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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 Some of EEOC's guidance and technical assistance documents have been superseded by legislation, court decisions, or newer and more complete guidance. Other guidance documents have become outdated because they were limited to narrow fact patterns that now rarely, if ever, arise.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 Additionally, guidance documents, which were originally adopted by Commission vote, can be rescinded only by Commission vote. Technical assistance documents, which were not approved by Commission vote, will be withdrawn at the EEOC Chair's discretion after notice to the Commission.

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.

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 The document also refers to an outdated version of the food code.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 publications. Rescinded November 2019.

Informal Discussion Letters

ADEA:

Age 60 Rule - On December 13, 2007, the Fair Treatment of Experienced Pilots Act was signed into law by President George W. Bush. Pub. L. No. 110-135. Effective immediately, this law permitted US commercial airline pilots to stay on the job until age 65. The FAA, in turn, issued a Final Rule on July 15, 2009 conforming its regulations to reflect the raising of the age limit to 65 as mandated by the 2007 law. In 2014, the FAA again revised its "Age 65 Rule" to raise the age limit for commercial airline crewmember pilots ('pairing rule') from "under age 60" to "between age 60 and 65."

Retiree Health - On December 26, 2007, the EEOC published a final rule allowing employers that provide retiree health benefits to continue the longstanding practice of coordinating those benefits with Medicare (or comparable state health benefits) without violating the ADEA. The EEOC promulgated the rule in response to a controversial decision in 2000 by the U.S. Court of Appeals for the Third Circuit in Erie County Retirees Association v. County of Erie. The Third Circuit held that the ADEA requires that the health insurance benefits received by Medicare-eligible retirees be the same, or cost the employer the same, as the health insurance benefits received by younger retirees. After the Erie County decision, labor unions and employers alike informed the EEOC that complying with the decision would force companies to reduce or eliminate the retiree health benefits they currently provided - leaving millions of retirees aged 55 and over with less health insurance, or no health insurance at all.

Cash Balance Plans - The Pension Protection Act of 2006 legalized future conversions of traditional pension plans to cash balance and other "hybrid" plans. Prior to enactment of this law, the EEOC had declined to take a position on such conversions under the ADEA, saying that it would study the allegations made in ADEA charges that challenged such conversions.

Title VII:

Undocumented Workers - The EEOC issued a guidance, Remedies Available to Undocumented Workers Under Federal Laws, on October 22, 1999. The EEOC responded to several letters criticizing this guidance. In 2002, the EEOC rescinded this guidance in light of the Supreme Court decision in Hoffman Plastics v. NLRB, 535 US 137 (2002). By a 5-4 vote, the Supreme Court in Hoffman Plastics denied an award of back pay to an undocumented worker who had been laid off for participating in a union organizing campaign against the employer. The NLRB held that the layoff of the undocumented worker violated the NLRA. The Supreme Court reasoned that the Immigration Reform and Control Act of 1986 (IRCA) precluded reliance on the make-whole remedial paradigm of the NLRA against an employer by a person knowingly violating immigration law. Title VII was modeled in some ways on the NLRA. The following letters cite the rescinded guidance.

Title VII/Equal Pay Act:

Wage Discrimination - Various issues raised concerning pay disparity based on sex in the payment of wages. This issue prompted many inquiries and letters of support for proposed legislation and other initiatives to address pay differentials between men and women. On January 29, 2009, the Lilly Ledbetter Fair Pay Act of 2009 ("Act") was signed into law. The Act overturned the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which restricted the time period for filing complaints of employment discrimination concerning compensation. The Act states that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began, which had long been the EEOC's policy position. The following letter was written nine years before the Act became law, and responded to questions about an early version of the legislation.

Title VII/ADEA/ADA/EPA:

Mandatory Arbitration - Inquiry regarding the legality of mandatory arbitration agreements. On April 1, 2009 in 14 Penn Plaza LLC v. Pyett, 556 US 247 (2009), the Supreme Court, held that a collectively bargained mandatory arbitration agreement that includes claims of employment discrimination is enforceable, even though a conflict of interest may exist between the union's interests and individuals' concern for vigorous enforcement of anti-discrimination rights (here, under the ADEA). This letter was written before the Court decided 14 Penn Plaza LLC.

ADA and GINA:

Definition of Disability:

The following letters reference the pre-ADAAA definition of disability:

Inaccurately states that the Commission has not taken a position on whether infertility is a disability in enforcement or litigation. A Dec. 21, 2018, decision against OPM found that infertility is a disability because it substantially limited complainants (a husband and wife) in the major life activity of reproduction. EEOC settled a suit in 2013 against a retailer for terminating a buyer due to infertility treatments and pregnancy restrictions. The press release states that the buyer began treatments for infertility and that "[u]pon disclosure of her disability," implying that we find that infertility is a disability.

States that IBS limits waste elimination but that Commission has not taken a position on whether this would be considered a major life activity. ADAAA makes the operation of a major bodily function, including functions of the operation of an individual organ within a bodily system, including the bowel, a major life activity.

Cites to Sutton trilogy that held that determination of disability should be made by considering the effects of mitigating measures. ADAAA explicitly rejected this interpretation.

Cites the pre-ADAAA definition of "regarded as." After the ADAAA, an individual no longer needs to show that the employer believed individual's impairment (or perceived impairment) substantially limits performance of a major life activity.

Cites to pre-ADAAA definition of "regarded as" and more demanding standard for showing that impairment substantially limits a major life activity.

Cites to outdated FDA Food Code and 2001 CDC list of diseases that are transmissible through food supply. The FDA is required to update this list annually. The Food Code itself has been updated numerous times since 2002.

Cites to old "regarded as" definition and more demanding substantially limits standard; also says that determination of disability must be made in light of mitigating measures, a position changed in the ADAAA.

This letter cites to pre-ADAAA definition of "regarded as."

The ADAAA changed the approach to mitigating measures and disability.

Wellness Programs:

The following letters answer inquiries about employer wellness programs that either pre-date the 2016 rule or ask for clarification about that rule:

Asks the Commission to make clear that offering incentives for participation in a wellness program does not violate the ADA. This letter says that EEOC has not taken a position (which, obviously, was true in 2011 but was not true from 2016-2018, and the Commission will again issue an NPRM).

Asks whether waiving the annual deductible if employee enrolls in disease management program is permissible. Letter responds that we would consider program a wellness program, but again reflects the 2013 reality that the Commission has not taken a position on permissible level of incentives.

Obsolete since the Commission rescinded incentive portions of 2016 rule in December 2018.

Obsolete since the Commission rescinded incentive portions of 2016 rule in December 2018.