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EEOC Responses to Retrospective Regulatory Review Comments (July 14, 2014)

In July 2011, the U.S. Equal Employment Opportunity Commission ("EEOC" or "the Commission") submitted its Plan for Retrospective Analysis of Existing Rules (Final Plan) to the Office of Management and Budget.  Among other things, the Final Plan summarized and responded to the public comments EEOC received regarding its Preliminary Retrospective Regulatory Review Plan (Preliminary Plan).[1] 

In January 2014, EEOC issued updated responses to public comments received on the Preliminary and Final Plans.[2]  Due to regulatory developments, EEOC is now providing updated responses to several of these comments.  In addition, EEOC is responding to the public comments submitted since January 2014.

I. Updated Responses to Comments Received Prior to January 2014 Regarding the EEOC's Retrospective Regulatory Review Plan

a. Comments Regarding Wellness Program Incentives

The National Business Group on Health and the Burton Blatt Institute recommended that the EEOC review regulations and issue guidance regarding the legality of wellness program incentives under federal employment discrimination laws.  As indicated in our January 2014 response to comments, in May 2013, the EEOC held a Commission meeting on wellness programs under federal equal employment opportunity laws.[3]  In addition, EEOC plans to issue two Notices of Proposed Rulemaking (NPRMs) related to wellness program incentives.

One NPRM proposes to amend the regulations to implement the equal employment provisions of the Americans with Disabilities Act (ADA) to address the interaction between Title I of the ADA and financial inducements and/or penalties as part of wellness programs offered through health plans.[4]  EEOC also plans to address other aspects of wellness programs that may be subject to the ADA's nondiscrimination provisions in this NPRM.[5]

A second NPRM proposes to amend the regulations on the Genetic Information Nondiscrimination Act of 2008 to address inducements to employees' spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments.[6]  This NPRM will also correct a typographical error in the rule's discussion of wellness programs and add references to the Affordable Care Act, where appropriate.[7]

b. Comments Regarding Affirmative Action Compliance Under Section 501 of the Rehabilitation Act of 1973, as amended

The Consortium for Citizens with Disabilities suggested that the EEOC review and revise its Section 501 regulations to address affirmative action compliance.  EEOC published an Advanced Notice of Proposed Rulemaking (ANPRM) in May 2014 soliciting public comments on EEOC's proposal to amend its regulations to clarify the federal government's obligation to be a model employer of individuals with disabilities.[8]  The comment period ended on July 14, 2014.

II. Responses to Comments Received Since January 2014 Regarding the EEOC's Retrospective Regulatory Review Plan

Since January 2014, EEOC has received three public comments regarding its retrospective regulatory review.

a. Strengthening the Federal Sector EEO Process

One comment recommended strengthening the federal sector EEO process by requiring accountability for management officials who participate in discrimination proceedings.  The federal sector equal employment opportunity regulations include a number of provisions regarding agencies' responsibilities to provide for prompt, fair, and impartial complaint processing, including evaluation of managerial and supervisory performance and implementation of remedial or disciplinary measures, when appropriate.[9] 

As indicated in the Commission's July 2014 Retrospective Review Status Report, EEOC plans to issue an ANPRM seeking public input regarding federal sector process issues by October 2014.  EEOC will consider this comment, along with any additional comments received as a result of the ANPRM.

b. Hiring Discrimination Based on Age

One comment expressed concern that job applications routinely request information from which employers can determine applicants' age. 

As indicated in our January 2014 response to comments, eliminating barriers in recruitment and hiring is one of the six national priorities in EEOC's Strategic Enforcement Plan.[10]  The Strategic Enforcement Plan specifically identifies screening practices, such as the use of date-of-birth inquiries, that could discriminate against older workers.[11] 

c. Employer Wellness Programs and the ADA

One comment provided several recommendations pertaining to EEOC's plan to issue an NPRM regarding wellness program incentives and penalties under the ADA.  The comment encouraged EEOC to: (1) refrain from regulating wellness programs that address smoking and "unhealthy dietary practices"; (2) refrain from treating "affirmative incentives" to promote weight control and exercise as "negative sanctions"; (3) encourage incentives, even if "the disabled are unable to earn [them] due to their [medical] conditions"; and (4) refrain from treating obesity as a disability in the wellness program context. 

EEOC will consider these recommendations, along with any other comments received as a result of the NPRM. 

III. Conclusion

The EEOC appreciates the feedback it has received regarding its retrospective review of existing rules.  We invite the public to continue to provide feedback regarding the Plan to Public.Comments.RegulatoryReview@eeoc.gov. 


[1] EEOC, Equal Employment Opportunity Commission Plan for Retrospective Analysis of Existing Rules (2011), http://www.eeoc.gov/laws/regulations/retro_review_plan_final.cfm.

[3] A video, transcript, and witness statements for the May 8, 2013 Commission meeting are available at http://www.eeoc.gov/eeoc/meetings/5-8-13/index.cfm.

[5] Id.

[7] Id.

[8] The Federal Sector's Obligation To Be a Model Employer of Individuals With Disabilities, 79 Fed. Reg. 27,824 (May 15, 2014) (to be codified at 29 C.F.R. pt. 1614),http://www.gpo.gov/fdsys/pkg/FR-2014-05-15/pdf/2014-11233.pdf.

[9] See 29 C.F.R. § 1614.102(a)(2) (requiring "prompt, fair and impartial processing of complaints"); 29 C.F.R. § 1614.102(a)(5) (requiring "[r]eview, evaluat[ion] and control [of] managerial and supervisory performance . . . to insure a continuing affirmative application and vigorous enforcement of the policy of equal opportunity"); 29 C.F.R. § 1614.102(c)(2) (requiring EEO Directors to "[e]valuat[e] . . . the sufficiency of the total agency program for equal employment opportunity and report[] to the head of the agency with recommendations as to any improvement or correction needed, including remedial or disciplinary action with respect to managerial, supervisory or other employees who have failed in their responsibilities").

[10] EEOC, U.S. Equal Employment Opportunity Commission Strategic Enforcement Plan FY 2013 - 2016 1, 9 (2012), http://www.eeoc.gov/eeoc/plan/sep.cfm.

[11] Id. at 9.  See also 29 C.F.R. § 1625.5 ("A request on the part of an employer [for date of birth on an application form] is not, itself, a violation of the [Age Discrimination in Employment Act].  But because the request ... may tend to deter older applicants or otherwise indicate discrimination . . . [such a request] will be closely scrutinized to assure that the request is for a permissible purpose and not for purposes proscribed by the Act.").