The EEOC published its semiannual regulatory agenda in the Federal Register on December 11 (71 Fed. Reg. 73984). The following regulatory items are of interest to corporate affirmative action and EEO practitioners:

Proposed Rule Stage

  • Disparate Impact and Reasonable Factors Other Than Age: The EEOC intends to revise its regulation on disparate impact to reflect the U.S. Supreme Court decision in Smith v. City of Jackson (2005), in which the 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,” not “business necessity,” is the appropriate model for the employers’ defense against an impact claim. The proposed rule is anticipated in June 2007.

  • Revision of Race and Ethnicity Data Collection Method: This proposed rule will conform the EEOC’s rules to a key change for the revised EEO-1 for reporting years starting in 2007. The EEOC will propose to make employee self-identification the preferred method for collecting race and ethnic data on employees. The current rule permits employers to gather this data from revised surveys or from employment records. The proposed rule is anticipated in February 2007.

Final Rule Stage

  • Coverage Under the Age Discrimination in Employment Act: The EEOC is revising relevant portions of its regulations to conform to the Supreme Court holding in General Dynamics Land Systems v. Cline (2004), in which the Court held that the ADEA only prohibits age-based discrimination against relatively older individuals. It rejected the EEOC’s position that the ADEA also prohibits age-based discrimination against relatively younger individuals who are age 40 or over. The final rule should be released in September 2007.

DCI will keep you posted on these developments as more information becomes known.

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