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Washington Labor & Employment Wire » Equal Employment Opportunity Commission

EEOC Publishes Final ADA Regulations


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On March 25, 2011, the Equal Employment Opportunity Commission (”EEOC”) published its final revised regulations and interpretive guidance under the Americans with Disabilities Act (”ADA”). These revisions bring the Commission’s regulations into compliance with the ADA Amendments Act of 2008 (”ADAAA”), which explicitly invalidated certain prior EEOC regulations and several Supreme Court decisions interpreting the pre-2008 ADA.The ADA Amendments Act expanded the definition of “disability,” making it easier for an individual to establish that he or she has a disability within the meaning of the ADA. Accordingly, the EEOC’s final regulations, as with its prior proposed regulations, reflect a broadened understanding of what constitutes a “disability.” The regulations expand the definition of “major life activities” to include “major bodily functions,” such as breathing, cell reproduction, and immune system function. They provide that an impairment that is episodic or in remission is still considered a disability if it would substantially limit a major life activity when active. Additionally, the regulations provide that mitigating measures, other than the use of ordinary eyeglasses or contact lenses, should not be considered when assessing whether an individual has a disability. The regulations further revise the definitions of “substantially limits” and “regarded as” to reflect this broader understanding of what constitutes a disability under the Act.

The final regulations go beyond the proposed regulations previously promulgated by the EEOC to include additional guidance on certain topics. This includes clarification that cases in which an applicant or employee does not require reasonable accommodation can be evaluated solely under the “regarded as” prong of the definition of “disability,” and that whether an individual is substantially limited in a major life activity is irrelevant under the “regarded as” prong. Further, the final regulations state that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong.

General concerns were raised by employer groups about the inclusion of major life activities in the final regulations that were not listed in the statute, including specific concerns that the inclusion of “interacting with others” in the non-exhaustive list of major life activities would limit the ability to discipline employees for misconduct. The Commission declined to act on these concerns, noting that Congress provided that the lists of major life activity examples are non-exhaustive and that the Commission is authorized to recognize additional examples.

The final regulations also explain that the standard from Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), for determining whether an activity qualifies as a major life activity (i.e., that it be of “central importance to most people’s daily lives”) no longer applies after the ADA Amendments Act.

In conjunction with the publication of the final regulations, the Commission has released two question-and-answer documents. The ADAAA regulations, the accompanying question-and-answer documents, and a fact sheet are available from the EEOC here.


EEOC Holds Hearing on Employment of Persons with Mental Disabilities and Announces New Initiative

On March 15, 2011 the EEOC convened a public hearing on “The Employment of People with Mental Disabilities.” Organized primarily by Commissioner Chai Feldblum, who had significant involvement in the creation and passage of the Americans with Disabilities Act (”ADA”), the hearing featured three witness panels. Commissioner Stuart Ishimaru commented that the hearing was particularly timely as the Commission is on the brink of issuing its final regulations regarding the ADA Amendments Act. 

One of the hearing’s themes was the dignity and pride that working allows individuals with mental disabilities to have. In addition, a host of social and economic benefits to the individual and society, socially and economically were presented. The Commissioners of both parties in their opening and closing statements noted the bipartisan nature of this concern and indicated a sentiment that they speak with one voice in support of addressing the issues surrounding those with disabilities seeking and attempting to maintain employment. 

Employment Rates of People with Mental Disabilities

The first panel presented research, anecdotal data, and suggested strategies to improve the employment rates of people with mental disabilities. Dr. William Kiernan, director of the Institute for Community Inclusion, noted that 42% of people with intellectual disabilities live beneath the poverty line and that only 23% of such persons are in the workforce (as compared to 71.9% of the general population). Dartmouth professor Gary Bond reported that 70% of individuals with serious mental illness wish to work. Panelists also talked about challenges for individuals with mental disabilities, including transportation and the need for flexible hours, and the  technology which is redefining the traditional work day and location that can provide solutions. Ruby Moore, executive director of the Georgia Advocacy Office, cited various examples of corporations that have worked to create successful accommodations, including flexible working hours policies.

Requirements of the ADA, Strategies to Comply and Outcomes for People with Mental Disabilities

The second panel included Samuel Bagenstos, the principal deputy assistant attorney general for civil rights, a local Giant Foods supermarket manager and one of his employees with a mental disability, and a current EEOC legal intern who has struggled with psychiatric issues. Bagenstos testified on litigation efforts by the Department of Justice to enforce the ADA after Olmstead v. L.C., 527 U.S. 581 (1999), which requires public agencies to provide services “in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The supermarket manager testified about his success in working with individuals with mental disabilities and emphasized in questioning that his employment of such persons was based on business interest, not charity. One of his employees spoke about the connections she had made with people and the pride she takes in working. The EEOC legal intern described the dehumanizing effects of her multipl institutionalizations and described the pride and self-worth she has regained through sheer effort after removing herself from institutionalization.

Litigation to Enforce the Rights of People with Mental Disabilities

In the final panel, EEOC senior trial attorney Markus Penzel and charging party Donna Malone discussed their experience in EEOC v. Land Air Express, and how the ADA Amendments Act would have changed the litigation. Malone, who suffers from post-traumatic stress disorder (PTSD) as a result of repeated abuse by family members, was discharged after seven years based on a stereotype of individuals with PTSD. Penzel noted that the issue of whether Malone was legally disabled was a substantial issue in the litigation, but would not be an issue under the expanded scope of disability under the ADA Amendments Act.  In addition, Malone’s case would have been simplified due to the change in the burden of proof for individuals claiming to have been discriminated against because they are “regarded as” disabled. Penzel believes the changes to the ADA will help the EEOC and plaintiffs get to the substantive issues instead of being caught up in threshold issues.

 In her concluding remarks, Commissioner Feldblum stated her hope that the hearing demonstrated that it is possible to change the dire employment statistics for individuals with mental disabilities. She further posited that one critical step is to establish a forum through which efforts can be built upon the experience of employers who have been leading that way, using what they have learned to create more systematic change. Commissioner Feldblum then announced, “Towards that end, I am very pleased that I have had some initial conversations with the Chamber of Commerce and Society for Human Resource Management and I am pleased that they are willing to explore the possibility of working with me, the various disability groups and various agencies within the government to develop a coherent and coordinated effort to increase the number of people with disabilities in employment.” Commissioner Feldblum explained that she and her staff will facilitate such cooperative efforts with an initial focus on individuals with mental disabilities and that she will be forming a disability group with her government colleagues and a business group to get the efforts under way.


EEOC Issues Final Rules on GINA


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In the November 9, 2010, Federal Register, the Equal Employment Opportunity Commission (EEOC) published its final regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA). GINA, which was signed into law on May 21, 2008, and became effective November 21, 2009, prohibits discrimination based on an individual’s genetic information or family medical history. While the EEOC issued proposed regulations in early 2009, advancement to a final rule was delayed by the need to consult with other agencies that share responsibility for enforcing GINA, as well as turnover among the EEOC’s commissioners.

Title II of GINA prohibits employers from discharging, refusing to hire, or otherwise making employment decisions on the basis of genetic information, as well as generally barring employers from obtaining genetic information about applicants, employees, and former employees. In large part, the regulations reiterate the provisions and language of Title II. However, they do provide clarification and guidance regarding a number of specific aspects of the statute.

The EEOC’s final regulations clarify that an employer need not intentionally solicit genetic information to violate GINA. While the EEOC’s earlier proposed regulations contained language relating to “deliberate acquisition” of protected information, that language was deleted from the final regulations, and the preamble to those final regulations explains that an employer “may violate GINA without a specific intent to acquire genetic information.”

Further, the final regulations provide additional guidance as to the scope of protected genetic information. GINA generally defines genetic information to incorporate family medical histories, including information about the manifestation of disease or disorders in family members of the individual. The regulations clarify the scope of that definition and provide examples of medical tests that are not considered genetic tests, such as blood counts, cholesterol tests, and screenings for alcohol or illegal drugs.

The regulations also provide additional guidance for navigating the exceptions to GINA’s prohibition against the acquisition of genetic information - particularly in the area of inadvertent acquisition of protected information. Where an employer warns a health care provider not to provide genetic information, it may take advantage of a “safe harbor” provision for the inadvertent acquisition of such information from that provider. The regulations emphasize that an employer must warn health care providers responding to Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) requests not to provide the employer with an individual’s genetic or family history information. The regulations even provide sample language for employers to use to properly warn health care providers against such disclosures.

The regulations provide similar guidance for employers conducting pre-employment medical evaluations. Employers are instructed to “tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.” This may require some modification to the post offer/pre-employment medical examination process to remove questions pertaining to family medical history.

The regulations also acknowledge that inadvertent acquisition of protected information may occur in casual conversion between management and employees or during conversations among employees. The regulations clarify that GINA is not violated where a manager simply overhears an employee’s conversation about protected information or asks an employee basic questions, such as “How are you?” or “How is your son feeling today?”

Pursuant to GINA, employers that do obtain protected genetic and family history information must comply with strict confidentiality requirements. The confidentiality provisions in the regulations mirror certain confidentiality provisions in the ADA, and require that protected information be kept in a separate confidential file and not in an employee’s personnel file.


EEOC Expects Final GINA and Revised ADA Rules Soon


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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.


White House Makes Recess Appointments to the EEOC

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.


EEOC Publishes Proposed ADEA Rules


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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.


President Obama Signs FY 2010 Consolidated Appropriations Bill (H.R. 3288)


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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. 


Senate HELP Committee Approves All of Obama’s EEOC Picks

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.


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

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.


Senate HELP Committee Holds Confirmation Hearing on EEOC Nominations


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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.