[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: [email protected]
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: [email protected]
RIN: 3046-AA85
BILLING CODE 6570-01-S