EEOC wants to extend Title VII and ADA recordkeeping requirements to include entities covered by GINA

The U.S. Equal Employment Opportunity Commission (EEOC) intends to extend its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act to entities that are covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), according to a notice of proposed rulemaking scheduled for publication in the Federal Register on June 2, 2011.

Title II of GINA protects job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information. Title II of GINA, like VII of the Civil Rights Act of 1964, as amended, covers employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs, as well as federal sector employers.

GINA was signed into law on May 21, 2008; Title II became effective on November 21, 2009. The commission has issued interpretive regulations under GINA (75 FR 68912), as well as a final rule implementing changes to its administrative and procedural regulations (74 FR 63981). The EEOC is now proposing to amend its recordkeeping regulations to add references to GINA. Neither the EEOC’s existing recordkeeping regulations nor its proposal requires creation of any documents. The proposed revision would merely impose the same record retention requirements under GINA that are imposed under Title VII and the ADA (i.e., any records made or kept must be retained for the period of time specified in the Title VII and ADA regulations).

While the EEOC’s proposed rule does not currently impose any reporting requirements under GINA, the commission reserves the right in the future to issue reporting regulations as may be necessary to accomplish the purposes of the statute.

Comments on the EEOC’s proposed rulemaking must be submitted within 60 days after publication of the rulemaking notice in the Federal Register. Written comments may be submitted by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE, Suite 6NE03F, Washington, D.C. 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114. Receipt of facsimile transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4070 (TTY). Comments may also be submitted electronically on the Federal eRulemaking Portal: http://www.regulations.gov.