[The Regulatory Plan and Unified Agenda of Federal Regulations]
[Equal Employment Opportunity Commission Regulatory Plan]
[From the U.S. Government Printing Office, www.gpo.gov]


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)

Statement of Regulatory Priorities
The Equal Employment Opportunity Commission (EEOC) enforces six 
statutes prohibiting discrimination in employment. 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, prohibits the payment of 
different wages to women and men working in the same establishment, 
performing equal work that requires equal skill, effort, and 
responsibility under similar working conditions, unless the pay 
differential is based on factor(s) other than sex. The Age 
Discrimination in Employment Act of 1967, as amended (ADEA), prohibits 
employment discrimination on the basis of age against people age 40 and 
older. Title I of the Americans with Disabilities Act of 1990, as 
amended (ADA), prohibits employment discrimination against qualified 
individuals with disabilities. Sections 501 and 505 of the 
Rehabilitation Act of 1973, as amended, prohibit Federal agencies from 
discrimination in employment against qualified individuals with 
disabilities and require agencies to accommodate the special needs of 
persons with disabilities. The Government Employee Rights Act of 1991 
extends protections against employment discrimination to certain 
employees who were not previously covered.
The mission of the agency is to ensure equality of opportunity by 
vigorously enforcing Federal legislation prohibiting discrimination in 
employment. Enforcement is accomplished through investigation, 
conciliation, alternative methods of dispute resolution, litigation, 
coordination, and regulation, as well as by education, policy research, 
and technical assistance. In pursuing its mission of eradicating 
discrimination in the workplace, the Commission intends that its 
enforcement be certain and predictable, and that its remedies be 
preventive and remedial in scope.
One important step toward these ends is to make sure that employees, 
employers, and union representatives understand their rights and 
obligations under the Federal laws prohibiting employment 
discrimination. In accordance with the President's national regulatory 
principles, EEOC develops regulations necessary to inform employees and 
employers of their rights and obligations under the statutes it 
enforces. EEOC further educates the public on an ongoing and proactive 
basis, through interpretive guidelines, policy documents, management 
directives, and other public guidance programs.
EEOC is currently considering several significant actions of a 
regulatory nature, which would be published for public comment. The 
Commission is considering issuing guidelines on the requirements of 
title I of the ADA in the context of employer provided health 
insurance. Clear and comprehensive guidelines will reduce confusion and 
uncertainty on the part of insurers, employers, and individuals with 
disabilities as to the application of the ADA to various health 
insurance provisions and practices. In addition to helping employers 
understand the scope of their nondiscrimination responsibilities and 
ensuring that individuals with disabilities are protected from 
prohibited discrimination, these guidelines will provide a source of 
guidance for the courts, thus helping to ensure uniform enforcement of 
the ADA.
The Commission is also considering issuing regulatory guidance on title 
II of the Older Workers Benefit Protection Act of 1990, which amended 
the ADEA to permit knowing and voluntary unsupervised waivers of rights 
and claims arising under the Act. Representatives of both the employer 
and employee communities have strongly demonstrated their interest in 
the issuance of additional guidance in this area. As part of the 
development of a regulation on waivers under the ADEA, the Commission 
is planning to engage in a regulatory negotiation to seek to obtain a 
consensus recommendation to the Commission.
Finally, the Commission is presently reviewing its position on 
apprenticeship programs under the ADEA. The current interpretive 
guideline holds that age limitations for entry into bona fide 
apprenticeship programs are not affected by the ADEA. Due to changing 
circumstances in the work force and structural changes in the 
workplace, the Commission is reviewing its interpretation to determine 
whether it is required by the language of the statute and to assess 
whether it represents sound policy under today's conditions.
(Consistent with section 4(c) of Executive Order 12866, this statement 
was reviewed and approved by the Chairman of the agency. The statement 
has not been reviewed or approved by the other members of the 
Commission.)
_______________________________________________________________________
EEOC

                              -----------

                          PROPOSED RULE STAGE

                              -----------

133. GUIDELINES ON THE APPLICATION OF THE AMERICANS WITH DISABILITIES 
ACT OF 1990 TO EMPLOYER PROVIDED HEALTH INSURANCE
Priority:


Other Significant


Legal Authority:


 42 USC 12111 et seq


CFR Citation:


 29 CFR 1631


Legal Deadline:


None


Abstract:


The Commission proposes to issue guidelines to explain how the 
Americans with Disabilities Act (ADA) applies to employer provided 
health insurance plans. The guidelines will reexamine the issues 
addressed in the Commission's ``Interim Enforcement Guidance on the 
Application of the ADA to Disability-Based Distinctions in Employer 
Provided Health Insurance,'' issued on June 8, 1993. The guidelines 
will also address a number of issues that were not addressed in either 
the Interim Enforcement Guidance or in the Commission regulations 
implementing title I of the ADA, including the ADA's application to 
corporate ``wellness'' programs. The proposed guidelines will be 
published for public comment. After consideration of the comments, the 
Commission will issue final guidelines.


Statement of Need:


Title I of the ADA prohibits employers with 15 or more employees from 
discriminating on the basis of disability in the provision of fringe 
benefits, including employer provided health insurance. Title V of the 
ADA, as applied to title I, permits employers, insurers, and plan 
administrators to continue to establish or observe the terms of health 
insurance plans, engage in risk-based underwriting, and/or use risk 
assessment, risk classification, or other traditional insurance 
practices, so long as these practices are not used as a subterfuge to 
evade the purposes of the ADA, 42 USC 12201(c).
Neither the statute nor its legislative history defines the term 
``subterfuge'' or explains the application of that term to specific 
insurance practices or provisions. This has given rise to confusion and 
uncertainty on the part of insurers, employers, and individuals with 
disabilities, as to the requirements of the ADA in the context of 
employer provided health insurance. The guidelines are necessary to 
alleviate this confusion and uncertainty, thereby reducing potential 
employment discrimination and/or litigation that is based upon a 
misunderstanding of the law.


Summary of the Legal Basis:


The legal basis of authority for these guidelines is set forth above in 
Legal Authority. No aspect of this regulatory action is required by 
statute or court order.


Alternatives:


After careful consideration, the Commission has determined that the 
issuance of these guidelines is the most efficient and effective way to 
clarify the application of the ADA to employer provided health 
insurance, and to ensure uniform enforcement of the ADA in this area.


Anticipated Costs and Benefits:


Clear and comprehensive guidelines will reduce confusion and 
uncertainty on the part of insurers, employers, and individuals with 
disabilities as to the application of the ADA to various health 
insurance provisions and practices. This will help ensure that 
individuals with disabilities are protected from prohibited 
discrimination, and that employers understand the scope of their 
nondiscrimination responsibilities under the law. These guidelines will 
also assist courts confronting these issues to ensure uniform 
enforcement of the ADA.


Risks:


In the absence of these guidelines, confusion and uncertainty with 
respect to the application of the ADA to various health insurance 
provisions and practices may result in prohibited employment 
discrimination against individuals with disabilities. Such confusion 
and uncertainty may also result in unnecessary apprehension on the part 
of employers as to the legality of actions they may take to better 
manage and contain escalating health care costs.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
NPRM                                                           09/00/96
Small Entities Affected:


Undetermined


Government Levels Affected:


Undetermined


Agency Contact:
Peggy R. Mastroianni
Assistant Legal Counsel
Office of Legal Counsel
Equal Employment Opportunity Commission
1801 L Street NW.
Washington, DC 20507
Phone: 202 663-4503
TDD: 202 663-7026
RIN: 3046-AA53
_______________________________________________________________________
EEOC
134. REGULATIONS INTERPRETING TITLE II OF THE OLDER WORKERS BENEFIT 
PROTECTION ACT OF 1990 (OWBPA)
Priority:


Other Significant


Legal Authority:


 29 USC 628


CFR Citation:


 29 CFR 1625


Legal Deadline:


None


Abstract:


The Age Discrimination in Employment Act of 1967 (ADEA) was amended in 
1990 by OWBPA. Title II of OWBPA sets forth the statutory requirements 
for a valid waiver of rights under the ADEA.
Regulations under title II would provide guidance on implementing 
OWBPA's requirements for unsupervised ADEA waivers. As part of the 
development of this regulation, the Commission will engage in a 
regulatory negotiation on waivers of rights and claims under the ADEA.


Statement of Need:


In 1990, Congress amended the ADEA to permit knowing and voluntary 
unsupervised waivers of rights and claims arising under the Act. In 
1992, the Commission published a notice in the  Federal Register 
seeking public comment on various ADEA issues, including the topic of 
waiver agreements. In response to the notice the Commission received 
numerous detailed comments on the waivers provisions which demonstrated 
a need for regulatory guidance. Over the ensuing years, representatives 
of employer and employee communities have expressed a continuing 
interest in receiving such guidance. Waiver agreements are widely used 
in the workplace, particularly when employers find it necessary to 
reduce the size of the workforce. Employees who sign waiver agreements 
are bargaining away important Federal rights in return for some form of 
consideration. Employers are offering additional benefits, sometimes 
quite substantial, in exchange for employee agreements to forgo 
potential recovery in age discrimination lawsuits. Both sides have a 
substantial stake in this area of the law and would benefit from 
regulatory guidance.


Summary of the Legal Basis:


Section 9 of the ADEA authorizes the Commission to issue such rules and 
regulations as it may consider necessary or appropriate for carrying 
out the Act. Moreover, regulatory negotiation is authorized by the 
Negotiated Rulemaking Act of 1990, and is consistent with the 
President's goal of involving stakeholders in the regulatory process.


Alternatives:


The objective of a regulatory negotiation is to seek to obtain a 
consensus recommendation to the Commission. Thus, the process itself 
will involve consideration of various alternatives with the affected 
parties agreeing upon proposed regulatory positions that best serve the 
public interest.


Anticipated Costs and Benefits:


Clear regulatory guidance for the use of waiver agreements should lead 
to increased voluntary resolution of potential employment disputes, 
which in turn will reduce the possibility of protracted and costly 
litigation. At the same time, providing clear regulatory guidance on 
what constitutes a valid waiver agreement will ensure that persons 
enter into such agreements only in a knowing and voluntary manner. It 
is not anticipated that any costs will arise from issuing regulatory 
guidance.


Risks:


Regulatory guidance for drafting and implementing valid waiver 
agreements will lessen the risk that persons might waive important 
Federal civil rights in an unknowing or involuntary manner. The 
Commission has a substantial interest in addressing this risk. The ADEA 
is intended to implement the strong public interest in attaining a 
workplace free of age discrimination. Individual employees serving as 
private attorneys general are an integral part of the ADEA enforcement 
scheme crafted by Congress. Thus, it is of critical import that persons 
who may choose to relinquish their Federal civil rights do so 
voluntarily and with full knowledge. Moreover, other Federal civil 
rights laws enforced by the Commission, for example Title VII, envision 
an important role for aggrieved individuals as private attorneys 
general. Insofar as waiver agreements may be used under statutes other 
than the ADEA, clear guidance will also lessen the risk of abuse in 
those areas.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
ANPRM           57 FR 10626                                    03/27/92
ANPRM Comment Pe57 FR 10626                                    07/27/92
NPRM                                                           09/00/96
Small Entities Affected:


Undetermined


Government Levels Affected:


Undetermined


Agency Contact:
Joseph N. Cleary
Assistant Legal Counsel
Office of Legal Counsel
Equal Employment Opportunity Commission
1801 L Street NW.
Washington, DC 20507
Phone: 202 663-4690
TDD: 202 663-7026
RIN: 3046-AA58
_______________________________________________________________________
EEOC
135. INTERPRETATION RELATING TO APPRENTICESHIP PROGRAMS UNDER THE AGE 
DISCRIMINATION IN EMPLOYMENT ACT (ADEA)
Priority:


Other Significant


Legal Authority:


 29 USC 628


CFR Citation:


 29 CFR 1625.13


Legal Deadline:


None


Abstract:


The current interpretive regulation at 29 CFR 1625.13 is being 
reconsidered to determine if any revision or modification is 
appropriate.


Statement of Need:


The Age Discrimination in Employment Act is intended, in part, to 
promote the employment of older workers based on ability rather than 
age, and to assist employers and workers in meeting problems arising 
from the impact of age on employment. As the agency charged with ADEA 
enforcement responsibility, the Commission has the authority to 
undertake research with a view to reducing barriers to the employment 
of older persons. It also has the authority to review periodically its 
interpretive regulations in light of applicable law and policy. The 
existing Commission interpretation holds that age limitations for entry 
into bona fide apprenticeship programs are not affected by the Act. Due 
to changing circumstances in the workforce and structural changes in 
the workplace, the Commission has decided to review its interpretation 
to determine whether it is required by the language of the Act and to 
assess the policy considerations involved, that is, to determine 
whether the interpretation implements sound policy under present-day 
conditions.


Summary of the Legal Basis:


Section 9 of the ADEA and 5 U.S.C. 301 authorize the Commission to 
issue such rules and regulations as it may consider necessary or 
appropriate for carrying out the Act. Moreover, an agency charged with 
furtherance of the public interest is not bound to a rigid adherence to 
prior positions. Columbia Broadcasting System v. FCC, 454 F.2d 1018, 
1026 (D.C. Cir. 1971).


Alternatives:


The Commission is seeking public comment for the purpose of assessing 
the soundness of the present interpretation as a matter of both law and 
policy. Thus, at the conclusion of the process, the Commission could 
decide to retain the present interpretation, rescind the present 
interpretation, or rescind and replace the present interpretation.


Anticipated Costs and Benefits:


As noted above, one possible course of action would be for EEOC to 
change its interpretation to state that the ADEA applies to 
apprenticeship programs. Anticipated benefits from such a change would 
be a potential increase in training and employment opportunities for 
persons age 40 and older, an increase in the number of skilled workers, 
a more efficient and competitive business sector, an enlarged tax base, 
and a reduction in the cost of various social programs tied to 
unemployment. The anticipated costs of the change are minimal. However, 
it has been argued that the change will increase the costs of running 
apprenticeship programs due to older apprentices leaving the workforce 
before program sponsors realize sufficient returns on their training 
investment. It has been further argued that this increase in costs will 
result in the discontinuation of some apprenticeship programs and in an 
overall reduction in the number of apprenticeship opportunities. The 
Commission will carefully assess such arguments after receiving public 
comment.


Risks:


Under the ADEA, an employer who acts in good faith, in conformity with, 
and in reliance on any written interpretation of the Commission is 
insulated from liability. Although a reassessment is entirely a matter 
of agency discretion, the risk of not conducting a reassessment is that 
the present interpretation could unduly limit opportunities for job 
mobility and/or for persons to reenter the workforce.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
NPRM            60 FR 51762                                    10/03/95
NPRM Comment Period End                                        12/04/95
Small Entities Affected:


Undetermined


Government Levels Affected:


Undetermined


Agency Contact:
Joseph N. Cleary
Assistant Legal Counsel
Office of Legal Counsel
Equal Employment Opportunity Commission
1801 L Street NW.
Washington, DC 20507
Phone: 202 663-4690
TDD: 202 663-7026
RIN: 3046-AA59
BILLING CODE 6570-06-F