Recordkeeping and Reporting Requirements Under Title VII, the ADA, GINA, and the PWFA

SUPPLEMENTARY INFORMATION:

Title VII requires covered entities to “make and keep . . . records relevant to the determinations of whether unlawful employment practices have been or are being committed.” 42 U.S.C. 2000e-8(c). Pursuant to its rulemaking authority in sections 709(c) and 713(a) of Title VII, see42 U.S.C. 2000e-8(c); 2000e-12(a), in 1966 the EEOC issued regulations requiring covered employers, joint labor-management committees, labor organizations, political jurisdictions, school systems or districts, and institutions of higher education subject to these laws (collectively “filers”) to report specified information to the Commission to aid in the administration and enforcement of federal employment discrimination law. See29 CFR 1602.7 (EEO-1 report), 1602.15 (EEO-2 report), 1602.22 (EEO-3 report), 1602.32 (EEO-4 report), 1602.41 (EEO-5 report), 1602.50 (EEO-6 report). Section 709(c) allows filers to apply to the Commission for an exemption from the reporting requirements if the filers believe application of these requirements would result in undue hardship. Accordingly, the EEOC's regulations allow filers to apply for exemptions from the reporting requirements. See29 CFR 1602.10 (EEO-1 report exemption), 1602.18 (EEO-2 report exemption), 1602.25 (EEO-3 report exemption), 1602.35 (EEO-4 report exemption), 1602.44 (EEO-5 report exemption), and 1602.53 (EEO-6 report exemption).

The EEOC is issuing this notice of proposed rulemaking (NPRM) to revise 29 CFR part 1602 by creating a new subpart addressing applications for exemptions that will be applicable to all EEO reports. This new subpart would replace the existing separate provisions addressing undue hardship applications for the six EEO reports; therefore, this NPRM also proposes to remove and reserve 29 CFR 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53. Providing a single procedure to address all hardship exemption applications will enhance administrative efficiency and streamline the regulation. This new subpart would apply to all EEO reports as now constituted or subsequently modified.

In addition, the Commission proposes to revise its regulations to: (1) delegate to its Chief Data Officer (CDO) or the CDO's designee the authority to make determinations on exemption applications; (2) establish express procedures for exemption applications; and (3) delineate the criteria that are used for assessing exemption applications.

Currently, the Commission's regulations state that filers may apply to the Commission for an exemption from the reporting requirements. See29 CFR 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53. Filers now submit applications for undue hardship exemptions to the EEOC's Office of Enterprise Data and Analytics (OEDA), which is led by the CDO, and OEDA prepares each application for submission to the Commission. The Commissioners subsequently review and then vote on each application. The Commission's determination is returned to OEDA, which then conveys the result to the filer.

The Commission proposes to delegate to the CDO, or the CDO's designee, authority to make determinations on applications for exemptions from reporting requirements. The CDO, as Director of OEDA, administers the Commission's EEO data collections, addresses questions and concerns filers raise as they prepare their submissions, and works closely with data collected in EEO reports. Allowing the CDO to consider and make determinations on filers' exemption applications will allow the CDO to bring this knowledge and information directly to bear in assessing applications and will increase efficiencies for both filers and the Commission.

Section 709(c) of Title VII directs the Commission to accept applications for undue hardship exemptions, and section 713(a), 42 U.S.C. 2000e-12, grants the Commission authority to issue procedural regulations “to carry out the provisions of this subchapter,” which includes section 709. Over the course of the many years during which the Commission has implemented section 709, the Commission has worked with numerous filers and has accepted and decided many applications for undue hardship exemptions. The purpose of this procedural rulemaking is to establish and publicize express procedures and to delineate and publicize the criteria the CDO will follow in making determinations on filers' hardship exemption applications. The criteria are a necessary component of this procedural regulation and are not new; rather, they are drawn from the Commission's decades of experience implementing section 709. Finally, publishing the procedures and criteria will provide greater transparency to filers and the public.

The deadlines for requesting exemptions, as well as the steps for submitting exemption applications, are provided in each collection's accompanying instructions. Upon receipt of an exemption application, the CDO will expeditiously issue a written determination that will notify the filer of the disposition of the application, and in the event the application is denied, the determination will notify the filer of the deadline for filing the report, which shall be at least 30 calendar days following the determination. While an application for exemption is pending before the CDO, the filer must continue diligently to collect and prepare the data required for the report in case the exemption request is denied. A filer's failure to exercise such diligence is not cause for additional time to file a report if their exemption request is denied.

The regulation identifies a non-exhaustive list of criteria for the CDO, or the CDO's designee, to consider in making undue hardship determinations, drawn from the Commission's experience working with filers over many years. These criteria include the nature and extent of the filer's efforts to collect and retain the required information; the degree to which the filer attempted to anticipate and preempt any problems in collecting and retaining the required information; the filer's prior data reporting history, including whether the filer previously failed to submit a report or requested an exemption, and if so, whether such exemption was granted; the degree to which the circumstances are beyond the filer's control or are extraordinary; and, the degree to which compliance has been rendered impracticable or impossible ( e.g., due to natural disaster or data loss).

Title VII requires employers to preserve their records. 42 U.S.C. 2000e-8(c). Nevertheless, through the determination criteria, the Commission acknowledges that under certain extreme circumstances, e.g., where a filer, through no fault of its own, loses its data via security breach, natural disaster, or other significant disruption, compliance with the filing requirement may be rendered impossible or impracticable.

Ultimately, the general expectation is compliance with the Commission's reporting requirements. Exemptions should be needed only in rare, extreme circumstances. The Commission expects filers to comply with Title VII and these regulations by properly maintaining records and submitting the applicable EEO reports when required. To that end, the regulation also includes a non-exhaustive list of factors that will not serve as a basis for finding that undue hardship exists: A filer's number of establishments alone; lack of knowledge about the reporting requirements; routine or purposeful data expungement by the filer or a third party; and failure to plan for adequate data security, maintenance, or transfer ( e.g., data loss due to a change in vendor or employee succession where the filer or vendor failed to back up the data). Permitting filers to avoid submitting data based on these grounds would thwart the statutory purpose of the data collection by incentivizing failure to reasonably maintain employment records.

Regulatory Procedures

Executive Order 12866

The Commission has complied with the principles in section 1(b) of Executive Order 12866, Regulatory Planning and Review. This NPRM is not a “significant regulatory action” under section 3(f) of the order and does not require an assessment of potential costs and benefits under section 6(a)(3) of the order.

Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden. This proposed rule imposes no new information collection requirements on the public, and therefore it will create no new paperwork burdens or modifications to existing burdens that are subject to review by the Office of Management and Budget under the PRA.

Regulatory Flexibility Act

The Commission certifies under 5 U.S.C. 605(b) that this NPRM will not have a significant economic impact on a substantial number of small entities. To the extent that it affects small entities, it merely clarifies the process for requesting exemptions. For this reason, a regulatory flexibility analysis is not required.

Unfunded Mandates Reform Act of 1995

This NPRM will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. To the extent that it may apply to state or local government reporting requirements, it merely clarifies the process for requesting exemptions. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This NPRM is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996) because, as a proposal submitted for public comment, it is not a “rule” within the definition of 5 U.S.C. 801. The Congressional Review Act only applies to final rules. Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, for the reasons discussed in the preamble, the Equal Employment Opportunity Commission proposes to amend 29 CFR part 1602 as follows:

1. The authority citation for 29 CFR part 1602 continues to read as follows:

Authority: 42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501 et seq.; 42 U.S.C. 12117; 42 U.S.C. 2000ff-6; 42 U.S.C. 2000gg-2.

2. Remove and reserve §§ 1602.10, 1602.18, 1602.25, 1602.35, 1602.44, and 1602.53.

3. Add subpart S, consisting of §§ 1062.57 and 1602.58, to read as follows:

[FR Doc. 2024-23327 Filed 10-10-24; 8:45 am]

BILLING CODE 6570-01-P