The U.S. Equal Employment Opportunity Commission's (EEOC's) Plan for Retrospective Analysis of Existing Rules (Final Plan), submitted to the Office of Management and Budget (OMB) in July 2011, summarized and responded to the public comments the EEOC received regarding its Preliminary Retrospective Regulatory Review Plan (Preliminary Plan).(1) The following are updated responses.
In June 2011, the EEOC sought public input about its Preliminary Plan.(2) Since then, the EEOC has received 87 comments regarding its Preliminary and Final Plans for Retrospective Analysis of Existing Rules from civil rights groups, unions, plaintiff-side attorneys, employer and consultant groups, EEOC staff, and members of the public.(3)
A number of comments suggested that the EEOC issue, update, or repeal enforcement guidance or other sub-regulatory policy documents. Other comments proposed legislative changes. Executive Order 13563 directs agencies to review and "modify, streamline, expand, or repeal" "existing significant regulations."(4) Executive Order 13563 does not apply either to regulations that are not "significant" or to sub-regulatory material. Nor does the executive order require the EEOC to evaluate proposals for legislative changes. Accordingly, these responses focus on comments that relate to subject matter in existing regulations.(5)
The EEOC continues to solicit comments regarding regulatory review through a dedicated email account, Public.Comments.RegulatoryReview@eeoc.gov.
The EEOC received several comments regarding the process by which it should review existing regulations. Littler Mendelson and the Chamber of Commerce recommended that the EEOC expand its review to include all guidance and policy documents, rather than limiting review to significant regulations. In addition, Littler Mendelson suggested that increased use of Advanced Notices of Proposed Rulemaking (ANPRMs) would enhance the rulemaking process by enabling the EEOC to consider and address the potential impact of proposed rules on businesses earlier in the rulemaking process.
The EEOC includedan ANPRM on its Fall 2013 Regulatory Agenda, and will continue to consider issuing ANPRMs, where appropriate, for anticipated regulatory updates or revisions.(6) We also note that Chair Jacqueline Berrien has instituted a policy of holding Commission meeting records open for 15 days to allow members of the public to submit written comments to the EEOC on issues addressed at the meeting. Since that policy was implemented, the EEOC has received hundreds of written submissions from members of the public.
The American Association of University Women (AAUW), AARP, and the National Women's Law Center (NWLC) asserted that cost-benefit analysis should not be a primary factor in retrospective regulatory review, noting that both the EEOC and the OMB have already performed cost-benefit analyses of EEOC regulations. NWLC recommended that, consistent with Executive Order 13563, the EEOC consider "equity, human dignity, fairness, and distributive impacts" when reviewing existing regulations.(7) NWLC also noted that "clear and comprehensive regulations . . . discourage meritless litigation" and protect the integrity of the labor market by preventing employers from gaining a competitive advantage as a result of discriminatory policies or practices. The Consortium for Citizens with Disabilities (CCD) recommended that EEOC consider the costs associated with the lack of "robust protections" for individuals with disabilities, including "[t]he social costs of isolating and impoverishing individuals with disabilities," the costs of depriving the workforce of available skill and talent, and the "enormous financial cost of supporting individuals through public benefits rather than permitting them to be productive workers and taxpaying citizens."
As indicated in the EEOC's Final Plan, "[m]any of the EEOC's regulations create important benefits that stem from 'values that are difficult or impossible to quantify,' including 'equity, human dignity, fairness and distributive impacts.'"(8) The benefits of equal employment opportunity, while difficult or impossible to quantify, certainly are important to the welfare of the nation and its economy. The EEOC thus routinely provides cost-benefit and economic impact analyses required by Executive Order 12866, Executive Order 13563, the Paperwork Reduction Act, the Regulatory Flexibility Act, the Unfunded Mandates Reform Act, and other applicable laws and mandates.
The National Partnership for Women & Families requested that the EEOC update its guidance on employer liability for supervisor harassment. Jan Duffy recommended that the EEOC issue guidance on "effective prevention and correction of discrimination, harassment, and retaliation in the workplace." The EEOC's Guidelines on Discrimination Because of Sex are included in the EEOC's Retrospective Regulatory Review Status Report, with review anticipated to begin in 2016.
The AAUW recommended that the EEOC issue guidance on gender-based affirmative action. The EEOC's affirmative action guidelines are included in the EEOC's Retrospective Regulatory Review Status Report.
Derek Rolle recommended that the EEOC ensure that non-religious individuals are protected from religious discrimination. The EEOC's Guidelines on Discrimination Because of Religion cover discrimination based on a lack of religious belief. These guidelines are included in the EEOC's Retrospective Regulatory Review Status Report.
The Leadership Conference on Civil and Human Rights (LCCR) recommended that the EEOC
issue a final rule to implement the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The final rule was published in the Federal Register on March 25, 2011.(9)
Several comments suggested a variety of revisions to the EEOC's disability discrimination regulations. Gerry Scott suggested that the EEOC clarify reasonable accommodation requirements to ensure that employers understand their responsibilities and to prevent unnecessary delays or denials of accommodations. In June 2011, the EEOC held a Commission meeting on leave as a reasonable accommodation.(10) The EEOC has also issued guidance documents, fact sheets, question and answer documents, and other publications to help applicants, employees, and employers understand their reasonable accommodation rights and responsibilities under the ADA and the Rehabilitation Act.(11) In addition, the EEOC has conducted hundreds of outreach events regarding disability discrimination.
Tosh Anderson requested that the EEOC clarify the type of medical inquiries that are prohibited by the ADA and the Rehabilitation Act in light of Lee v. City of Columbus.(12) The disability discrimination regulations do not currently address whether an employer may request or require employees to provide general medical diagnoses to substantiate the use of sick leave. The EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act states that a covered entity may request doctors' notes or other explanations for leave, as long as it requires all employees, with and without disabilities, to do so.(13)
The National Business Group on Health and the Burton Blatt Institute recommended that the EEOC review regulations and issue guidance regarding the legality of wellness program incentives under federal employment discrimination laws. In May 2013, the EEOC held a Commission meeting on wellness programs under federal equal employment opportunity laws.(14) At the meeting, seven witnesses representing the federal government, the civil rights community, the business community, and health care organizations discussed the benefits of wellness programs, relevant legal restrictions, and the need for clarification regarding certain types of medical inquiries and the use of monetary penalties and incentives to encourage employee participation. The EEOC is considering whether to issue regulations or guidance on the application of the ADA and GINA to the use of financial incentives in wellness programs.
The Burton Blatt Institute also recommended that the EEOC: (1) address the interaction between Sections 501, 504, and 508 of the Rehabilitation Act; and (2) review regulations and guidance regarding Sections 503 and 504 of the Rehabilitation Act in light of the Office of Federal Contract Compliance Program's (OFCCP's) disability-based affirmative action ANPRM and the ADAAA. The EEOC reviewed the OFCCP's updated regulations implementing Section 503.(15) CCD suggested that the EEOC review and revise its Section 501 regulations to address affirmative action compliance. The EEOC plans to conduct a rulemaking in 2014 on revisions to the federal sector's affirmative employment obligations regarding individuals with disabilities under Section 501 of the Rehabilitation Act.(16) In particular, the EEOC plans to revise the regulations regarding the Federal Government's affirmative employment obligations in 29 CFR part 1614 to include a more detailed explanation of how Federal agencies and departments should "give full consideration to the hiring, placement and advancement of qualified individuals with disabilities."(17)
In addition, the EEOC's disability discrimination regulations are included in the EEOC's Retrospective Regulatory Review Status Report.
AARP, LCCR, and the Chamber of Commerce recommended that the EEOC finalize its proposed revision of the Age Discrimination in Employment Act regulations to address disparate impact and reasonable factors other than age. The Society for Human Resource Management (SHRM) reiterated its concern regarding the proposed ADEA regulations. The final rule was published in the Federal Register on March 30, 2012.(18) In the final rule, the EEOC addressed public comments it received as a result of two prior NPRMs.
AARP requested that the EEOC reevaluate and withdraw its Retiree Health Rule.(19) AARP also requested that the EEOC "narrow the damaging effects of the Gross decision under the ADEA and other civil rights laws."
AARP, LCCR, John King, Charles Small, Kimberly Williams, and Margot Lee expressed concern that employers are screening applications based on applicants' ages. In particular, AARP and LCCR requested that the EEOC determine whether to prohibit employers from requesting applicants' ages or dates of birth on applications. H.H. recommended that employers be audited regularly to determine whether age discrimination may be occurring.
Eliminating barriers in recruitment and hiring is one of the six national priorities in the EEOC's Strategic Enforcement Plan.(20) The Strategic Enforcement Plan specifically identifies screening practices, such as the use of date-of-birth inquiries, that could discriminate against older workers.(21)
Moreover, the EEOC's age discrimination regulations, which encompass the issues above, are included in the EEOC's Retrospective Regulatory Review Status Report.
Several comments requested that the EEOC revise the Uniform Guidelines on Employee Selection Procedures (UGESP) to ensure consistency with current scientific knowledge and practice; provide clarity to employers, federal agencies, and the courts; and address practical EEO enforcement issues. In addition, the Society for Industrial and Organizational Psychology, Hogan Assessment Systems, and the Center for Corporate Equality recommended that the EEOC revise the disparate impact four-fifths standard and address the legality of alternatives to the four-fifths rule.
UGESP is included in the EEOC's Retrospective Regulatory Review Status Report.(22)
The EEOC received several comments regarding the private sector charge process. A few comments addressed the efficiency and effectiveness of the enforcement process. Ronald Davis requested that the EEOC revise its charge assessment process to ensure that agency time and resources are devoted to addressing meritorious charges. SHRM suggested that the EEOC revise its enforcement practices to establish a "nationwide, uniform enforcement and litigation strategy." Theresa Ellis recommended that the EEOC review its regulations and procedures to incorporate court rulings and to address the relationship between the federal and state complaint systems.
Other comments proposed discrete changes to the enforcement process. Jon Hansen requested that the EEOC decline to issue right to sue notices if investigations reveal no evidence of discrimination. However, when it dismisses a charge, the EEOC is legally required to issue a notice of right to sue giving the charging party a right to file a lawsuit.(23)
Ronnie Clarke recommended that the EEOC revise the right to sue notice and accompanying determination letter, as appropriate, to explain the findings in greater detail and to deter employers from engaging in discrimination in the future.
In its Strategic Enforcement Plan, the EEOC committed to "undertake an integrated approach to its work - one that mobilizes all segments of agency operations and emphasizes effectiveness, efficiency, and consistency."(24) The EEOC also affirmed the importance of strategically using its limited resources "to prevent and remedy discriminatory practices where government enforcement is most likely to achieve broad and lasting impact."(25) Moreover, the EEOC has been developing a Quality Control Plan for Investigations and Conciliations, a process which has included numerous opportunities for public input.(26)
Sharon Thomas recommended that the EEOC discontinue referring local and state employee discrimination cases to state Attorneys General to avoid potential conflicts of interest. The EEOC does not refer discrimination cases involving state or local government employees to state Attorneys General. Rather, the EEOC refers such cases to the U.S. Attorney General when it does not obtain voluntary compliance, as required by law.(27) Ms. Thomas also suggested that attorneys be provided to government complainants. Title VII permits courts to appoint attorneys upon request "in such circumstances as the court may deem just."(28) Moreover, EEOC district offices provide referrals to local and state bar associations upon request.
The EEOC's procedural regulations at 29 C.F.R. part 1601 are included in the EEOC's Retrospective Regulatory Review Status Report, with review anticipated to begin in 2014.
Several comments recommended that EEOC revise the federal sector EEO process. MLane suggested that the EEOC enhance the neutrality of the federal sector process, in consultation with relevant stakeholders; repeal or "extensively revise" 29 C.F.R. part 1614; require the same enforcement process for private sector and federal sector complaints; disclose the process for selecting, training, reviewing, and disciplining EEOC Administrative Judges (AJs); publicize the process for filing complaints against AJs; and strengthen communication with federal employees. MLane and Lisa Siegle recommended that the EEOC improve federal sector data availability. LaVerne suggested that the EEOC revise 29 C.F.R. § 1614.502(c) to require agencies to provide prompt relief to victims of discrimination. Ronald Belfon recommended that the EEOC revise the class certification process; specify the time frame for filing an appeal; provide for continued processing of discrimination claims after private lawsuits have been filed, in certain circumstances; revise the time frame for agency compliance with remedial orders; and revise the final action and remedy provisions to provide greater protection for employees. William Brawner suggested that the EEOC direct federal sector investigations; provide complainants with the authority to file complaints directly with the EEOC; revise the deadline for issuing a report of investigation; subject agencies to penalties for failing to comply with regulatory deadlines; and improve the system for recusing judges.
The Council of Federal EEO and Civil Rights Executives recommended that the EEOC revise 29 C.F.R. part 1614 to provide for alternative dispute resolution; require agencies to appoint EEO Directors, Officers, Special Emphasis Program Managers, and administrative staff; require agency staff to cooperate with EEO Program staff and with the EEOC; and amend the EEO complaint investigation and dismissal procedures.
The Administrative Judges Association suggested that the EEOC permit agencies to conduct pilot complaint processing projects; require agencies to notify complainants about their hearing rights; authorize AJs to make final decisions on class complaints and provide for expedited appeal processing of class certification decisions; require agencies to comply with EEOC management directives and bulletins; require agencies and encourage complainants to submit filings electronically; appoint Administrative Law Judges to hear federal sector discrimination cases; and amend the organizational reporting structure for AJs.
As indicated in the attached Retrospective Regulatory Review Status Report, the EEOC has made initial revisions to the federal sector EEO complaint process. The EEOC plans to issue an ANPRM regarding additional federal sector EEO process issues by October 2014. The EEOC also plans to issue an updated Federal Sector Complaint Processing Manual (MD-110) in 2014.
Several comments suggested that the EEOC enhance or revise the type of data it collects. The National Partnership for Women & Families, NWLC, AAUW, LCCR, and Tri-County Independent Living Center, Inc. (Tri-County) recommended that the EEOC collect compensation data. LCCR, the American Association of People with Disabilities, and Tri-County suggested that the EEOC collect data on the employment of people with disabilities, although Tri-County cautioned that disability information should be categorized generally and specific medical diagnoses should not be requested. LCCR suggested that the EEOC collect more refined race data. Winston H. Jordan, Jr. recommended that the EEOC make EEO-1 data public.
Regarding pay data collection, in 2010, the EEOC commissioned a report by the National Research Council of the National Academies, Collecting Compensation Data from Employers; Panel on Measuring and Collecting Pay Information from U.S. Employers by Gender, Race, and National Origin. The report was issued in August 2012. The EEOC, OFCCP, and the Department of Justice are working in close coordination to develop integrated, complementary plans for pay data collection. Regarding the suggestion that EEOC make EEO-1 data public, the EEOC is legally required to keep such information confidential.(29)
The EEOC appreciates the feedback it has received regarding its retrospective review of existing rules. We are confident that public participation strengthens our retrospective regulatory review process and enhances our ability to stop and remedy unlawful employment discrimination and achieve justice and equality in the workplace. We invite the public to continue to provide feedback regarding the Plan to Public.Comments.RegulatoryReview@eeoc.gov. We will continue to consider these comments as we proceed with our retrospective regulatory review.
1 EEOC, Equal Employment Opportunity Commission Plan for Retrospective Analysis of Existing Rules (2011), http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm
2 Press Release, EEOC Seeks Public Comment On Plan To Review Its Significant Regulations (June 6, 2011), http://www.eeoc.gov/eeoc/newsroom/release/6-6-11.cfm.
3 Comments previously submitted to EEOC regarding the EEOC's Retrospective Regulatory Review Plan are available at http://www.eeoc.gov/laws/regulations/comment_retrospective.cfm.
4 Exec. Order No. 13563, 76 Fed. Reg. 3,821 (Jan. 21, 2011).
5 The EEOC reviews and revises sub-regulatory documents consistent with the EEOC's Strategic Plan for Fiscal Years 2012 - 2016, which requires the EEOC to "[p]rovide up-to-date and accessible guidance on the requirements of employment discrimination laws" and to "review, update, and/or augment [sub-regulatory guidance] with plain language materials . . . , if necessary." EEOC, United States Equal Employment Opportunity Commission Strategic Plan for Fiscal Years 2012 - 2016 11, 12, 24 (2012), http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16.cfm.
6 The EEOC's Fall 2013 Regulatory Agenda is available at http://resources.regulations.gov/public/component/main?main=UnifiedAgenda (select "Equal Employment Opportunity Commission" from the list of agencies).
7 See Exec. Order No. 13563, 76 Fed. Reg. 3,821 (Jan. 21, 2011) ("Where appropriate and permitted by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.").
8 Final Plan, supra note 1, at IV.i.
9 Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 76 Fed. Reg. 16,978 (Mar. 25, 2011) (codified at 29 C.F.R. pt. 1630).
10 A video, transcript and witness statements for the June 8, 2011 Commission meeting are available at http://www.eeoc.gov/eeoc/meetings/6-8-11/index.cfm.
11 See, e.g., EEOC, Disability Discrimination, http://www.eeoc.gov/laws/types/disability.cfm (technical assistance documents listed at the bottom of the page); EEOC, Selected Enforcement Guidances and Other Policy Documents on the ADA, http://www.eeoc.gov/laws/types/disability_guidance.cfm (additional guidance and policy documents).
12 636 F.3d 245 (6th Cir. 2011).
13 EEOC, EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act C.15, http://www.eeoc.gov/policy/docs/guidance-inquiries.html#8 (last modified Mar. 24, 2005). The guidance does not indicate whether a diagnosis can be required as part of such a doctor's note or other explanation, but we note that the EEOC recently obtained a $2 million settlement in a class case in which the Commission argued that a company violated the ADA by requiring a diagnosis as part of its sick leave verification requirement. Press Release, Dillard's to Pay $2 Million to Settle Class Action Disability Discrimination Lawsuit by EEOC (Dec. 18, 2012), http://www.eeoc.gov/eeoc/newsroom/release/12-18-12.cfm.
14 A video, transcript and witness statements for the May 8, 2013 Commission meeting are available at http://www.eeoc.gov/eeoc/meetings/5-8-13/index.cfm.
15Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Individuals With Disabilities, 78 Fed. Reg. 58,682 (Sept. 24, 2013) (codified at 41 C.F.R. pt. 60-741).
17 Id. (quoting 29 C.F.R. § 1614.203(a)).
18 Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act, 77 Fed. Reg. 19,080 (Mar. 30, 2012) (codified at 29 C.F.R. pt. 1625).
19 29 C.F.R. § 1625.32.
21 Id. at 9. See also 29 C.F.R. § 1625.5 ("A request on the part of an employer [for D.O.B. on an application form] is not, itself, a violation of the Act. But because the request ... may tend to deter older applicants or otherwise indicate discrimination ... [such a request] will be closely scrutinized to assure that the request is for a permissible purpose and not for purposes proscribed by the Act.").
22 We note that the EEOC, the Department of Labor, the Department of Justice, and the Office of Personnel Management (formerly the Civil Service Commission) jointly adopted UGESP. Any future review and revision of UGESP will require coordination among these agencies.
23 42 U.S.C. § 2000e-5(f)(1) ("If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge.").
24 Strategic Enforcement Plan, supra note 20, at 5. See also id. at 2 ("Through the [Strategic Enforcement Plan], the Commission adopts strategies to coordinate and maximize the use of communications, outreach, education, training, research, and technology as enforcement tools. These strategies should also ensure consistent and integrated enforcement throughout all three sectors - private, public, and federal.").
25 Id. at 8.
26 Press Release, EEOC Seeks Public Input on Quality Control Plan for Investigations and Conciliations (May 10, 2013), http://www.eeoc.gov/eeoc/newsroom/release/5-10-13c.cfm.
27 42 U.S.C. § 2000e-5(f)(1) ("In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court.").
28 Id. ("Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security.")
29 42 U.S.C. § 2000e-8(e) ("It shall be unlawful for any officer or employee of the Commission to make public in any manner whatever any information obtained by the Commission pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information."). See also EEOC, EEO-1: Legal Basis for Requirements, http://www.eeoc.gov/employers/eeo1survey/legalbasis.cfm (last visited Dec. 27, 2013).