Agenda
Agenda. EEOC’s Regulatory Agenda is published online at www.reginfo.gov and www.regulations.gov. 

Signed in Washington, DC, this 8th day of September 2011. 

For the Commission. 

NAME: Jacqueline A. Berrien,

Chair. 

Regulations.gov Friday, January 20, 2012 Unified Agenda
The 7 Regulatory Agendas

Equal Employment Opportunity Commission - Proposed Rule

Title

Regulation 

Identifier 

Number

Revision of Race and Ethnicity Data Collection Method 3046-AA81

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

Equal Employment Opportunity Commission - Final Rule

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 - Completed Action

Title

Regulation 

Identifier 

Number

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 ( 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 provides for employee self-identification as 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

Timetable:

Action Date FR Cite

NPRM 12/00/2011 

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 20507 

Phone: 202 663-4668 

TDD Phone: 202 663-7026

FAX: 202 663-4679

E-Mail: thomas.schlageter@eeoc.gov

Regulations.gov Friday, January 20, 2012 Unified Agenda
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, so that EEOC's disclosure obligations comport with the Openness Promotes

Effectiveness in Our National Government Act of 2007, and the Electronic FOIA Amendments of 1996. The goal of the revisions

is to make the FOIA regulation more requester-friendly. The revisions will also 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: Proposed 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

Timetable:

Action Date FR Cite

NPRM 12/00/2011 

Regulatory 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 

Phone: 202 663-4634 

FAX: 202 663-4679

E-Mail: stephanie.garner@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 

Phone: 216 522-2001 

FAX: 216 522-7395

E-Mail: draga.anthony@eeoc.gov

Agency Contact: James Allison 

Senior Attorney

Equal Employment Opportunity Commission

131 M Street NE

Washington , DC 20507 

Phone: 202 663-4661 

TDD Phone: 202 663-7026

FAX: 202 663-4679

E-Mail: james.allison@eeoc.gov

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

 View Related Documents

Title: Federal Sector Equal Employment Opportunity Complaint Processing

Abstract: The Commission continues its review of the existing Federal sector EEO complaint process, considering alternatives,

and consulting stakeholders about possible reforms that would address concerns about the timeliness of complaint processing,

the quality of agency investigations, the proper role the Commission and the federal agencies should play in the complaint

process, and the hearings and appellate review process. The current NPRM constitutes the Commission's initial step in that

review. The Commission will consider additional reforms, including regulatory changes, during the next year.

Regulations.gov Friday, January 20, 2012 Unified Agenda
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); 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

Timetable:

Action Date FR Cite

NPRM 12/21/2009 74 FR 67839 

NPRM Comment Period End 02/19/2010 

Final Action 07/00/2012 

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 

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 

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 current EEOC regulations do 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 FR 16807 (March 31, 2008). Subsequently, the Supreme

Court held in Meacham v. Knolls Atomic Laboratory, 554 U.S. 84, 128 S. Ct. 2395 (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. A final rule will be

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) has

been 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: 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

Regulations.gov Friday, January 20, 2012 Unified Agenda
Regulatory Plan:

Statement of Need: Current EEOC regulations interpret the ADEA as prohibiting an employment practice that has a disparate

impact on individuals within the protected age group unless it is 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 is revising 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" has been merged with this item. In this final rule, the EEOC is also revising

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 U.S.C. section 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 12/00/2011 

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 

Phone: 202 663-4657 

FAX: 202 663-4679

E-Mail: dianna.johnston@eeoc.gov

Agency Contact: Lyn McDermott 

Senior Attorney Advisor, Office of Legal Counsel

Equal Employment Opportunity Commission

131 M Street NE

Washington , DC 20507 

Phone: 202 663-4663 

FAX: 202 663-4679

E-Mail: lyn.mcdermott@eeoc.gov

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

 View Related Documents

Regulations.gov Friday, January 20, 2012 Unified Agenda
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 (GINA).

Priority: Info./Admin./Other Agenda Stage of Rulemaking: Final 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 06/02/2011 76 FR 31892 

NPRM Comment Period End 08/01/2011 

Final Action 12/00/2011 

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 20507 

Phone: 202 663-4668 

FAX: 202 663-4679

E-Mail: thomas.schlageter@eeoc.gov

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

 View Related Documents

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: Economically Significant Agenda Stage of Rulemaking: Completed Action

Major: Yes 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

Timetable:

Action Date FR Cite

NPRM 09/23/2009 74 FR 48431 

NPRM Comment Period End 11/23/2009 

Final Action 03/25/2011 76 FR 16978 

Final Action Effective 05/24/2011 

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

Small Entities Affected: Business; Governmental Jurisdictions;

Organizations Federalism: Yes

Energy Affected: No

Agency Contact: Christopher Kuczynski 

Regulations.gov Friday, January 20, 2012 Unified Agenda
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: 202 663-4679

E-Mail: christopher.kuczynski@eeoc.gov

Agency Contact: Jeanne Goldberg 

Senior Attorney Advisor, Office of Legal Counsel

Equal Employment Opportunity Commission

131 M Street NE

Washinigton , DC 20507 

Phone: 202 663-4693 

FAX: 202 663-4679

E-Mail: jeanne.goldberg@eeoc.gov

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

 View Related Documents

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

Abstract: This item was merged with RIN 3046-AA76, which will be the RIN used to identify the Final Rule. 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. 84, 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. A Final Rule will cover the issues addressed in both

NPRMs.

Priority: Other Significant Agenda Stage of Rulemaking: Completed Action

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 

Merged With 3046-AA76 07/26/2011 

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: Merge with 3046-AA76

Agency Contact: Dianna B. Johnston 

Senior Attorney Advisor, Office of Legal Counsel

Equal Employment Opportunity Commission

131 M Street NE

Washington , DC 20507 

Phone: 202 663-4657 

FAX: 202 663-4679

E-Mail: dianna.johnston@eeoc.gov

Agency Contact: Lyn McDermott 

Senior Attorney Advisor, Office of Legal Counsel

Equal Employment Opportunity Commission

131 M Street NE

Washington , DC 20507 

Phone: 202 663-4663 

Regulations.gov Friday, January 20, 2012 Unified Agenda
FAX: 202 663-4679

E-Mail: lyn.mcdermott@eeoc.gov

Regulations.gov Friday, January 20, 2012 Unified Agenda