Formal Opinion Letters

Members of the public may request a formal opinion from the Commission on the application of EEOC-enforced laws to a specific question or factual scenario. The Commission has discretion whether to respond to these requests, as well as how to respond. Generally, these letters concern matters where the application of existing regulations or guidance is unclear.

A Formal Opinion Letter represents the Commission’s official position on matter raised and reliance upon it may provide a defense to liability. A formal opinion letter is approved by a vote of the Commission and is signed by the Commission’s Legal Counsel on behalf of and as approved by the Commission.

Under Title VII of the Civil Rights Act of 1964, a Commission-voted Formal Opinion Letter may provide a defense to liability for the employer who “pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission.” 42 U.S.C. § 2000e-12(b). The Commission has codified its authority to issue Formal Opinion Letters under Title VII through its regulations found at 29 C.F.R. sections 1601.91-93. Similarly, the Age Discrimination in Employment Act (ADEA) provides a defense for employers who rely on the terms of an agency opinion, consistent with the Portal to Portal Act. 29 U.S.C. § 626(e). The Commission has codified its authority to issue Formal Opinion Letters under the ADEA through its regulations found at 29 C.F.R. sections 1626.20-21.

Formal Opinion Letters that address other EEOC-enforced laws, including the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), or Equal Pay Act (EPA), serve as the Commission’s official position on the matter, but these laws do not extend a defense to employers who comply with the terms of EEOC Formal Opinion Letters.

How to request a formal opinion letter

Opinion Letters

• Older Worker Benefit Protection Act (1/14/21)
• Individual Coverage Health Reimbursement Arrangements (ICHRA) under the ADEA (1/7/21)
• Interpretation of Section 707 (9/3/20)
• Federal Work Opportunity Tax Credit Form 8850 (4/29/20)