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.

On March 27, 2010, President Obama announced the recess appointments of 15 administration nominees, including all of his nominees for vacant Equal Employment Opportunity Commission (”EEOC”) positions. These appointments included three Commissioner vacancies: (1) Jacqueline Berrien, who the President has indicated he will designate as EEOC Chair, (2) Victoria Lipnic, and (3) Chai Feldblum.  The President also appointed  P. David Lopez as General Counsel. The Senate Committee on Health Education Labor and Pensions (”HELP”) previously approved of all of these nominees on December 10, 2009.

Ms. Berrien, a Democrat, has served as Associate Director-Counsel of the NAACP Legal Defense and Education Fund since 2004. She was previously a staff attorney with the Lawyers’ Committee for Civil Rights and the American Civil Liberties Union. 

Ms. Feldblum, a Democrat, is a Professor of Law at the Georgetown University Law Center. She helped draft the Americans with Disabilities Act of 1990 and is an advocate of disability rights, lesbian, gay, bisexual and transgender rights, and AIDS-related issues.

Ms. Lipnic, a Republican, is of counsel to Seyfarth Shaw in Washington, D.C. She previously served as U.S. Assistant Secretary of Labor for Employment Standards and as Workforce Policy Counsel to the House Republican members of the Education and Labor Committee

Mr. Lopez has a long history with the EEOC. He currently serves as a Supervisory Trial Attorney at the EEOC’s Phoenix District Office and previously worked as a Special Assistant to then-EEOC Chair Gilbert F. Casellas.

Berrien, Lipnic, and Feldblum join Acting Chair Stuart J. Ishimaru, who will return to status as a Commissioner, and Commissioner Constance Barker to round out the five-member Commission. Under of the rules of recess appointments, Berrien, Lipnic, Feldblum and Lopez will be eligible to serve through the end of 2011, when the next Senate finishes its term.

On February 18, 2010, the Equal Employment Opportunity Commission (EEOC) issued a notice of proposed rulemaking (NPRM) to amend its regulations to more clearly define the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). This proposed rulemaking seeks to address the scope of the RFOA defense under EEOC’s proposed regulations concerning disparate impact under the ADEA, which were published on March 31, 2008.

This NPRM follows two important Supreme Court cases on the RFOA defense - Smith v. City of Jackson, 544 U.S. 228 (2005) and Meacham v. Knolls Atomic Power Laboratories, 128 S. Ct. 2395 (2008). In Smith, the Supreme Court allowed disparate impact claims of discrimination under the ADEA and, following the Court’s decision, EEOC has said that the “reasonable factors other than age” test is the appropriate standard for determining the lawfulness of a practice that disproportionately affects older individuals. Subsequently, in Meacham, the Supreme Court held that an employer bears both the burden of production and the burden of persuasion for a RFOA defense in an ADEA disparate-impact claim.

EEOC’s proposed rules clarify that the applicability of the RFOA defense turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts. This standard is lower than Title VII’s business-necessity test, but it is higher than the Equal Pay Act’s “any other factor” test.

Relying on the “reasonable person” principles of tort law, EEOC proposed a non-exhaustive list of relevant factors including, among others, 1) the extent to which the employment practice is a common business practice; 2) the severity of the impact of the practice on individuals within the protected age group, both in degree of injury and scope of impact; and 3) the extent to which the employer took steps to assess and ameliorate the adverse impact of the practice on older workers.

The proposed regulations carry a 60-day public comment period. Written comments should be submitted by April 19, 2010, to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 4NW08R, Room 6NE03F, Washington, D.C. 20507. Comments may also be submitted electronically at www.regulations.gov.

On Wednesday, December 16, President Obama signed into law the Fiscal Year 2010 Consolidated Appropriations Bill (H.R. 3288).  This omnibus appropriations legislation provides additional funding to the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunities Commission, among other federal agencies.  The bill passed in the Senate by a 57-35 vote earlier this week, and previously passed the House by a vote of 221-202. 

On December 10, 2009, the Senate Committee on Health Education Labor and Pensions (”HELP”) approved President Obama’s nominations for several vacant Equal Employment Opportunity Commission (”EEOC”) positions, including Jacqueline Berrien as EEOC Chair, Victoria Lipnic and Chai Feldblum as Commissioners, and P. David Lopez as General Counsel.  These approvals came less than a month after the HELP Committee’s November 19 hearing on these nominations.

In a statement released December 10, 2009, HELP Committee Chairman Tom Harkin (D-IA) stated that he was pleased to move these nominations forward, as “Americans need committed, capable public servants working full time on their behalf.”

The nominees now move to the full Senate for confirmation. If confirmed, Berrien, Lipnic, and Feldblum would join Acting Chair Stuart J. Ishimaru and Commissioner Constance Barker to round out the five-member Commission. At that time, Acting Vice Chair Christine Griffin will leave the EEOC to serve as the Deputy Director of the Office of Personnel Management.  Although Griffin’s commission expired on July 1, 2009, she has remained as Acting Vice Chair until her replacement could be confirmed.

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.

On November 19, 2009, the Senate Committee on Health Education Labor and Pensions (HELP) held a confirmation hearing on the nominations for three Commissioners and for General Counsel of the Equal Employment Opportunity Commission (EEOC). The pending nominations include Jacqueline A. Berrien, Chai R. Feldblum, and Victoria A. Lipnic as Commissioners and P. David Lopez as General Counsel.

The hearing was attended by, among others, Acting EEOC Chair Stuart Ishimaru and Commissioner Constance Barker.  House Majority Leader Steny Hoyer (D-MD) and Representative Yvette Clarke (D-NY) appeared to express their personal support for the confirmation of Feldblum and Berrien, respectively.

Committee Chairman Tom Harkin (D-IA) highlighted the unique role of the EEOC and its ever-increasing workload.  Harkin asserted that EEOC has been underfunded in recent years, resulting in a backlog of over 85,000 claims. 

Most questions from the Committee were directed at Berrien and Feldblum.  Berrien has been previously reported to be President Obama’s choice to be the Chair, and it is expected that Feldblum would be designated as Vice Chair.

Berrien testified that her priority as Chair would be to improve the service of the EEOC by increasing the strategic efficiency of the Commission. She pledged to work with other government officials and with Congress to ensure the enforcement of employment discrimination laws. Berrien also stressed the importance of preventing employment discrimination by heightening awareness and increasing public outreach.

Feldblum testified about her commitment to civil rights and social welfare issues, particularly for the equal treatment of persons with disabilities, as well as for gay, lesbian, bisexual, and transgendered persons. She stressed the importance of seeking common ground and tolerance among diverse populations.

Lipnic stressed improving the Commission’s response time, noting that “justice delayed is justice denied” for both employees and employers. She also noted the burden that EEOC investigations often place on employers.

Lopez testified that he would work as General Counsel to function as a national law firm that “is able to effectively and efficiently muster its resources to combat discrimination and ensure equal opportunity throughout this nation.”

Chairman Harkin noted at the end that the Committee intends to move as expeditiously as possible. The record will remain open for ten days, during which members may submit questions to the nominees.

A video of the hearing and the statements of the nominees are available here.

On November 3, 2009, President Obama nominated the Honorable Victoria A. Lipnic as a Commissioner on the Equal Employment Opportunity Commission (EEOC). Lipnic’s nomination has been sent to the Senate Committee on Health, Education, Labor, and Pensions for confirmation. 

Lipnic, a Republican, served as U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009. While at the Department of Labor, Lipnic oversaw the Employment Standards Administration, which enforces labor and employment laws affecting 135 million workers in 7.3 million workplaces. Lipnic worked to revise the Family and Medical Leave Act regulations, modify certain overtime regulations under the Fair Labor Standards Act, and increase the Department’s responses to wage and hour opinion letter requests. In addition to her work with the Department of Labor, Lipnic also served as Workforce Policy Counsel to the House Republican members of the Education and Labor Committee and was in-house counsel to the U.S. Postal Service.

Lipnic currently resides in Virginia and is engaged in the private practice of law in Washington, DC. She received her Juris Doctor from George Mason University School of Law and her Bachelor’s Degree from Allegheny College in Pennsylvania.

President Obama has previously nominated Jacqueline Berrien and Chai Feldblum as Commissioners. Berrien and Feldblum, both Democrats, currently await Senate confirmation. It is expected that, if confirmed, Berrien and Feldblum would be designated by the President as EEOC Chair and Vice Chair, respectively. Obama’s nomination of a Republican to join the Commission may hasten the confirmation of all three nominees.

On October 26, 2009, President Obama formally nominated  P. David Lopez as General Counsel for the Equal Employment Opportunity Commission (EEOC). The nomination has been referred to the Senate Committee on Health, Education, Labor, and Pensions for confirmation.

Lopez currently serves as a Supervisory Trial Attorney at the EEOC’s Phoenix District Office. The Harvard Law graduate has previously worked as a Special Assistant to then-Commissioner Gilbert F. Casellas, as well as an attorney in the Employment Litigation Section of the Civil Rights Division of the U.S. Department of Justice.

The EEOC’s General Counsel position has been vacant since Ronald Cooper’s resignation earlier this year. Obama announced his intent to nominate Lopez for the position on October 22.

On October 22, 2009, President Obama announced his intent to nominate P. David Lopez as General Counsel for the Equal Employment Opportunity Commission (EEOC). The EEOC’s General Counsel directs the Commission’s litigation through the agency’s district offices, which file and litigate the Commission’s lawsuits throughout the country.

Lopez began his career at the EEOC in 1994 as a Special Assistant to Commissioner Gilbert F. Casellas. He currently serves as a Supervisory Trial Attorney at the EEOC’s Phoenix District Office. Prior to joining the Commission, Lopez worked at the U.S. Department of Justice in the Employment Litigation Section of the Civil Rights Division. Lopez received his Juris Doctor from Harvard Law School and his Bachelor’s Degree in Political Science from Arizona State University.

The White House has not yet indicated when President Obama’s final nomination will be announced. If nominated and confirmed, Lopez would serve a four-year term.