EEOC issues final rule on Conciliation, proposes wellness rules, extend mediation pilot program and more
New Appointment
On January 19, 2021, EEOC appointed Kimberly S.L. Essary as Deputy Chief Data Officer in the Office of Enterprise Data and Analytics (OEDA) department. Essary joined the EEOC as a career attorney-advisor in 2009. She also served as OEDA’s Deputy Director and Senior Counsel since 2018 and helped in the creation of the EEOC’s Data Governance Board. Prior to working at the Commission, Essary served at the U.S. Department of Labor as a senior policy advisor and worked in private practice at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP in Washington, DC. She holds a J.D. from the University Of Maryland School Of Law and a B.A. from Smith College.
Charlotte Burrows and Jocelyn Samuels
Mediation Pilot Program
EEOC extends the Mediation pilot program through September 30, 2021. Mediation is a voluntary, informal and confidential way to resolve disputes with the aid of a neutral mediator specifically trained to help people discuss their differences. The ACT (Access, Categories, Time) Mediation pilot, began on July 6, 2020, and expanded the categories of charges eligible for mediation. Since EEOC’s mediation program began in 1999, over 240,000 mediations were conducted, resolving over 170,000 charges and obtaining over $3 billion in benefits for aggrieved parties.
Proposed Wellness Rules
EEOC forwarded its Notices of Proposed Rulemaking (NPRM) on wellness program under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) to the Federal Register for publication. The proposed rules address what level of incentives employers may lawfully offer to encourage employee participation in wellness programs that require disclosure of medical information.
Final Rule on EEOC’s Conciliation Procedures
After being cleared by the Office of Management and Budget (OMB), EEOC sent the final rule, approved with a vote of 3-2, updating the agency’s conciliation procedures to the Federal Register for publication. The final rule helps EEOC meet its statutory requirements by endeavoring to eliminate employment discrimination by “informal methods of conference, conciliation, and persuasion.” It will become effective 30 days after publication in the Federal Register.
Opinion Letter Concerning Individual Coverage Health Reimbursement Arrangements under the ADEA
The EEOC Commissioners considered whether offering an Individual Coverage Health Reimbursement Arrangement (ICHRA) as a defined contribution gives rise to liability under the Age Discrimination in Employment Act (ADEA). An ICHRA benefit is where an employer contributes money into an account for an employee, which is then used by the employee to purchase health insurance on their own.
The Opinion Letter concludes that ICHRAs do not violate the ADEA because all employees receive the same amount from the employer and the employer is not involved in the employee’s decision about which health insurance to purchase. The letter further explains that if employers choose to increase the amount deposited in an older worker’s ICHRA account to offset age-based increases to his/her health plan costs, it will not violate the ADEA.
General Counsel’s Report on Religious Discrimination
General Counsel Sharon Fast Gustafson and Commissioner Andrea Lucas issued a report on a series of dialogue sessions on religious discrimination that were held in the fall of 2020. Stakeholders were invited to share how the agency can improve its development and litigation of religious discrimination claims. Participants included a diversity of religions – Buddhist, Christian, Hindu, Jewish, Muslim, and Sikh – to name a few.
Enforcement Guidance on Religious Discrimination Updated in Compliance Manual
EEOC approved revisions to the Compliance Manual Section on Religious Discrimination. Updates to the manual were made after reviewing public input. The updated guidance describes the way in which Title VII protects individuals from religious discrimination and sets forth the legal protections available to religious employers.