64340 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION (EEOC) 

Statement of Regulatory and 

Deregulatory Priorities 

The mission of the Equal Employment 

Opportunity Commission (EEOC, 

Commission or agency) is to ensure 

equality of opportunity in employment 

by vigorously enforcing six federal 

statutes. These statutes are: Title VII of 

the Civil Rights Act of 1964, as amended 

(prohibits employment discrimination 

on the basis of race, color, sex, religion, 

or national origin); the Equal Pay Act of 

1963, as amended; the Age 

Discrimination in Employment Act of 

1967 (ADEA), as amended; Titles I and 

V of the Americans with Disabilities Act 

of 1990, as amended, and sections 501 

and 505 of the Rehabilitation Act of 

1973, as amended (disability); and the 

Government Employee Rights Act of 

1991. Effective November 21, 2009, the 

EEOC will enforce Title II of the Genetic 

Information Nondiscrimination Act of 

2008 (GINA), which prohibits 

employment discrimination based on 

genetic information. 

The first item in this Regulatory Plan 

is titled ‘‘Regulations To Implement the 

Equal Employment Provisions of the 

Americans With Disabilities Act 

Amendments Act.’’ On September 25, 

2008, the President signed the 

Americans with Disabilities Act 

Amendments Act of 2008 (‘‘ADA 

Amendments Act’’ or ‘‘Act’’). The Act 

makes important changes to the 

definition of the term ‘‘disability’’ by 

rejecting the holdings in several 

Supreme Court decisions and portions 

of EEOC’s ADA regulations. The Act 

retains 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. 

The second item in this Regulatory 

Plan is titled ‘‘Reasonable Factors Other 

Than Age Under the Age Discrimination 

in Employment Act’’. In March 2008, 

the EEOC published a Notice of 

Proposed Rulemaking (NPRM) 

concerning disparate impact under the 

Age Discrimination in Employment Act. 

73 FR 16807 (March 31, 2008). In this 

NPRM, the Commission asked whether 

EEOC 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. lll, 128 S. Ct. 2395 (2008), 

the Commission believes it is 

appropriate to issue a new NPRM to 

address the scope of the RFOA defense. 

Accordingly, before finalizing its 

regulations concerning disparate impact 

under the ADEA, the Commission 

intends to publish a new NPRM 

proposing to amend its regulations 

concerning RFOA. 

Consistent with section 4(c) of 

Executive Order 12866, this statement 

was reviewed and approved by the 

Acting Chairman of the Agency. The 

statement has not been reviewed or 

approved by the other members of the 

Commission. 

EEOC 

PROPOSED RULE STAGE 

155. REASONABLE FACTORS OTHER 

THAN AGE UNDER THE AGE 

DISCRIMINATION IN EMPLOYMENT 

ACT 

Priority: 

Other Significant 

Legal Authority: 

29 USC 628 

CFR Citation: 

29 CFR 1625.7(b),(c) 

Legal Deadline: 

None 

Abstract: 

On March 31, 2008, the EEOC 

published a Notice of Proposed 

Rulemaking (NPRM) concerning 

disparate impact 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. lll, 128 S. Ct. 2395 

(2008), the Commission believes it is 

appropriate to issue a new NPRM to 

address the scope of the RFOA defense. 

Accordingly, before finalizing its 

regulations concerning disparate impact 

under the ADEA, the Commission 

intends to publish a new NPRM 

proposing to amend its regulations 

concerning RFOA. 

Statement of Need: 

In Smith v. City of Jackson, the 

Supreme Court affirmed that disparate 

impact is a cognizable theory of 

discrimination under the ADEA but 

indicated that ‘‘reasonable factors other 

than age,’’ not ‘‘business necessity,’’ is 

the appropriate model for the 

employer’s defense against an impact 

claim. In Meacham v. Knolls Atomic 

Power Lab., the Supreme Court ruled 

that the employer has the RFOA burden 

of persuasion. Current EEOC 

regulations do not define the meaning 

of ‘‘RFOA.’’ The EEOC is revising its 

regulations to address the scope of the 

RFOA defense. 

Summary of 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 will consider all 

alternatives offered by the public 

commenters. 

Anticipated Cost and Benefits: 

Preliminary estimates of anticipated 

costs and benefits have not been 

determined at this time. The 

Commission will explore options for 

conducting a cost benefit analysis for 

this regulatory action if necessary. This 

revision to EEOC’s regulation, 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 proposed regulation will reduce 

the risks of liability for noncompliance 

with the statute by clarifying the RFOA 

defense. The proposal does not address 

risks to public health, safety, or the 

environment. 

Timetable: 

Action Date FR Cite 

NPRM 02/00/10 

Regulatory Flexibility Analysis 

Required: 

No 


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Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64341 

Small Entities Affected: 

Businesses, Governmental Jurisdictions, 

Organizations 

Government Levels Affected: 

Federal, Local, State, Tribal 

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 

Email: dianna.johnston@eeoc.gov 

RIN: 3046–AA87 

EEOC 

FINAL RULE STAGE 

156. REGULATIONS TO IMPLEMENT 

THE EQUAL EMPLOYMENT 

PROVISIONS OF THE AMERICANS 

WITH DISABILITIES ACT 

AMENDMENTS ACT 

Priority: 

Other Significant 

Legal Authority: 

42 USC sec 12116 and sec 506 as 

redesignated under the ADA 

Amendments Act of 2008 

CFR Citation: 

29 CFR 1630 

Legal Deadline: 

None 

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 maximun 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. 

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. 

Summary of Legal Basis: 

Section 506 of the Amendments Act, 

42 U.S.C. section 2000ff-10, 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. 

Anticipated Cost and Benefits: 

For those employers that have 15 or 

more employees and are therefore 

covered by Amendments Act, the 

potential economic impact stems from 

the likelihood that due to the broader 

interpretation of ‘‘substantially limited 

in a major life activity,’’ more 

employees will be covered under the 

first two prongs of the definition of 

disability, and thus potentially entitled 

to reasonable accommodations that do 

not pose an undue hardship. However, 

the Amendments Act does not change 

the scope of the accommodation 

obligation itself, or the definition of the 

‘‘undue hardship’’ defense as 

‘‘significant difficulty or expense.’’ The 

Amendments Act also reverses at least 

three courts of appeals decisions that 

previously permitted individuals who 

were merely ‘‘regarded as’’ individuals 

with disabilities to potentially be 

entitled to reasonable accommodation. 

This change narrows the financial 

impact of the ADA on employers. 

While many individuals with 

disabilities do not request or need a 

reasonable accommodation, statistical 

studies have repeatedly shown that 

when reasonable accommodation is 

required by an individual with a 

disability, it is far less expensive than 

many employers suspect. 

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 09/23/09 74 FR 48431 

NPRM Comment 

Period End 

11/23/09 

Final Action 07/00/10 

Regulatory Flexibility Analysis 

Required: 

No 

Small Entities Affected: 

Businesses, Governmental Jurisdictions, 

Organizations 

Government Levels Affected: 

Federal, Local, State, Tribal 

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 

Email: christopher.kuczynski@eeoc.gov 

RIN: 3046–AA85 

BILLING CODE 6570–01–S 


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