Statement of Regulatory and Deregulatory Priorities

The mission of the Equal Employment Opportunity Commission (EEOC, Commission or agency) is to ensure equality of opportunity in employment by vigorously enforcing six federal statutes. These statutes are: Title VII of the Civil Rights Act of 1964, as amended (prohibits employment discrimination on the basis of race, color, sex, religion, or national origin); the Equal Pay Act of 1963, as amended; the Age Discrimination in Employment Act of 1967 (ADEA), as amended; Title I of the Americans with Disabilities Act of 1990, as amended, and sections 501 and 505 of the Rehabilitation Act of 1973, as amended (disability); and the Government Employee Rights Act of 1991, which extends protections against employment discrimination to certain federal employees who were not previously covered.

The first item in this Regulatory Plan is titled "Disparate Impact Under the Age Discrimination in Employment Act." In Smith v. City of Jackson, 544 U.S. 228 (2005), the United States Supreme Court affirmed that disparate impact is a cognizable theory of discrimination under the Age Discrimination in Employment Act ("ADEA") but indicated that "reasonable factors other than age" ("RFOA" ) is the appropriate model for the employers' defense against an impact claim.

Current EEOC regulations interpret the ADEA as prohibiting an employment practice that has a disparate impact on individuals within the protected age group unless it is justified as a business necessity. The Supreme Court's holding in Smith v. City of Jackson validated the Commission's position that disparate impact analysis applies in ADEA cases. The holding, however, differed from the Commission's position that the business necessity test was the appropriate standard for determining the lawfulness of a practice that had an age-based disparate impact. The EEOC is revising its regulation to reflect the Smith decision.

The second item in this Regulatory Plan is titled the "Genetic Information Nondiscrimination Act" and involves the use of genetic information in the workplace. On May 21, 2008, the President signed into law the Genetic Information Nondiscrimination Act of 2008 (GINA) in light of achievements in the field of genetics such as decoding the human genome and using genomic medicine. Many genetic tests now exist that can inform individuals whether they may be at risk for developing specific diseases or disorders.

Congress enacted GINA to address public concerns regarding discrimination and misuse of genetic information. GINA prohibits employment discrimination based on genetic information and restricts acquisition and disclosure of such information. In particular, Title II of the Act protects job applicants, current and former employees, labor union members, and apprentices and trainees, from discrimination based on their genetic information, whether acquired through genetic testing or from an individual's family medical history. It also places strict limits on the acquisition or disclosure of genetic information and requires that information that is acquired be maintained in a confidential medical file, separate and apart from personnel information.

Consistent with section 4(c) of Executive Order 12866, this statement was reviewed and approved by the Chair of the Agency. The statement has not been reviewed or approved by the other members of the Commission.