Commentary

EEOC Issues Final Rules on Guidance for Employers

The EEOC regularly releases guidance and advice to employers to aid in compliance with 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 an effective balance between workplace safety and compliance with the Americans with Disabilities Act and other issues.

While this guidance from the EEOC can be useful for employers, the EEOC has been critiqued for improperly legislating through the issuance of its guidance without public comment.  In many instances, the EEOC treats the guidance as binding and controlling on employers.

However, in a new final rule released last week, the EEOC announced changes to the way the agency will issue, amend, and seek guidance to employers.  Under the new final rule, any newly-released EEOC guidance will make clear that 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 and the guidance is not meant to bind the public in all instances.  Rather, the guidance is only to provide clarity to the public regarding existing requirements under the law and commission policies.

Additionally, the final rule also provides that each 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 many employers.  Employers now have the opportunity to provide their input before the EEOC releases important guidance that may affect employers’ relationships with their employees.