Good news for employers. While EEOC guidance is often useful for employers, the EEOC itself has been challenged for improperly legislating through guidance, without public comment, as well as treating their guidance as binding.

In an effort to improve public awareness and understanding of the legal effects of agency positions, the Equal Employment Opportunity Commission (EEOC) recently issued a final rule establishing procedural regulations for the issuance of guidance. The rule clarifies several issues, including:

• Making guidance documents readily available to the public;
• Ensuring guidance is treated as non-binding and not overstepping of legal authority;
• Requiring a notice and public comment period for significant guidance; and
• Establishing a public petition process for the issuance, amendment, or repeal of guidance

Notably, with regard to not overstepping legal authority, the rule notes that guidance must include, “A clear and prominent statement of the following: ‘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.’”

With this rule, which became effective December 2, 2020, the EEOC intends to improve guidance issuance and knowledge, critical components of its outreach efforts.

The EEOC has issued and updated guidance related to the COVID-19 pandemic to balance workplace safety and compliance with the American with Disabilities Act. In addition, they had issued guidance on the use of criminal records in employment decisions under Title VII. We had previously written about the EEOC searching for cases to support their policies, and often failing to do so. Employers won in cases such as Freeman vs. EEOC and EEOC vs. Kaplan. Yet, despite losing several high-profile cases, the EEOC continued aggressive enforcement actions. In the Freeman case, the court called the EEOC’s position an “egregious example of scientific dishonesty.”

Now, with the current procedural guidance, the EEOC will have some new, welcomed guidelines to follow itself.

At Hire Image, we work with employers to understand the EEOC’s guidance and impacts as it relates to occupational health testing and background checks. Please contact us if you have any questions about the laws and rules governing background checks and drug screening.