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eTrends - Regulatory Update from the Equal Employment Opportunity Commission

February 19, 2009

Throughout 2008, the Equal Employment Opportunity Commission (“EEOC”) released numerous rules and guidelines of interest to employers.  Set forth below is a summary:

Final Rule Eliminating Reasons for Dismissal of Charges
Effective February 19, 2008, the EEOC implemented a final rule that eliminates three of its procedural reasons for dismissing charges of discrimination.  These three reasons had allowed the EEOC to dismiss charges when a charging party: (i) failed to cooperate, (ii) could not be located, or (iii) refused to accept an offer for full relief for the harm alleged in his or her charge.  The EEOC eliminated these reasons in large part because other regulations allow investigators to issue final determinations when further investigation into the charges is not likely to establish a violation of the employment discrimination statutes.  Thus, these three reasons were no longer necessary to accomplish the EEOC’s case management goals.  The final rule is available at: http://edocket.access.gpo.gov/2008/E8-826.htm.

Q&A Guides on Employment of Veterans with Service-connected Disabilities
On February 29, 2008, the EEOC issued two question-and-answer guides.  The first guide, which is for employers, discusses how protections for veterans with service-related disabilities differ under the ADA (enforced by EEOC) and USERRA (enforced by DOL).  The second guide, which is for disabled veterans, discusses protections available to vets when they return to their former civilian job or seek a new civilian job.  Both guides are available at:
http://www.eeoc.gov/facts/veterans-disabilities-employers.html

http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm.

Proposed Rule on Disparate Impact Claims Under the ADEA
On March 31, 2008, the EEOC published a notice of rulemaking, seeking comments on changes to the ADEA regulations that would reflect the rulings reached in several recent U.S. Supreme Court cases.  Specifically, the EEOC’s proposed rule would provide employers with an affirmative defense to disparate impact claims if they can show that the impact is attributable to a “reasonable factor other than age” (RFOA).  Under current regulations, the EEOC imposes the “business necessity” standard for affirmative defenses, meaning that employers must show that their business practices were the least discriminatory alternative available.  Furthermore, the EEOC’s proposed rule would clarify that the charging party bears the burden of showing which specific employment practice was responsible for the alleged disparate impact and that the employer, when asserting an affirmative defense, bears the burden of proof that the RFOA does in fact exist.  The proposed rule is available at:
http://edocket.access.gpo.gov/2008/pdf/E8-6517.pdf.

Compliance Manual Section on Religious Accommodation
On July 22, 2008, the EEOC issued a new section to its Compliance Manual regarding workplace discrimination on the basis of religion.  Noting that charges of religious discrimination have more than doubled between 1992 and 2007, the section provides updated guidance on what types of employee beliefs and practices are protected and what types of employer actions are prohibited under Title VII.  The section also contains many practical examples and “best practices” tips for employers.  The manual is available at: http://www.eeoc.gov/policy/docs/religion.html.  A question-and-answer fact sheet and best practices booklet on religious accommodation also are available at:

http://www.eeoc.gov/policy/docs/qanda_religion.html
http://www.eeoc.gov/policy/docs/best_practices_religion.html.

Q&A Guide to Performance and Conduct Issues Under the ADA
On September 3, 2008, the EEOC issued a comprehensive question-and-answer guide providing information about the obligations of both employers and employees under the Americans with Disabilities Act (“ADA”) when performance and conduct issues arise.  This guide sets forth what factors should be considered in determining whether reasonable accommodation must be provided to an employee when addressing his or her performance or conduct problems.  The guide also provides numerous practical examples that are based on actual questions that have been presented to the EEOC over the years.  The guide is available at: http://www.eeoc.gov/facts/performance-conduct.html#fn47.

For more information, please contact Kerry A. Shad

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Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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