EEOC publishes final rule regarding its own ability to issue guidances

The EEOC, like some other administrative agencies, has historically issued what it calls informal guidances as a way of articulating the agency’s position on issues of law without having to go through the formal notice-and-comment rulemaking procedures required of regulations. The legal consequence, and even informal persuasive value, of these guidances is often litigated. On October 9, 2019, President Trump issued Executive Order 13891  to end the practice, requiring agencies to go through the rulemaking process instead. In implementation of that Executive Order, the EEOC published its final regulations 85 Fed.Reg. 69167, to be codified at 29 CFR 1695.

The EEOC’s new rules will require that all such guidances contain the following disclaimer:

The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.’

Additionally guidances will be subject to advance review by the Commissioners.

The EEOC’s new rules recognize a a category of guidances with particular “significance,” specifically those that may have an annual effect of $100-million or more  or otherwise “aversely affect in a material way the U.S. economy, a sector of the U.S. economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” These “significant guidance documents” will have to be issued in accordance with formal rulemaking requirements. It is not clear how the EEOC will interpret this new regulation since, by definition, everything the EEOC does is intended to have an “affect” that is “material” on “jobs.”

Source: EEOC final rules, “Procedural Regulations for Issuing Guidance,” 85 Fed.Reg. 69167.