Employment & Labor Insider

Week before last, I published a blog post about the proposed regulations recently issued by the Equal Employment Opportunity Commission. For the most part, I thought they were unremarkable, but there were two provisions that gave me concern. After describing my concerns, I asked whether I was missing anything.

Apparently, I was.

I received this email from Fiona Ong, an employment attorney in Baltimore (published here with Fiona's permission, and with a few non-substantive clean-up edits by me):

Hello Robin – I enjoyed your blog post on the EEOC regulations, but wanted to let you know that your “bombs” were not quite what you thought. The provision about the EEOC’s ability to reconsider a no cause finding sua sponte [on its own initiative] actually already exists in the current regulations. Take a look at 1601.19(b) for the existing reconsideration language.The proposed regulation just changes “issuing director” to “director of the issuing office.” I believe the rest is the same. In addition, you’re correct about the addition to the ADEA regulation of the provision allowing for names to be withheld, but I’m not sure if you realized that the same language already exists in the Title VII/ADA/GINA regulation. So the addition just conforms the ADEA regulation to the other.

Thank you, Fiona - I stand corrected!

I officially withdraw my concern about the first item. On the second, I would still like to confirm that there is nothing unique about the Age Discrimination in Employment Act that would justify treating the ADEA differently from Title VII, the Americans with Disabilities Act, and the Genetic Information Nondiscrimination Act. Although all of these laws have many similarities, the ADEA has some unique characteristics that might make this provision inappropriate in the context of the ADEA but appropriate in the cases of the others. (I haven't had a chance to delve into that yet, but as soon as I do, I'll share what I find.)

I still think the EEOC could have done a much better job explaining the ADEA provision in its preamble (it did not explain or even mention it at all). In any event, calling it a "bomb" appears to have been an overstatement on my part.