On November 24, 2008, the Equal Employment Opportunity Commission (”EEOC”) published its regulatory agenda for the next six months. Two main items are on the agenda.

First, the EEOC will propose regulations implementing the Genetic Information and Nondiscrimination Act (”GINA”). Signed into law on May 21, 2008, GINA prohibits employment discrimination based on genetic information and protects employees against disclosure of such information. Congress included a requirement for the EEOC to issue regulations implementing the Act by May 21, 2009. The Commission intends to issue a notice of proposed rulemaking in January 2009, with the public comment period ending in March 2009. GINA’s employment provisions will take effect in November 2009.

Second, the EEOC intends to revise its regulation on disparate impact under the Age Discrimination in Employment Act (”ADEA”) to conform with the Supreme Court’s holding in Smith v. City of Jackson, 544 U.S. 228 (2005). EEOC’s current regulations interpret the ADEA to prohibit employment practices that have a disparate impact on employees in the protected age group unless the practice is justified by a business necessity. In Smith v. City of Jackson, the Supreme Court held that the appropriate standard for an employer’s defense against a disparate impact claim under the ADEA is not the business necessity test, but whether the employment practice is based on “reasonable factors other than age.” The Commission issued its proposed rule to reflect this standard on March 31, 2008, and the public comment period ended May 31, 2008. The EEOC intends to publish the final rule in May 2009.