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On April 26, 2010, the Equal Employment Opportunity Commission (”EEOC”) released its semiannual regulatory agenda outlining seven items that are scheduled for review or development during the next several months.
First, EEOC states that it expects to issue its final rule interpreting Title II of the Genetic Information Nondiscrimination Act (”GINA”) in May 2010. Title II was enacted in 2008 and prohibits the use of genetic information in making employment decisions, limits employer access to genetic information, and imposes confidentiality obligations on employers.
Second, EEOC states that intends to issue a final rule in July 2010 revising its ADA regulations and interpretive guidance implementing the ADA Amendments Act of 2008 (”ADAAA”). The primary effect of these changes, which were necessary to because the ADAAA invalidated parts of EEOC’s existing regulations, 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.
Third, EEOC’s agenda pushed back the anticipated date for a final rule concerning the disparate impact burden of proof under the Age Discrimination in Employment Act (”ADEA”) from October 2010 until March 2011. This delay results from the EEOC’s February 2010 NPRM regarding the reasonable factors other than age defense under the ADEA. As these two proposed rulemakings are interrelated, the EEOC’s final rulemaking will cover the issues addressed in both NPRMs.
The existence of three new Commissioners at EEOC imposes some risk to EEOC’s proposed schedule. If substantive changes are made to the GINA or revised ADA rules to obtain a majority vote on such rules before they are issued as final rules, EEOC would have to resubmit the rules for review and coordination with other federal agencies pursuant to Executive Order 12866.
Other items on EEOC’s agenda include (1) revising the existing Federal sector EEO complaint process to make it more efficient and effective; (2) making employee self-identification the preferred method for collecting race and ethnic data on employees for reporting purposes; and (3) amending Title VII and ADA recordkeeping regulations to address recordkeeping obligations under GINA.