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EEOC Rescinds Outdated Guidance Documents

Posted Tuesday, December 10, 2019 6:26 am

The Equal Employment Opportunity Commission (“EEOC”) recently rescinded numerous Guidance and Technical Assistance Documents in an effort to clean up documents that have become outdated or have been superseded by legislation, court decisions, or newer and more complete guidance.

The documents approved for rescission are listed below.  If you rely on any of these documents, be sure to update your files as indicated.  The EEOC advised that this is an ongoing process and this list will grow as additional rescissions are approved.

  • Policy Guidance on the Compulsory Retirement of Tenured Faculty Members (1989)The Age Discrimination in Employment Act Amendments of 1986 created an exception for certain tenured faculty to the ADEA's general prohibition of mandatory retirement ages, thereby allowing compulsory retirement. The exception was repealed in 1993. 
  • Policy Statement on the Issue of Whether the Commission Can Assert Jurisdiction Over Charges/Complaints Raising Issues of Discrimination Based on Age Arising from the Implementation of an Integrated Seniority List Developed Pursuant to an Airline Merger Approved Under the Federal Aviation Act (FAA) by the Department of Transportation (DOT) (1987).  This document explains the EEOC's position that it has jurisdiction to consider whether an integrated seniority list violates the ADEA, a narrow issue that rarely arises.
  • Policy Statement: Employer Standing to Bring a Charge of Discrimination Against a Labor Organization (1987).  Should this discrete issue arise, the Supreme Court's decision in Thompson v. North Am. Stainless, LP, 562 U.S. 170 (2011) would be controlling authority.
  • Policy Guidance on Cases Involving the Definition of Willful Violation Under the Age Discrimination in Employment Act (ADEA) for Purposes of Liquidated Damages and the Statute of Limitations (1989).  This document is superseded by amendments to the ADEA adopted in the Civil Rights Act of 1991, and the Supreme Court's decision in McLaughlin v. Richland Shoe, 486 U.S. 128 (1988). 
  • Interpretive Memorandum: Martin v. Wilks,109 S. Ct. 2180 (1989). This document discusses the effect of the Martin v. Wilks decision, which upheld the right of nonparties to challenge a consent decree. This decision primarily affected the processing of charges involving affirmative action, but it was partially overturned by the Civil Rights Act of 1991.
  • Policy Guidance on Cases Involving Charging Parties Who Have Been Disqualified by Bona Fide Occupational Qualifications or Other Age-Based Statutory Provisions and Not Given the Same Options Afforded Employees Disqualified for Reasons Unrelated to Age (1989). This guidance addresses a narrow issue that rarely arises. 
  • Policy Guidance on the Processing of Charges Where There Is a Collective Bargaining Agreement or an Individual Employment Contract Requiring the Arbitration of Age Discrimination Related Issues(1990). This guidance is contrary to subsequent Supreme Court decisions, including Gilmer v Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). 
  • Enforcement Guidance on the Effect of Section 112 of the Civil Rights Act of 1991 on the Supreme Court's Decision in Lorance v. AT&T Technologies, Inc. and Charges Involving Seniority Systems (1993).  The Commission's decision to rescind this document reflects its determination that agency employees and the public no longer require additional guidance on how the Civil Rights Act of 1991 superseded the Supreme Court's holding in Lorance v. AT&T Technologies, Inc.
  • Enforcement Guidance on St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).  This document provides guidance on the Supreme Court's decision in Hicks, which addressed disparate treatment principles under EEO law. Subsequent EEOC guidance provides more detailed and up-to-date discussions of the same principles. These documents include the Compliance Manual Section on Race and Color Discrimination (2006), Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (2007), Enforcement Guidance on Pregnancy Discrimination and Related Issues (2015), and Enforcement Guidance on National Origin Discrimination (2016).
  • Compliance Manual Section 902: Definition of the Term "Disability" (March 1995).  Much of this document's content has been superseded by enactment of the Americans with Disabilities Act Amendments Act in 2008 and the EEOC's 2011 regulations implementing that law. 
  • EEOC Policy Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person Is a "Qualified Individual with a Disability" Under the Americans with Disabilities Act of 1990 (ADA) (February 1997). The issue discussed in this guidance was resolved by the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).
  • EEOC Policy Guidance on Executive Order 13145:  To Prohibit Discrimination in Federal Employment Based on Genetic Information (July 2000). E.O 13145 was issued more than eight years before the Genetic Information Nondiscrimination Act ("GINA") was enacted and more than 10 years before EEOC issued final regulations implementing Title II of GINA.  Some of the information in the guidance is misleading or outdated. For example, the Executive Order permitted federal agencies to collect family medical history related to current medical conditions that were the subject of lawful medical examinations of employees. Title II of GINA, which applies to private, state and local, and federal employers, categorically prohibits acquisition of family medical history as part of an otherwise lawful employment-related medical examination.
  • EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 612, Appendix A-Application of Title VII to Plant Relocation (1989).  This document discusses application of disparate treatment and disparate impact principles to employer decisions to move a plant or other facility. It addresses a narrow issue, which presumably arose more in the past than it does now, and no specialized legal analysis applies. 
  • EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 616, Appendix C-Unilateral Seniority Systems (1983).  This portion of the Compliance Manual explains the EEOC's position that unilaterally created seniority systems are exempted under § 703(h) if they are bona fide, meaning that they were not established for discriminatory purposes.  This position is well-established and the issue rarely, if ever, arises now.  Rescission of this appendix does not represent a change in policy by the Commission.
  • EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Exemption for Executive and High Policymaking Employees (1989).  This document discusses the ADEA exemption allowing mandatory retirement of certain employees when they reach 65 years of age.  This exemption is discussed in considerable detail in both the Compliance Manual Section on Threshold Issues and the ADEA regulations. 
  • EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Policy Guidance on Retroactive Relief For Sex-Based Discrimination in Retirement Plans (1989).  This policy guidance explains the limits on retroactive relief for sex-based retirement plans held to be unlawful by the Supreme Court in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), and Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983). Someone retiring today might still have been awarded benefits under a sex-based retirement plan early in her career, though such situations are likely to be unusual. The 2000 Compliance Manual section on Employee Benefitsrefers to this guidance for further information, but it also refers investigators to the Office of Legal Counsel.  Rescission of this guidance does not represent a change in the Commission's position.
  • EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 603-Processing Title VII, ADEA, and EPA Cases That Raise Issues Included on Priority or Pending Lists (1986).  This Compliance Manual Section is outdated.  The referenced "priority or pending lists" no longer exist.  These lists were used in the 1980s.
  • EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 801-Age Discrimination in Employment Act: Introduction (1985).  This section of the Compliance Manual provides very little legal analysis beyond the observation that case law interpreting Title VII may often, but will not always, be relevant in construing provisions of the ADEA.  Most of the introduction references topics under the ADEA that have been merged into other sections of the Compliance Manual that also discuss Title VII.  This section also references numerous sections of the ADEA portion of the Manual that the Commission intended to, but never did, issue.  Consequently, the introduction is outdated and should be rescinded.
  • Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory (1992) (amended by 2009 guidance to conform to Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Subsequent EEOC guidance provides more detailed and up-to-date discussions of the same principles. These documents include the Compliance Manual Section on Race Discrimination (2006), Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (2007), Compliance Manual Section on Religious Discrimination (2008), Enforcement Guidance on Pregnancy Discrimination and Related Issues (2015), and Enforcement Guidance on National Origin Discrimination (2016).  Additionally, the position of the Commission in this guidance supporting “motivating factor” causation for retaliation claims was criticized by the Supreme Court as lacking "the persuasive force that is a necessary precondition" for the Court to give deference.  Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013).
  • How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers.  This document was published several years before enactment of the ADA Amendments Act. Consequently, its detailed discussion of "disability," both in the first part of the document and in connection with the document's discussion of the relationship of the ADA and the FDA Food Code, reflects a much more stringent standard than the current standard for establishing that a condition is a disability. The document also refers to an outdated version of the food code. Moreover, the document addresses several issues - such as the rules concerning the kinds of health-related questions that employers may and may not ask of applicants and employees, and the obligation to make reasonable accommodations - that are discussed more fully in other publications.
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