October 18, 2021

Volume XI, Number 291

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October 18, 2021

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EEOC Issues Final Rule on Guidance Procedures

The Equal Employment Opportunity Commission (EEOC) regularly releases guidance and advice to employers to aid in compliance with applicable workplace discrimination laws. For example, over the course of the COVID-19 pandemic, the EEOC has frequently issued and updated guidance on how employers can strike the difficult balance between workplace safety and compliance with the Americans with Disabilities Act.

While this guidance from the EEOC can be a useful tool for employers, the EEOC has been often critiqued for improperly legislating through the issuance of its guidance without public comment, as well as for treating the guidance as binding and controlling on employers. The EEOC’s guidance procedures have also been subject to legal challenge. Most notably, the Fifth Circuit Court of Appeals recently sided with the State of Texas in its lawsuit challenging the EEOC’s guidance on employer’s use of criminal background checks, holding the EEOC exceeded its authority by issuing the guidance because it amounted to a substantive rule.

In a final rule released last week, the EEOC announced changes to the way the agency will issue, amend, and seek input on guidance to employers in the future. This final rule was in direct response to an Executive Order signed by President Trump which ordered federal agencies to enact processes and procedures for the public to comment on the guidance they issue, as well as ensure the public is aware the advice issued by agencies is non-binding.

Under the new final rule, any newly-released EEOC guidance will make clear the guidance is non-binding on employers. Any new guidance will be accompanied by the following disclaimers: the guidance will “not have the force and effect of law,” the guidance is “not meant to bind the public,” and the guidance is “only to provide clarity to the public regarding existing requirements under the law or commission policies.”

Additionally, the final rule also provides that “[e]ach proposed significant guidance document shall have a period of notice and public comment of at least 30 days.” The final rule also sets forth a procedure by which the public can petition the EEOC for the issuance, amendment, or repeal of a guidance.

This change in how the EEOC will treat and implement its guidance will be welcomed news to employers.  Employers now have the opportunity to provide their input before the EEOC releases important guidance that may affect employers’ relationships with their employees.  Moreover, employers now have a means to seek amendment or repeal of guidance with which they disagree.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 307
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About this Author

Gary Enis Associate Dallas Labor and Employment
Associate

As an associate in the firm’s labor and employment group, Gary assists clients with traditional labor issues and complex employment matters.

Gary focuses on complex labor and employment litigation involving employment discrimination lawsuits, collective actions, and trade secret and restrictive covenant matters. Gary also helps employers comply with federal, state and local labor and employment laws by advising on workplace policies and procedures. In addition, he participates in several of the firm’s pro bono projects. 

Relevant Experience

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214-979-2924
Kevin J. White Employment Lawyer Hunton AK
Partner

Kevin co-chairs the firm’s labor and employment team and  has a national practice that focuses on complex employment litigation and employment advice and counseling.

In particular, Kevin has extensive experience representing clients in the retail, energy and financial services industries in discrimination class action litigation, governmental agency systemic discrimination investigations, and wage and hour litigation. Other significant aspects of his practice include conducting internal investigations, advising clients regarding executive...

202 955 1886 direct
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