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 seven 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 (makes it illegal to pay unequal wages to men and women performing substantially equal work at the same establishment, unless the difference is attributable to a bona fide seniority, merit, or incentive system, or to a factor other than sex); the Age Discrimination in Employment Act of 1967 (ADEA) as amended (prohibits employment discrimination based on age of 40 or older); titles I and V of the Americans with Disabilities Act, as amended, and sections 501 and 505 of the Rehabilitation Act, as amended (prohibits employment discrimination based on disability); title II of the Genetic Information Nondiscrimination Act (GINA) (prohibits employment discrimination based on genetic information and limits acquisition and disclosure of genetic information); and section 304 of the Government Employee Rights Act of 1991 (protects certain previously exempt State and local government employees from employment discrimination on the basis of race, color, religion, sex, national origin, age, disability, or genetic information).

The item in this Regulatory Plan is entitled "Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act." This item previously appeared as two separate items titled "Disparate Impact Burden of Proof Under the Age Discrimination in Employment Act" (RIN 3046-AA76) and "Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act" (RIN 3046-AA87). These two items have been merged, and a final rule will be issued addressing the issues covered in both (appearing under RIN 3046-AA76).

Prior to the Supreme Court's decision in Smith v. City of Jackson, 544 U.S. 228 (2005), Commission regulations interpreted the ADEA to require employers to prove that actions that had an age-based disparate impact were justified as a business necessity. Although the Court, in Smith, agreed with the EEOC that disparate impact claims were recognizable under the ADEA, it held that the defense was not business necessity but reasonable factors other than age (RFOA). The Smith Court did not specify whether the employer or employee bore the burden of proof on the RFOA defense.

On March 31, 2008, the Commission issued a Notice of Proposed Rulemaking (NPRM) to conform Commission ADEA regulations to Smith, also taking the position that the employer bore the burden of proving the defense. Because current EEOC regulations do not define the meaning of "RFOA," the NPRM asked whether regulations should provide more information on the meaning of "reasonable factors other than age" and, if so, what the regulations should say. 73 FR 16807 (March 31, 2008). Subsequently, the Supreme Court held in Meacham v. Knolls Atomic Laboratory, 554 U.S. 84, 128 S. Ct. 2395 (2008), that employers have the RFOA burdens of production and persuasion. After consideration of the public comments, and in light of the Supreme Court decisions, the Commission issued a second NPRM on February 18, 2010, to address the scope of the RFOA defense. A final rule will be issued addressing the topics covered in both NPRMs and conforming to both Smith and Meacham. The rule will not have a significant impact on small businesses because, among other reasons, their employment actions generally will not affect individuals in numbers sufficient to raise questions of disparate impact.

This item is highlighted in EEOC's Plan for Retrospective Review of Significant Regulations, developed pursuant to Executive Order 13563.

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.

Retrospective Review of Existing Regulations

Pursuant to section 6 of Executive Order 13563 "Improving Regulation and Regulatory Review" (Jan. 18, 2011), the following Regulatory Identifier Numbers (RINs) have been identified as associated with retrospective review and analysis in the EEOC's final retrospective review of regulations plan. Some of these entries on this list may be completed actions, which do not appear in The Regulatory Plan. However, more information can be found about these completed rulemakings in past publications of the Unified Agenda on Reginfo.gov. These rulemakings can also be found on Regulations.gov. The final agency plans can be found at: http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm.

RIN: 3046-AA76


This rulemaking is not expected to alter burdens on small businesses.

RIN: 3046-AA73


This rulemaking does not apply to small businesses. It applies only to the Federal Government.