[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Unknown Section]
[Pages 64340-64341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X09-191207]
[[Page 64340]]
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)
Statement of Regulatory and Deregulatory Priorities
The mission of the Equal Employment Opportunity Commission (EEOC,
Commission or agency) is to ensure equality of opportunity in
employment by vigorously enforcing six federal statutes. These statutes
are: Title VII of the Civil Rights Act of 1964, as amended (prohibits
employment discrimination on the basis of race, color, sex, religion,
or national origin); the Equal Pay Act of 1963, as amended; the Age
Discrimination in Employment Act of 1967 (ADEA), as amended; Titles I
and V of the Americans with Disabilities Act of 1990, as amended, and
sections 501 and 505 of the Rehabilitation Act of 1973, as amended
(disability); and the Government Employee Rights Act of 1991. Effective
November 21, 2009, the EEOC will enforce Title II of the Genetic
Information Nondiscrimination Act of 2008 (GINA), which prohibits
employment discrimination based on genetic information.
The first item in this Regulatory Plan is titled ``Regulations To
Implement the Equal Employment Provisions of the Americans With
Disabilities Act Amendments Act.'' On September 25, 2008, the President
signed the Americans with Disabilities Act Amendments Act of 2008
(``ADA Amendments Act'' or ``Act''). The Act makes important changes to
the definition of the term ``disability'' by rejecting the holdings in
several Supreme Court decisions and portions of EEOC's ADA regulations.
The Act retains the ADA's basic definition of ``disability'' as an
impairment that substantially limits one or more major life activities,
a record of such an impairment, or being regarded as having such an
impairment. However, it changes the way that these statutory terms
should be interpreted in several ways.
The second item in this Regulatory Plan is titled ``Reasonable Factors
Other Than Age Under the Age Discrimination in Employment Act''. In
March 2008, the EEOC published a Notice of Proposed Rulemaking (NPRM)
concerning disparate impact under the Age Discrimination in Employment
Act. 73 FR 16807 (March 31, 2008). In this NPRM, the Commission asked
whether EEOC regulations should provide more information on the meaning
of ``reasonable factors other than age'' (RFOA) and if so, what the
regulations should say. After consideration of the public comments, and
in light of the Supreme Court decisions in Smith v. City of Jackson,
544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 554 U.S.
------, 128 S. Ct. 2395 (2008), the Commission believes it is
appropriate to issue a new NPRM to address the scope of the RFOA
defense. Accordingly, before finalizing its regulations concerning
disparate impact under the ADEA, the Commission intends to publish a
new NPRM proposing to amend its regulations concerning RFOA.
Consistent with section 4(c) of Executive Order 12866, this statement
was reviewed and approved by the Acting Chairman of the Agency. The
statement has not been reviewed or approved by the other members of the
Commission.
_______________________________________________________________________
EEOC
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PROPOSED RULE STAGE
-----------
155. REASONABLE FACTORS OTHER THAN AGE UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT
Priority:
Other Significant
Legal Authority:
29 USC 628
CFR Citation:
29 CFR 1625.7(b),(c)
Legal Deadline:
None
Abstract:
On March 31, 2008, the EEOC published a Notice of Proposed Rulemaking
(NPRM) concerning disparate impact under the Age Discrimination in
Employment Act. 73 FR 16807 (March 31, 2008). In addition to requesting
public comment on the proposed rule, the Commission asked whether
regulations should provide more information on the meaning of
``reasonable factors other than age'' (RFOA) and, if so, what the
regulations should say. After consideration of the public comments, and
in light of the Supreme Court decisions in Smith v. City of Jackson,
544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 554 U.S.
------, 128 S. Ct. 2395 (2008), the Commission believes it is
appropriate to issue a new NPRM to address the scope of the RFOA
defense. Accordingly, before finalizing its regulations concerning
disparate impact under the ADEA, the Commission intends to publish a
new NPRM proposing to amend its regulations concerning RFOA.
Statement of Need:
In Smith v. City of Jackson, the Supreme Court affirmed that disparate
impact is a cognizable theory of discrimination under the ADEA but
indicated that ``reasonable factors other than age,'' not ``business
necessity,'' is the appropriate model for the employer's defense
against an impact claim. In Meacham v. Knolls Atomic Power Lab., the
Supreme Court ruled that the employer has the RFOA burden of
persuasion. Current EEOC regulations do not define the meaning of
``RFOA.'' The EEOC is revising its regulations to address the scope of
the RFOA defense.
Summary of Legal Basis:
The ADEA authorizes the EEOC ``to issue such rules and regulations it
may consider necessary or appropriate for carrying out this chapter. .
..'' 29 U.S.C. section 628.
Alternatives:
The Commission will consider all alternatives offered by the public
commenters.
Anticipated Cost and Benefits:
Preliminary estimates of anticipated costs and benefits have not been
determined at this time. The Commission will explore options for
conducting a cost benefit analysis for this regulatory action if
necessary. This revision to EEOC's regulation, informed by the comments
of stakeholders, will be beneficial to courts, employers, and employees
seeking to interpret, understand, and comply with the ADEA.
Risks:
The proposed regulation will reduce the risks of liability for
noncompliance with the statute by clarifying the RFOA defense. The
proposal does not address risks to public health, safety, or the
environment.
Timetable:
_______________________________________________________________________
Action Date FR Cite
_______________________________________________________________________
NPRM 02/00/10
Regulatory Flexibility Analysis Required:
No
[[Page 64341]]
Small Entities Affected:
Businesses, Governmental Jurisdictions, Organizations
Government Levels Affected:
Federal, Local, State, Tribal
Agency Contact:
Dianna B. Johnston
Assistant Legal Counsel, Office of Legal Counsel
Equal Employment Opportunity Commission
131 M Street NE
Washington, DC 20507
Phone: 202 663-4657
Fax: 202 663-4639
Email: dianna.johnston@eeoc.gov
RIN: 3046-AA87
_______________________________________________________________________
EEOC
-----------
FINAL RULE STAGE
-----------
156. REGULATIONS TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS OF THE
AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT
Priority:
Other Significant
Legal Authority:
42 USC sec 12116 and sec 506 as redesignated under the ADA Amendments
Act of 2008
CFR Citation:
29 CFR 1630
Legal Deadline:
None
Abstract:
The Americans With Disabilities Act Amendments Act of 2008 (``the
Amendments Act'') was signed into law on September 25, 2008, with a
statutory effective date of January 1, 2009. EEOC proposes to revise
its Americans With Disabilities Act (ADA) regulations and accompanying
interpretative guidance (29 CFR part 1630 and accompanying appendix) in
order to implement the ADA Amendments Act of 2008. Pursuant to the 2008
amendments, the definition of disability under the ADA shall be
construed in favor of broad coverage to the maximun extent permitted by
the terms of the ADA, and the determination of whether an individual
has a disability should not demand extensive analysis. The Amendments
Act rejects the holdings in several Supreme Court decisions and
portions of EEOC's ADA regulations. The effect of these changes is 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.
Statement of Need:
This regulation is necessary to bring the Commission's regulations into
compliance with the ADA Amendments Act of 2008, which became effective
January 1, 2009, and explicitly invalidated certain provisions of the
existing regulations. The Amendments Act retains the terminology of the
ADA's basic definition of ``disability'' as an impairment that
substantially limits one or more major life activities, a record of
such an impairment, or being regarded as having such an impairment.
However, it changes the way that these statutory terms should be
interpreted in several ways, therefore necessitating revision of the
existing regulations and interpretive guidance contained in the
accompanying ``Appendix to Part 1630--Interpretive Guidance on Title I
of the Americans With Disabilities Act,'' which are published at 29 CFR
part 1630. The proposed revisions to the title I regulations and
appendix are intended to enhance predictability and consistency between
judicial interpretations and executive enforcement of the ADA as now
amended by Congress.
Summary of Legal Basis:
Section 506 of the Amendments Act, 42 U.S.C. section 2000ff-10, gives
the EEOC the authority to issue regulations implementing the
definitions of disability in section 12102 of this title (including
rules of construction) and the definitions in section 12103 of this
title, consistent with the ADA Amendments Act of 2008.
Alternatives:
None: Congress mandated issuance of regulations.
Anticipated Cost and Benefits:
For those employers that have 15 or more employees and are therefore
covered by Amendments Act, the potential economic impact stems from the
likelihood that due to the broader interpretation of ``substantially
limited in a major life activity,'' more employees will be covered
under the first two prongs of the definition of disability, and thus
potentially entitled to reasonable accommodations that do not pose an
undue hardship. However, the Amendments Act does not change the scope
of the accommodation obligation itself, or the definition of the
``undue hardship'' defense as ``significant difficulty or expense.''
The Amendments Act also reverses at least three courts of appeals
decisions that previously permitted individuals who were merely
``regarded as'' individuals with disabilities to potentially be
entitled to reasonable accommodation. This change narrows the financial
impact of the ADA on employers. While many individuals with
disabilities do not request or need a reasonable accommodation,
statistical studies have repeatedly shown that when reasonable
accommodation is required by an individual with a disability, it is far
less expensive than many employers suspect.
Risks:
The proposed rule imposes no new or additional risk to employers. The
proposal does not address risks to public health, safety, or the
environment.
Timetable:
_______________________________________________________________________
Action Date FR Cite
_______________________________________________________________________
NPRM 09/23/09 74 FR 48431
NPRM Comment Period End 11/23/09
Final Action 07/00/10
Regulatory Flexibility Analysis Required:
No
Small Entities Affected:
Businesses, Governmental Jurisdictions, Organizations
Government Levels Affected:
Federal, Local, State, Tribal
Agency Contact:
Christopher Kuczynski
Assistant Legal Counsel, Office of Legal Counsel
Equal Employment Opportunity Commission
131 M Street NE
Washington, DC 20507
Phone: 202 663-4665
TDD Phone: 202 663-7026
Fax: 202 663-4639
Email: christopher.kuczynski@eeoc.gov
RIN: 3046-AA85
BILLING CODE 6570-01-S
