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


Part XXII





Equal Employment Opportunity Commission





_______________________________________________________________________



Semiannual Regulatory Agenda

[[Page 23600]]



EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)                         


  



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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Ch. XIV

Semiannual Regulatory Agenda

AGENCY:  Equal Employment Opportunity Commission.

ACTION:  Semiannual Regulatory Agenda.

_______________________________________________________________________

SUMMARY:  The Equal Employment Opportunity Commission (EEOC or 
Commission) is publishing its semiannual regulatory agenda pursuant to 
Executive Order 12866, 58 FR 51735, and the Regulatory Flexibility Act, 
5 U.S.C. chapter 6. The agenda lists all regulations that are scheduled 
for review or development during the next 12 months or that have been 
finalized since the publication of the last agenda.

FOR FURTHER INFORMATION CONTACT:  Ellen J. Vargyas, Legal Counsel, 
Office of Legal Counsel, Equal Employment Opportunity Commission, 1801 
L Street NW., Washington, DC 20507; telephone (202) 663-7197.

SUPPLEMENTARY INFORMATION:  The Commission has identified six items for 
inclusion in this regulatory agenda.

Signed in Washington, DC, this 24th day of February 2000.

For the Commission.

 Ida L. Castro,

Chairwoman.

                          Equal Employment Opportunity Commission--Proposed Rule Stage
----------------------------------------------------------------------------------------------------------------
                                                                                                    Regulation
 Sequence                                          Title                                          Identification
  Number                                                                                              Number
----------------------------------------------------------------------------------------------------------------
3539        Federal Sector Equal Employment Opportunity.........................................     3046-AA57
----------------------------------------------------------------------------------------------------------------


                            Equal Employment Opportunity Commission--Final Rule Stage
----------------------------------------------------------------------------------------------------------------
                                                                                                    Regulation
 Sequence                                          Title                                          Identification
  Number                                                                                              Number
----------------------------------------------------------------------------------------------------------------
3540        Waivers of Rights and Claims: Tender Back of Consideration..........................     3046-AA68
3541        Clarification of Standards in Interpretive Appendix to ADA Regulations Regarding         3046-AA70
            Mitigating Measures.................................................................
----------------------------------------------------------------------------------------------------------------


                           Equal Employment Opportunity Commission--Long-Term Actions
----------------------------------------------------------------------------------------------------------------
                                                                                                    Regulation
 Sequence                                          Title                                          Identification
  Number                                                                                              Number
----------------------------------------------------------------------------------------------------------------
3542        Procedures--The Age Discrimination in Employment Act................................     3046-AA54
3543        Disparate Impact Under the Age Discrimination in Employment Act (ADEA)..............     3046-AA64
3544        Conforming Treatment of Federal Sector Administrative Judge Decisions...............     3046-AA71
----------------------------------------------------------------------------------------------------------------

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)      Proposed Rule Stage


  



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3539. FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY

Priority: Other Significant

Legal Authority: PL 102-569, The Rehabilitation Act Amendments of 1992; 
42 USC 2000e-16; 29 USC 794a

CFR Citation: 29 CFR 1614

Legal Deadline: None

Abstract: The Commission proposes to change its Federal sector equal 
employment opportunity regulations to implement the Rehabilitation Act 
Amendments of 1992. The 1992 amendments provide that the standards used 
to determine if title I of the Americans with Disabilities Act has been 
violated will apply to complaints of nonaffirmative action employment 
discrimination under section 501 of the Rehabilitation Act.

Statement of Need: The Commission promulgated its latest regulation 
under section 501 of the Rehabilitation Act in April 1992, several 
months before Congress enacted the 1992 Rehabilitation Act Amendments. 
The Commission is thus proposing to amend its section 501 regulation, 
found at 29 CFR 1614.203, to implement the Rehabilitation Act 
Amendments.

Summary of Legal Basis: Pursuant to sections 501 and 505 of the 
Rehabilitation Act, the Commission is authorized to issue such 
regulations as it deems necessary to carry out its responsibilities 
under the Act. The proposed regulatory revisions are not required by 
statute or court order.

Alternatives: The Commission has consulted with stakeholders and has 
considered their suggested alternatives in developing this regulatory 
proposal. In addition, EEOC will publish the proposed regulatory 
amendments for public comment and will consider all offered 
alternatives prior to adoption of a final rule.

[[Page 23601]]

Anticipated Cost and Benefits: The proposed regulatory changes will 
enhance enforcement of the statutory requirements. Federal agencies and 
individuals will have a clearer understanding of their respective 
obligations and rights under the Rehabilitation Act. It is not 
anticipated that this proposal will result in increased costs.

Risks: The proposed regulatory changes will lessen the risk of 
noncompliance with statutory requirements by identifying and providing 
detailed guidance on the appropriate legal standards governing Federal 
sector claims of nonaffirmative action employment discrimination under 
section 501 of the Rehabilitation Act. This proposal does not address 
risks to public health, safety, or the environment.

Timetable:
________________________________________________________________________

Action                            Date                      FR Cite

________________________________________________________________________

NPRM                            03/01/00                    65 FR 11019
NPRM Comment Period End         05/01/00

Regulatory Flexibility Analysis Required: No

Government Levels Affected: Federal

Agency Contact: Carol Miaskoff, Assistant Legal Counsel, Office of 
Legal Counsel, Equal Employment Opportunity Commission, Room 6037, 1801 
L Street NW, Washington, DC 20507
Phone: 202 663-4689
TDD Phone: 202 663-7026
Fax: 202 663-4639

RIN: 3046-AA57
_______________________________________________________________________


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)         Final Rule Stage


  



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3540. WAIVERS OF RIGHTS AND CLAIMS: TENDER BACK OF CONSIDERATION

Priority: Other Significant

Legal Authority: 5 USC 522; 29 USC 628; 42 USC 2000e; 42 USC 12101; 29 
USC 206(d)

CFR Citation: 29 CFR 1625

Legal Deadline: None

Abstract: Following the United States Supreme Court's decision in Oubre 
v. Entergy Operations, Inc., 522 U.S. 422 (1998), the Commission has 
developed proposed regulatory guidance on the status of consideration 
paid for a waiver of rights and claims under the laws it enforces.

Statement of Need: The Equal Employment Opportunity Commission (EEOC or 
Commission) is proposing to adopt legislative regulations addressing 
issues relating to the ``tender back of consideration'' in connection 
with waivers of rights and claims under the Age Discrimination in 
Employment Act of 1967 (ADEA). This issue was addressed by the United 
States Supreme Court in Oubre v. Entergy Operations, Inc., 522 U.S. 422 
(1998). In that decision, the Supreme Court held that an individual was 
not required to return (tender back) consideration (such as improved 
severance benefits, extra money, or early retirement) for a waiver in 
order to allege a violation of the ADEA. Prior to the Supreme Court's 
decision in Oubre, the Federal courts of appeals were split on the 
issue of whether an individual who signed a waiver agreement was 
required to tender back any consideration paid by the employer in order 
to bring a claim under the ADEA. The Commission's proposed legislative 
rule would provide detailed regulatory guidance to the public on the 
tender back issue addressed by the Supreme Court's Oubre decision.

The ADEA was amended by title II of the Older Worker Benefits 
Protection Act of 1990 (OWBPA) to regulate the use of waivers for 
employees 40 years of age or older. Title II of OWBPA sets forth the 
statutory requirements for a valid waiver of rights under the ADEA. The 
Commission conducted a negotiated rulemaking in 1995 and 1996 on ADEA 
waivers under OWBPA. The Rulemaking Committee considered, but agreed 
not to resolve, the tender back issue, and it was not included in the 
regulatory language recommended by the Committee to the Commission. 
EEOC promulgated a final regulation on ADEA waivers at 29 CFR 1625.22 
on June 5, 1998, 63 FR 30624. The preamble to the final regulation 
confirmed that the issues raised in the Supreme Court's Oubre decision 
would not be addressed in that regulation, but that the tender back 
issue would be covered in other EEOC guidance.
Since the enactment of OWBPA, employer and employee representatives 
have expressed continuing interest in receiving guidance on the issue 
of waiver agreements. The use of waiver agreements in the workplace is 
an increasingly common practice, particularly in connection with 
layoffs and reductions-in-force. The Supreme Court recognized in Oubre 
that requiring tender back of consideration, as a condition of bringing 
an ADEA suit, could frustrate the purposes of the statute and lead to 
evasion of OWBPA's waiver requirements. Because of the importance of 
the tender back issue to both employers and employees, and based on 
input from stakeholders, the Commission believes that the public would 
benefit from regulatory guidance in this area.

Summary of Legal Basis: Section 9 of ADEA authorizes the Commission to 
issue such rules and regulations as it may consider necessary or 
appropriate for carrying out the Act. This regulatory proposal is not 
required by statute or court order.

Alternatives: The Commission will consider all alternatives offered by 
public commenters.

Anticipated Cost and Benefits: Providing a clear outline of what is and 
is not permissible concerning issues raised by the Supreme Court's 
Oubre decision will reduce employment disputes and save both employers 
and employees time and unnecessary costs. In addition, regulatory 
guidance on the issue of waiver agreements should result in increased 
voluntary resolution of potential employment disputes, and thereby 
reduce the likelihood of protracted and costly litigation. Finally, 
when necessary, regulatory guidance on tender back of consideration 
paid under waiver agreements will ensure that employees are able to 
challenge the validity of such agreements. It is not anticipated that 
any costs will arise from issuing the proposed regulatory guidance.

Risks: Regulatory guidance on tender back issues will lessen the risk 
that employees will be forestalled from challenging the validity of 
waivers

[[Page 23602]]

under the laws enforced by EEOC in the event that they are unable to 
tender back consideration. The Commission has a substantial interest in 
addressing this risk. The right of individual employees to challenge 
waiver agreements is essential to implement the strong public interest 
in eradicating discrimination in the workplace and is also a vital part 
of the statutory enforcement scheme of the ADEA, as well as the other 
laws enforced by the Commission. The proposed regulation does not 
address risks to public health, safety, or the environment.

Timetable:
________________________________________________________________________

Action                            Date                      FR Cite

________________________________________________________________________

NPRM                            04/23/99                    64 FR 19952
NPRM Comment Period End         06/22/99
Final Action                    09/00/00

Regulatory Flexibility Analysis Required: No

Small Entities Affected: No

Government Levels Affected: State, Local, Federal

Agency Contact: Carol Miaskoff, Assistant Legal Counsel, Office of 
Legal Counsel, Equal Employment Opportunity Commission, Room 6037, 1801 
L Street NW, Washington, DC 20507
Phone: 202 663-4689
TDD Phone: 202 663-7026
Fax: 202 663-4639

RIN: 3046-AA68
_______________________________________________________________________




3541.  CLARIFICATION OF STANDARDS IN INTERPRETIVE APPENDIX TO 
ADA REGULATIONS REGARDING MITIGATING MEASURES

Priority: Info./Admin./Other

Legal Authority: 42 USC sec 12111 et seq

CFR Citation: 29 CFR sec 1630, app sec 1630.2(h); 29 CFR sec 1630, app 
sec 1630.2(j)

Legal Deadline: None

Abstract: The Interpretive Appendix to the Equal Employment Opportunity 
Commission's regulations implementing title I of the Americans with 
Disabilities Act (ADA) currently states that mitigating measures, such 
as medication, should not be considered in assessing whether an 
individual has a disability within the meaning of the ADA. See 29 CFR 
1630.2(h) and (j). The Supreme Court, however, reached the opposite 
conclusion in three recent cases. See Sutton v. United Airlines, 119 S. 
Ct. 2139 (1999); Murphy v. United Parcel Services, 119 S. Ct. 2133 
(1999); Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162(1999). The 
EEOC, therefore, will issue a final rule amending its Interpretive 
Appendix by deleting all references to mitigating measures.

Timetable:
________________________________________________________________________

Action                            Date                      FR Cite

________________________________________________________________________

Final Action                    07/00/00

Regulatory Flexibility Analysis Required: No

Government Levels Affected: State, Local

Agency Contact: Christopher Kuczynski, Assistant Legal Counsel, Office 
of Legal Counsel, Equal Employment Opportunity Commission, 1801 L 
Street NW, Washington, DC 20507
Phone: 202 663-4503
TDD Phone: 202 663-7026
Fax: 202 663-4639

RIN: 3046-AA70
_______________________________________________________________________


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)        Long-Term Actions


  



_______________________________________________________________________




3542. PROCEDURES--THE AGE DISCRIMINATION IN EMPLOYMENT ACT

Priority: Substantive, Nonsignificant

Legal Authority: 29 USC 628, sec 115, Civil Rights Act of 1991

CFR Citation: 29 CFR 1626

Legal Deadline: None

Abstract: Section 115 of the Civil Rights Act of 1991 deleted 
references to the Portal to Portal Act from the private suit provisions 
of the Age Discrimination in Employment Act (ADEA) and replaced them 
with a requirement that suit be filed no later than 90 days after 
termination of proceedings or dismissal of a charge by EEOC. 
Accordingly, section 1626.7(a) is being deleted and section 1626.15(b) 
is being revised because they were both based upon the Portal to Portal 
Act. New sections are being added concerning termination of EEOC 
proceedings and the issuance of notices of the new 90-day limitation 
period.

Timetable:
________________________________________________________________________

Action                            Date                      FR Cite

________________________________________________________________________

NPRM                             To Be                       Determined

Regulatory Flexibility Analysis Required: No

Government Levels Affected: State, Local

Agency Contact: Thomas J. Schlageter, Assistant Legal Counsel, Office 
of Legal Counsel, Equal Employment Opportunity Commission, 1801 L 
Street NW, Washington, DC 20507
Phone: 202 663-4669
TDD Phone: 202 663-7026
Fax: 202 663-4639

RIN: 3046-AA54
_______________________________________________________________________




3543. DISPARATE IMPACT UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT 
(ADEA)

Priority: Substantive, Nonsignificant

Legal Authority: 29 USC 628

CFR Citation: 29 CFR 1625.7 (Revision); 29 CFR 1625.23 (New)

Legal Deadline: None

Abstract: The Commission proposes to issue legislative regulations to 
reaffirm and clarify its long-standing interpretive rule regarding the 
availability of the disparate impact theory under the ADEA. The 
proposed rule also would set forth the nature and order of proof in 
such disparate impact cases.

Timetable: Next Action Undetermined

Regulatory Flexibility Analysis Required: No

Government Levels Affected: None

Agency Contact: Joseph N. Cleary, Assistant Legal Counsel, Office of 
Legal Counsel, Equal Employment Opportunity Commission, 1801 L Street 
NW, Washington, DC 20507
Phone: 202 663-4647
TDD Phone: 202 663-7026

[[Page 23603]]

Fax: 202 663-4639

RIN: 3046-AA64
_______________________________________________________________________




3544.  CONFORMING TREATMENT OF FEDERAL SECTOR ADMINISTRATIVE 
JUDGE DECISIONS

Priority: Substantive, Nonsignificant

Legal Authority: 29 USC 206(d), 633(a), 791 and 794a; 46 USC 2000e-16

CFR Citation: 29 CFR 1614.204

Legal Deadline: None

Abstract: We propose to conform the treatment of decisions by 
administrative judges on class complaints to the treatment of decisions 
by administrative judges on individual complaints; i.e., instead of 
issuing recommended decisions on reports of findings and 
recommendations, administrative judges will issue decisions that 
agencies can either fully implement or appeal.

Timetable: Next Action Undetermined

Regulatory Flexibility Analysis Required: No

Small Entities Affected: No

Government Levels Affected: Federal

Agency Contact: Thomas J. Schlageter, Assistant Legal Counsel, Office 
of Legal Counsel, Equal Employment Opportunity Commission, 1801 L 
Street NW, Washington, DC 20507
Phone: 202 663-4669
TDD Phone: 202 663-7026
Fax: 202 663-4639

RIN: 3046-AA71
[FR Doc. 00-5302 Filed 04-21-00; 8:45 am]
BILLING CODE 6570-01-F
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