What You Should Know about the EEOC and Ensuring Clear and Accurate Guidance
Outreach and education are critical tools to prevent discrimination, and the EEOC works with hundreds of thousands of employees and employers every year to educate them on their legal rights and responsibilities. As part of this effort, the
EEOC is committed to providing guidance and information to our stakeholders that is current, accurate, and clear.
Since the EEOC began issuing guidance documents in the 1980s, there have been many changes in the laws we enforce. Some of EEOC's guidance and technical assistance documents have been superseded by legislation, court decisions, or newer and
more complete guidance. Other guidance documents have become outdated because they were limited to narrow fact patterns that now rarely, if ever, arise.
An internal work group has been reviewing EEOC's guidance and technical assistance documents with these criteria in mind and has identified some that are candidates for updating or rescission. Guidance that needs to be updated will go
through an appropriate Commission process for drafting and approval, including public input and Commission votes.
All documents being considered for rescission will be circulated to EEOC staff, as well as to Commissioners and the General Counsel, for comment regarding whether rescission is appropriate. Additionally, guidance documents, which were
originally adopted by Commission vote, can be rescinded only by Commission vote. Technical assistance documents, which were not approved by Commission vote, will be withdrawn at the EEOC Chair's discretion after notice to the
The documents approved for rescission, by Commission vote when required, are listed below. This is an ongoing process and this list will be updated as additional rescissions are approved.
- Policy Guidance on the Compulsory Retirement of Tenured Faculty Members (1989). The Age Discrimination in Employment Act Amendments of
1986 created an exception for certain tenured faculty to the ADEA's general prohibition of mandatory retirement ages, thereby allowing compulsory retirement. The exception was repealed in 1993.
- Policy Statement on the Issue of Whether the Commission Can Assert Jurisdiction Over Charges/Complaints Raising Issues of Discrimination Based on Age Arising from the
Implementation of an Integrated Seniority List Developed Pursuant to an Airline Merger Approved Under the Federal Aviation Act (FAA) by the Department of Transportation (DOT) (1987). This document explains the EEOC's position that it has
jurisdiction to consider whether an integrated seniority list violates the ADEA, a narrow issue that rarely arises.
- Policy Statement: Employer Standing to Bring a Charge of Discrimination Against a Labor Organization (1987). Should this discrete issue arise, the
Supreme Court's decision in Thompson v. North Am. Stainless, LP, 562 U.S. 170 (2011) would be controlling authority.
- Policy Guidance on Cases Involving the Definition of Willful Violation Under the Age Discrimination in Employment Act (ADEA) for Purposes of
Liquidated Damages and the Statute of Limitations (1989). This document is superseded by amendments to the ADEA adopted in the Civil Rights Act of 1991, and the Supreme Court's decision in McLaughlin v. Richland Shoe, 486 U.S. 128
- Interpretive Memorandum: Martin v. Wilks, 109 S. Ct. 2180 (1989). This document discusses the effect of the
Martin v. Wilks decision, which upheld the right of nonparties to challenge a consent decree. This decision primarily affected the processing of charges involving affirmative action, but it was partially overturned by the Civil Rights Act
- Policy Guidance on Cases Involving Charging Parties Who Have Been Disqualified by Bona Fide Occupational Qualifications or Other Age-Based
Statutory Provisions and Not Given the Same Options Afforded Employees Disqualified for Reasons Unrelated to Age (1989). This guidance addresses a narrow issue that rarely arises.
- Policy Guidance on the Processing of Charges Where There Is a Collective Bargaining Agreement or an Individual Employment
Contract Requiring the Arbitration of Age Discrimination Related Issues (1990). This guidance is contrary to subsequent Supreme Court decisions, including Gilmer v Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).
- Enforcement Guidance on the Effect of Section 112 of the Civil Rights Act of 1991 on the Supreme Court's Decision in Lorance v. AT&T Technologies, Inc. and Charges
Involving Seniority Systems (1993). The Commission's decision to rescind this document reflects its determination that agency employees and the public no longer require additional guidance on how the Civil Rights Act of 1991 superseded
the Supreme Court's holding in Lorance v. AT&T Technologies, Inc.
- Enforcement Guidance on St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This document provides guidance on the Supreme Court's
decision in Hicks, which addressed disparate treatment principles under EEO law. Subsequent EEOC guidance provides more detailed and up-to-date discussions of the same principles. These documents include the Compliance Manual Section on Race and Color Discrimination (2006), Enforcement Guidance on Unlawful Disparate Treatment of
Workers with Caregiving Responsibilities (2007), Enforcement Guidance on Pregnancy Discrimination and Related Issues (2015), and Enforcement Guidance on National Origin Discrimination (2016).
- Compliance Manual Section 902: Definition of the Term "Disability" (March 1995). Much of this document's content has been superseded by
enactment of the Americans with Disabilities Act Amendments Act in 2008 and the EEOC's 2011 regulations implementing that law.
- EEOC Policy Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person Is a "Qualified Individual with a
Disability" Under the Americans with Disabilities Act of 1990 (ADA) (February 1997). The issue discussed in this guidance was resolved by the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795
- EEOC Policy Guidance on Executive Order 13145: To Prohibit Discrimination in Federal Employment Based on Genetic Information (July 2000). E.O 13145 was
issued more than eight years before the Genetic Information Nondiscrimination Act ("GINA") was enacted and more than 10 years before EEOC issued final regulations implementing Title II
of GINA. Some of the information in the guidance is misleading or outdated. For example, the Executive Order permitted federal agencies to collect family medical history related to current medical conditions that were the subject of lawful
medical examinations of employees. Title II of GINA, which applies to private, state and local, and federal employers, categorically prohibits acquisition of family medical history as part of an otherwise lawful employment-related medical
Technical Assistance Documents
- How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers. This
document was published several years before enactment of the ADA Amendments Act. Consequently, its detailed discussion of "disability," both in the first part of the document and in connection with the document's discussion of the relationship of
the ADA and the FDA Food Code, reflects a much more stringent standard than the current standard for establishing that a condition is a disability. The document also refers to an outdated version of the food code. Moreover, the document addresses
several issues - such as the rules concerning the kinds of health-related questions that employers may and may not ask of applicants and employees, and the obligation to make reasonable accommodations - that are discussed more fully in other