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  What You Should Know: EEOC Regulations, Subregulatory Guidance and other Resource Documents

                      
                        

          
          
                        What You Should Know:  EEOC Regulations, Subregulatory Guidance and other Resource Documents
            

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              Issuing Authority
          

  This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.
        

  OLC Control Number
                                              EEOC-NVTA-0000-25


        

  Concise Display Name
                                              What You Should Know:  EEOC Regulations, Subregulatory Guidance and other Resource Documents


        

  Issue Date
                                              05-05-2016


        

  General Topics
                                              Regulations and Guidance


                

  Summary
                                              This document addresses the different types of documents that the EEOC issues, what deference they may (or may not) receive from courts, and what processes are used for their approval.


        

  Citation
                                              Title VII, EPA, ADEA, ADA, GINA, 29 CFR Part 1601, 29 CFR Part 1621, 29 CFR Part 1626


        

  Document Applicant
                                              Employees, Employers, Applicants, HR Practitioners, Attorneys


        

  Previous Revision
                                              No


        Disclaimer
          

  The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.EEOC issues regulations, guidance and resource documents to implement federal workplace discrimination laws, help employees and employers understand their rights and obligations, and inform the public of EEOC's policy positions.  These documents are developed and approved through different procedures under different authorities, as explained below.

**Regulations** implement the federal workplace discrimination laws.

**Formal Public Comment and Approval by the Commission:**

Before the Commission votes to issue a final substantive regulation, whether legislative or interpretive, EEOC issues a Notice of Proposed Rulemaking (NPRM) for public comment in the Federal Register, and sometimes even an Advanced Notice of Proposed Rulemaking (ANPRM) to gather information about the relevant issues. Final regulations, as well as ANPRMs and NPRMS, must be approved by a majority of Commissioners. In addition, all significant regulatory actions, whether legislative or interpretive, are approved by the Office of Management and Budget, and are coordinated with other federal agencies with overlapping enforcement responsibilities or as otherwise appropriate.

**Deference by Courts:**

Congress authorized EEOC to issue "legislative regulations" under the Age Discrimination in Employment Act, Title I of the Americans with Disabilities Act, and Title II of the Genetic Information Nondiscrimination Act (GINA) which courts defer to so long as they are reasonable. Under Title VII of the Civil Rights Act, EEOC's authority to issue legislative regulations is limited to procedural, record keeping, and reporting matters. Regulations issued by EEOC without explicit authority from Congress, called "interpretive regulations," do not create any new legal rights or obligations, and are followed by courts only to the extent they find EEOC's positions to be persuasive.

**EEOC Subregulatory Guidance Documents** express official agency policy and explain how the laws and regulations apply to specific workplace situations.

**Public Input and Approval by the Commission:**

The Commission uses a variety of methods to solicit and receive input from the public on proposed enforcement guidance to ensure it is developed through a well-informed process. The Commission may hold a public meeting to hear testimony from witnesses, including experts in the issue being examined. Since June 2011, the Commission has, as a matter of routine practice, left the meeting record open for 15 days to allow for further public input on the topic. Where obtaining further public input will aid the Commission's development of a proposed guidance document, the Commission has, since January 2016, published draft guidance on www.regulations.gov for public input before it is finalized. Subregulatory policy documents must be approved by a majority of EEOC Commissioners before issuance.

**Deference by the Courts:**

EEOC subregulatory guidance documents interpreting a "legislative regulation" (under the ADEA, ADA, or GINA) receive deference from the courts if reasonable.  Courts defer to other EEOC subregulatory guidance documents when the judges are persuaded by the EEOC's positions.

**Types of EEOC Subregulatory Guidance Documents**:

Compliance Manual advises staff on substantive matters of law for use during investigations and in making reasonable cause determinations.
	EEOC Enforcement Guidance, Policy Guidance, and Policy Statements communicate the Commission's position on important legal issues. Before these guidance documents were made available on the Internet, they were filed behind the Compliance Manual section to which they most closely related.
	Management Directives instruct other federal agencies about the administrative procedures for federal employee or applicant claims of employment discrimination.

**Commission Decisions** are the Commission's determination on a specific charge of discrimination involving a private employer, or a state or local government employer, where the Commission votes to express official agency policy to be applied in similar cases by EEOC. They are distinct from appellate decisions by the Commission on federal employees' complaints of discrimination.

**Approval by the Commission:**

Commission Decisions must be approved by a majority of the Commissioners because they express official agency positions. Commission Decisions have been used by the Commission since the EEOC first opened in 1965. In its earliest days, the Commissioners voted on "Letters of Determination" to decide the merits of all charges filed with EEOC. As the number of charges filed with EEOC increased significantly, concerns about the growing inventory of pending charges led the EEOC to amend its regulations in 1972 to allow field offices to issue a Letter of Determination on a specific charge without a Commission vote. The Commission's authority to issue a decision on a particular charge remains, although it has been used sparsely in recent years. Due to the confidentiality provisions of the federal workplace discrimination laws, EEOC removes the names and personal identification information of the charging party and respondent prior to posting of the Commission Decision on its website.

**Memoranda of Understanding** **(MOUs)** explain how two or more agencies will cooperate and interact when their enforcement responsibilities overlap. The EEOC also has entered into MOU's with foreign embassies and consulates to enhance cooperation on matters involving employment discrimination against foreign nationals working in the United States.

**Approval by the Commission:**

MOUs involving other federal agencies are generally approved by a majority of Commissioners.

**EEOC Resource Documents** help the public understand existing EEOC positions. They are developed by staff as questions arise from the public to assist employees and employers to better understand their rights and obligations under the federal workplace discrimination laws. These documents are approved by the EEOC Chair.

**Types of EEOC Resource Documents:**

EEOC Resource Documents are produced in the form of:

Best Practices
	Brochures or Flyers
	Fact Sheets
	Informal Discussion Letters
	Primers & Other Small Business Information
	Questions and Answers
	Technical Assistance
	What-You-Should-Know (WYSK)
	Toolkits

These documents, and other materials, can be found in Discrimination by Type.Return to top

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