EEOC Releases Semiannual Agenda Prioritizing GINA, Revised ADA Regulations, and a NPRM on ADEA Issues

December 9, 2009 11:59 PM in Agency Activity Alert • Equal Employment Opportunity Commission • The Obama Administration | Kelly Smith

On December 7, 2009, the Equal Employment Opportunity Commission (”EEOC”) released its Semiannual Regulatory Agenda and its Regulatory Plan. The agenda lists seven items that are scheduled for review or development during the next 12 months, including three proposed rules and four final rules.According to EEOC, of these seven items, the two most significant regulatory actions are included in the Regulatory Plan: (1) developing reasonable factors other than age under the Age Discrimination in Employment Act (”ADEA”) and (2) finalizing regulations to implement the equal employment provisions of the Americans With Disabilities Act (”ADA”) Amendments Act.

EEOC states that it intends to issue a Notice of Proposed Rulemaking (”NPRM”) to address the scope of the “reasonable factors other than age” defense under the ADEA. These proposed regulations would complement the Commission’s proposed regulations concerning the burden of proof regarding disparate impact under the ADEA, which were published on March 31, 2008.

As to the ADA Amendments Act, EEOC states that it intends to finalize its regulations and accompanying interpretative guidance implementing those Amendments. These revised regulations are necessary to bring the Commission’s regulations into compliance with the ADA Amendments Act of 2008, which explicitly invalidated certain provisions of the existing ADA regulations. According to EEOC, the primary effect of these changes will be 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.

Other items on EEOC’s agenda include:

  • Issuing a final rule implementing title II of the Genetic Information Nondiscrimination Act (”GINA”), which prohibits the use of genetic information in making employment decisions and limits employer access to genetic information;
  • Amending procedural and administrative regulations to include the GINA;
  • Issuing a final rule on the disparate impact burden of proof under the ADEA;
  • Revising the existing Federal sector EEO complaint process to make it more efficient and effective; and
  • Making employee self-identification the preferred method for collecting race and ethnic data on employees for reporting purposes.