The Equal Employment Opportunity Commission (EEOC) has identified three proposed and four final rules that will dominate the agency’s regulatory activities for the coming year, according to its Semiannual Regulatory Agenda (pdf) released online yesterday. Of the seven regulations at issue, the EEOC’s Regulatory Plan (pdf) singles out the regulation at the final rule stage to implement the equal employment provision of the Americans with Disabilities Act Amendments Act (“ADAAA” or “ADA Amendments Act”), and the regulations defining Reasonable Factors Other than Age (RFOA) under the Age Discrimination in Employment Act (ADEA) at the proposed rule stage as the most important significant regulatory actions the agency will take.

The ADAAA, which was signed into law on September 25, 2008, significantly expands the definition of disability, enabling more individuals to be covered by the ADA. In September, the EEOC issued proposed regulations to reflect that the expanded ADA definition of disability should be interpreted broadly. The EEOC plans to issue a final rule by July 2010.

As for the second item on the EEOC’s regulatory plan, the agency intends to issue a new Notice of Proposed Rulemaking (NPRM) in March 2010 to amend its regulations clarifying the meaning of “reasonable factors other than age” used as a defense against an ADEA claim. In March 2008, the EEOC issued a NPRM regarding disparate impact claims under the ADEA. In this NPRM, the EEOC asked whether more information was needed on the meaning of RFOA in this context. In light of last year’s Supreme Court opinion in Meacham v. Knolls Atomic Power Lab, 128 S. Ct. 2395 (2008), in which the Court held that the employer bears the burden of production and persuasion when using a RFOA defense in an ADEA case, the EEOC believes that before it issues final regulations concerning disparate impact claims under the ADEA, it is appropriate to issue a new NPRM to address the scope of the RFOA defense.

Other items on the EEOC’s regulatory agenda include the following:

• The EEOC plans to issue a final rule on the disparate impact burden of proof under the ADEA in February 2010.
• The EEOC intends to issue a final rule on Title II of the Genetic Information Nondiscrimination Act (GINA) this month. Title II prohibits the use of genetic information in making employment decisions and limits employer access to genetic information, as well as imposes certain confidentiality obligations. The EEOC issued a proposed rule in March.  The final rule has already been sent to the Office of Management and Budget (OMB) for review.
• The EEOC plans to issue a NPRM to update the race and ethnicity data collection method rule by making self-identification the preferred method of data collection for EEO-1 Reports. The EEOC set a target date of September 2010 for issuing this proposed rule.
• The EEOC recently issued regulations that amend the procedural and administrative regulations to include references to GINA.
• The EEOC intends to make corrections and changes to federal sector EEO complaint processing.

This entry was written by Ilyse Schuman.