The EEOC proposes to rescind an interpretive rule, its 1980 Guidelines on Discrimination because of National Origin. The Commission is rescinding the Guidelines and removing them from the Code of Federal Regulations because they are inconsistent with case law and other legal developments since their issuance in 1980 and their amendment in 1999. Among other issues, because plaintiffs carry the burden of proof to establish a disparate impact, the 1980 Guidelines’ presumption that English-only rules violate Title VII in some circumstances is incorrect. The Civil Rights Act of 1991 subsequently clarified that an unlawful employment practice based on disparate impact is established . . . only if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact” on a protected basis. 42 U.S.C. 2000e2(k)(1)(A)(i) (emphasis added). As a result, the Guidelines’ presumption of impact conflicts with the 1991 amendments to Title VII, which requires the plaintiff to carry the burden of proof.
In addition to legal concerns about the English-only provisions, the agency is proposing to rescind all of the guidelines because the principles of law originally set forth in the guidelines are now well-developed in the case law rendering them unnecessary. Furthermore, the Guidelines do not cite any court decisions issued after 1980, primarily citing to Commission administrative decisions issued between 1969-1975, which are outdated and no longer helpful as a resource for the public.