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LABOR & EMPLOYMENT LAW — 5/16/08

EEOC's regulatory agenda includes rules on ADEA disparate impact & employee self-identification

Revising its regulation on disparate impact under the Age Discrimination in Employment Act of 1967 (ADEA) and conforming regulations to its revised EEO-1 report's employee self-identification method are at the top of the US Equal Employment Opportunity Commission's (EEOC) regulatory agenda for Spring 2008. Both items are in the proposed rule making stage.

ADEA disparate impact regulation. The EEOC published notice of its proposed Disparate impact and Reasonable Factors Other Than Age regulation (RIN: 3046-AA76) in the Federal Register on March 31, 2008 (73 FR 16807). The federal agency is revising its regulation on disparate impact (29 CFR section 625.7(d)) to conform to the US Supreme Court's decision in Smith v City of Jackson, 544 U.S. 228, 86 EPD 41,882 (2005), which affirmed that disparate impact is cognizable under the ADEA, but that "reasonable factors other than age," not "business necessity," is the standard for an employers' defense against a disparate impact claim. The comment period on the notice of proposed rule making ends May 30, 2008.

Data collection regulation. The EEOC intends to publish a notice, by March 2009, for its proposed Revision of Race and Ethnicity Data Collection Method regulation (RIN: 3046-AA81). The revision would conform the agency's rules to a key change in the revised EEO-1 report, making employee self-identification the preferred method for collecting race and ethnic data on employees. Under the current rule, employers are permitted to gather this data from revised surveys or employment records.

Other regulatory actions. Other items on the EEOC's regulatory agenda for Spring 2008 are:

• Federal Sector Equal Employment Opportunity Complaint Processing (RIN: 3046-AA73): This is a long-term action with no deadline. The EEOC is reviewing the existing federal complaint process, considering alternatives, and consulting stakeholders about possible reforms that would make the federal EEO process more efficient and effective.

• Nondiscrimination on the Basis of Disability in Programs and Activities Conducted by the Equal Employment Opportunity Commission and Accessibility in Electronic and Information Technology (RIN: 3046-AA82): Notice of proposed rule making for this long-term action was published in the Federal Register on February 19, 2008 (73 FR 9065). The comment period ended April 21, 2008. The EEOC proposes to amend its regulations so that all complaints under section 508 of the Rehabilitation Act of 1973, as amended, 29 USC section 794d(f)(2) (section 508), whether filed by members of the public or EEOC employees, will be processed under the procedures for section 504 public complaints. It would also update terminology in 29 CFR part 1615, outlining how the EEOC enforces section 504 with respect to its own programs and activities.

• Coordination of Retiree Health Benefits With Medicare and State Health Benefits (RIN: 3046-AA72): In this final action, the EEOC exempts from the prohibitions of the ADEA the practice of altering, reducing, or eliminating employer-sponsored retiree health benefits when retirees become eligible for Medicare or comparable State retiree health benefits. The final rule making notice was published in the Federal Register on December 26, 2007 (72 FR 72938).

• Dismissal of Title VII and ADA Charges of Discrimination (RIN: 3046-AA83): This final rule deletes three bases for dismissal of charges (subsections (b) to (d) of 29 CFR 1601.18): "failure to cooperate," "failure to locate" and "failure to accept full relief," since they are no longer useful or necessary.

Since the items listed on the EEOC's regulatory agenda are not expected to have a significant impact on a substantial number of small entities, they were not published in the Federal Register. However, they are posted online at the following website.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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