Press Release 01-07-2021

Commission Approves Final Rules and Opinion Letter During Public Meeting

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today held a remote meeting and approved the Final Rule Updating the Commission’s Conciliation Procedures, a formal opinion letter concerning Individual Coverage Health Reimbursement Arrangements under the ADEA, and the Final Rule Amending the Commission's Official Time Regulation for the Federal Sector.

The first item the Commission considered was the Final Rule Updating the Commission’s Conciliation Procedures. Under Section 706 of Title VII of the Civil Rights Act of 1964, as amended, Congress instructed that after the Commission finds reasonable cause for any charge, “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  In 2015, the Supreme Court addressed the Commission’s conciliation requirements in Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), noting that conciliation plays an important role in achieving Congress’s goal of ending employment discrimination. The final rule was approved by a vote of 3-2.

Despite EEOC’s efforts to promote voluntary resolutions, the agency’s conciliation efforts resolve less than half of the charges where the evidence supports a finding of discrimination. Through this rulemaking, the Commission outlines its responsibilities in the conciliation process to fulfill its Congressional mandate and to increase the effectiveness of its efforts to achieve cooperation and voluntary compliance. The final rule was approved by a vote of 3-2.

The Commissioners also considered a formal opinion letter regarding whether offering an Individual Coverage Health Reimbursement Arrangement (ICHRA) as a defined contribution gives rise to liability under the Age Discrimination in Employment Act of 1967 (ADEA).  ICHRAs are a benefit in which an employer contributes money into an account for the employee, which the employee then uses to purchase health insurance on their own.   The opinion letter concludes that ICHRAs, in which employers deposit the same dollar amount regardless of an employee’s age, do not violate the ADEA because all employees receive the same amount from the employer and the employer is not involved in the employee’s decision about which health insurance to purchase.  In addition, the letter explains that employers that choose to increase the amount deposited into an older employee’s ICHRA account in order to offset age-based increases to his/her health plan costs will not thereby violate the ADEA. The vote was 3-2 in favor of the Commission issuing a formal opinion letter. 

Finally, the Commissioners approved a Final Rule Amending the Commission's Official Time Regulation for the Federal Sector.  The Final Rule clarifies that its official time provision for federal employees does not apply to representatives who serve in an official capacity for a labor organization. The Final Rule was approved by a vote of 3-2.

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