On July 22, 2008, the EEOC has issued a new Compliance Manual Section concerning workplace discrimination on the basis of religion. The new manual is intended as an overview of religious discrimination case law and the EEOC’s own views on the subject in order to provide “a practical resource for employers, employees, practitioners, and EEOC enforcement staff” in navigating the religious discrimination provisions of Title VII. The EEOC’s regulations on religious discrimination, 29 C.F.R. § 1605, are not affected by the manual.

The manual first addresses coverage issues, such as the definition of “religion” and a “sincerely held” belief under Title VII. The manual emphasizes that Title VII’s definition of religion is very broad, intended to cover all aspects of religious observance and traditional and non-traditional beliefs alike. The section further notes that religious discrimination protections extend to those with no religious beliefs at all. 

Next, the manual provides an analysis of disparate treatment claims of religious discrimination and workplace harassment based on religion. The manual also discusses what constitutes a “reasonable accommodation,” addressing both the scope of the accommodation required and common methods of religious accommodation used by employers. Lastly, the manual discusses the intersection of religious discrimination with other similar forms of discrimination, such as discrimination based on national origin or race.

The EEOC issued the new manual in response to rising claims of religious discrimination and at the request of agency officials involved in investigating and prosecuting these claims. The EEOC speculated this rise in claims may be attributable to an increase in religious pluralism, noting that as religious diversity in the workplace has increased, charges of religious bias may have risen in response. Religious discrimination claims filed at the EEOC have climbed from 1,388 in 1992 to a record 2,880 in 2007.

The EEOC has requested comments on its suggested changes to the regulations governing disparate impact claims under the ADEA. Disparate impact claims are those that involve a facially neutral practice that has an adverse impact on persons who are age 40 and older. As discussed below, the proposed regulations are consistent with the agency’s position in Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006), petition for cert. granted, 128 S.Ct. 1118 (2008), a case that will be argued before the Supreme Court on April 23, 2008.The EEOC’s changes would replace its current disparate impact age discrimination regulation with a regulation that conforms to the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005). Specifically, the EEOC would change 29 C.F.R. § 1625.7(d) to require plaintiffs who assert disparate impact age discrimination claims to “isolate[] and identify[] the specific employment practice that is allegedly responsible for any observed statistical disparities.” Additionally, the proposed regulation interprets the ADEA to require that when an employer asserts that some challenged practice is lawful because the practice is attributable to a “reasonable factor other than age” (”RFOA”), “the employer bears the burden of proving that the ‘reasonable factor other than age’ exists.”

In Smith, the Court determined that the ADEA permits disparate impact age claims. Unlike Title VII, which permits disparate impact race, color, sex, religion, and national origin claims, employers may defend ADEA disparate impact claims if the alleged discriminatory practice is justified by a RFOA.  Title VII provides a defense to disparate impact discrimination only when the practice is job related and consistent with business necessity. 

The question of whether a plaintiff or a defendant bears the burden of proving a RFOA in a disparate impact age discrimination case is currently pending before the Supreme Court of the United States in the Meacham case. The EEOC’s regulation seeks to settle the issue in Meacham, apparently before the Court issues its decision. Any comments about the EEOC’s proposed regulation must be received by May 30, 2008, and the EEOC may issue a final regulation anytime thereafter. The Supreme Court’s Meacham decision will likely issue by the end of June. 

The EEOC’s proposed treatment of the RFOA as an affirmative defense is inconsistent with decisions by the Second and Tenth Circuits, both of which have held that an employer only has a burden of production, not a burden of persuasion with respect to the RFOA. The Second and Tenth Circuits liken the ADEA to the pre-1991 Title VII disparate impact claims and place the ultimate burden of proof with the plaintiff. Meacham will decide this issue.

The EEOC’s proposed regulation is consistent with briefs the Commission filed in the Meacham case. Whether the Supreme Court will agree with the Commission remains to be seen, but even if the Court does agree, the Court already decided in the Smith case that the scope of disparate impact age discrimination is quite narrow. Nothing about the EEOC’s proposed regulation changes the Court’s decision in Smith.

The EEOC has asked interested parties to comment on whether the regulations should provide suggestions on the meaning of “reasonable factors other than age” standard. EEOC also asked whether explanations should refer to tort law standards such as negligence and reasonable standard of care when defining “reasonable.” Finally, the EEOC asked whether the regulations should offer factors relevant to whether an employment practice is based on reasonable factors other than age. 

The Equal Employment Opportunity Commission (EEOC) has issued two question-and-answer guides on workplace issues affecting veterans with service-connected disabilities. The two guides, one directed to employers and the other to disabled veterans, explain differences between the two laws protecting veterans with service-connected disabilities: the Americans with Disabilities Act (ADA), enforced by the EEOC, and USERRA, enforced by the DOL. For instance, while both laws include reasonable accommodation provisions, the EEOC notes that USERRA goes further than the ADA by requiring employers to make reasonable efforts to assist a veteran returning to the workplace in becoming qualified for a job. Both guides are available on the agency’s Web site at http://www.eeoc.gov/.

The EEOC has issued a new rule allowing employers to coordinate retiree health benefits with Medicare, or comparable state health benefits, without violating the Age Discrimination in Employment Act (ADEA). First proposed four years ago, the rule was developed in response to a 3rd Circuit ruling in 2000 in Erie County Retirees Association v. County of Erie, which held that the ADEA requires employers to spend the same amount on health benefits for retirees eligible for Medicare as it spends for younger retirees. The new regulation allows employers to continue the common practice of providing health benefits to retirees by supplementing government healthcare or by offering benefits to cover retirees between the time of retirement and the time they become eligible for Medicare. The AARP, which opposes the rule, filed suit challenging the Commission’s authority to issue the regulation. The 3rd Circuit upheld summary judgment in favor of the Commission in June, and a petition for Supreme Court review is pending.

The EEOC is eliminating three bases for dismissal of charges under Title VII and the Americans with Disabilities Act (ADA). Effective February 19, 2008, the Commission will no longer authorize dismissal when the charging party fails to cooperate, cannot be located or refuses to accept an offer of full relief for the harm alleged in the charge. The Commission added these grounds in 1977 as a case management tool, but now notes that they are no longer necessary, have caused confusion in the courts, and are inconsistent with procedures in the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act. Once the rule takes effect, the only authorized grounds for dismissal will be when the Commission issues a no cause determination, a charge was untimely or a charge fails to state a claim on which relief can be granted.

In a December 4, 2007, conference marking the 40th anniversary of the ADEA, EEOC Commissioner Stuart Ishimaru remarked that age discrimination is sometimes the “stepchild” in the EEOC’s enforcement agenda and the agency needs to do a “far better job” in enforcing the ADEA. Commissioner Ishimaru suggested that the EEOC needs to focus on preparing for the anticipated increase in older workers in the workforce as baby boomers stay in the workforce longer, but noted that the EEOC does not currently have an organized plan to address this trend.

EEOC funding for fiscal year 2008 is being held up at the conference committee stage due to objections to an amendment included in the Senate-passed version of the bill that would prevent the EEOC from bringing a civil action “against an entity on the grounds that the entity requires an employee to speak English while engaged in work.” Members of the Congressional Hispanic Caucus object to the provision, arguing that it is unnecessary because Title VII already allows employers to have English-only policies if they have a legitimate, business-related need to require employees to speak English on the job.

On December 3, 2007, the Equal Employment Opportunity Commission (EEOC) issued a fact sheet on employer-administered tests and other selection procedures. Issued in response to an observed increase in employment testing and employment testing-related charges, the fact sheet describes recent EEOC enforcement actions that illustrate principles on testing and focuses on best practices for employers to follow when using employment tests and other screening devices. Such devices, including cognitive tests, personality tests, medical examinations, credit checks and criminal background checks, can violate Title VII, the Americans with Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) if used to intentionally discriminate based on race, color, sex, national origin, religion, disability or age (40 or older), or if they have a disparate impact on any of these groups.As part of its best practices for administering tests without regard to race, color, national origin, sex, religion, age or disability, the EEOC advises employers to ensure that their tests are properly validated for the positions and purposes for which they are used and not just rely on a test vendor’s documentation supporting the validity of a test. In addition, employers should monitor changes in job requirements and update selection procedures accordingly. The fact sheet is available at http://www.eeoc.gov/policy/docs/factemployment_procedures.html.

The EEOC has revised its policy on the use of intake questionnaires. When an intake questionnaire contains all the information required by EEOC regulations governing the contents of a charge and constitutes a clear request for the agency to act, the EEOC will “docket” the questionnaire as a charge and provide notice of the charge to the respondent within ten days.

Reed Russell, formerly a counsel in Akin Gump’s Washington labor and employment group, has become the new Legal Counsel at EEOC. The EEOC Legal Counsel runs the EEOC’s Office of Legal Counsel, which advises the Commission on policy matters.