Rescinded and Vacated Regulations, Guidance and Technical Assistance
Outreach and education are critical tools to prevent discrimination, and the EEOC works with hundreds of thousands of employees and employers every year to educate them on their legal rights and responsibilities. As part of this effort, the EEOC is committed to providing guidance and information to our stakeholders that is current, accurate, and clear.
Since the EEOC began issuing guidance documents in the 1980s, there have been changes in the laws we enforce. Some of EEOC's regulations, guidance and technical assistance documents have been superseded by legislation, court decisions, or newer and more complete guidance. Other documents have become outdated because they were limited to narrow fact patterns that now rarely, if ever, arise.
EEOC-initiated actions to rescind documents follow established Commission procedures. For example, all documents being considered for rescission will be circulated to EEOC staff, as well as to Commissioners and the General Counsel, for comment regarding whether rescission is appropriate. Additionally, guidance documents, which were originally adopted by Commission vote, can be rescinded only by Commission vote. Technical assistance documents, which were not approved by Commission vote, can be withdrawn at the EEOC Chair's discretion after notice to the Commission.
The documents approved for rescission, by Commission vote when required, are listed below.
Infrequently, Congress or the courts vacate regulations, guidance, or technical assistance documents issued by the EEOC. This page contains information about those documents as well.
Regulations
- Update of Commission’s Conciliation Procedures (“conciliation rule”). On January 7, 2021, the Commission approved the conciliation rule by a 3-2 vote. See 86 Fed. Reg. 2974 (published Jan. 14, 2021). On June 30, 2021, the President signed a joint resolution providing for congressional disapproval of the conciliation rule under the Congressional Review Act. See Pub. L. 117-22, 135 Stat. 294. Therefore, the conciliation rule has no force or effect and “may not be reissued in substantially the same form.” 5 U.S.C. § 801(b)(2). Further, “a new rule that is substantially the same as such a [congressionally disapproved] rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” Id.
Guidance Documents
- Compliance Manual Section 615: Harassment (1987), Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), Enforcement Guidance on Harris v. Forklift System., Inc. (1994), Policy Guidance on Current Issues of Sexual Harassment (1990), and Policy Guidance on Employer Liability under Title VII for Sexual Favoritism (1990) were all superseded on April 29, 2024 by the new Enforcement Guidance on Harassment in the Workplace.
- Policy Statement: Application of § 4(f)(2) of the Age Discrimination in Employment Act (ADEA) of 1967, as amended, to cases involving “benefit packages” that end life insurance coverage for employees totally disabled after attaining age 60 (1988). This document discusses how an employer may use a “benefit package” approach to justify a rider on employee life insurance policies that allows premium waivers for workers who become disabled and unable to work before the age of 60, but would not provide this waiver for workers who become disabled after the age of 60. This is an obscure issue in life insurance benefits that rarely, if ever, has arisen in EEO complaints in the last 20 years, and which is governed by existing regulations at 29 C.F.R. § 1625.10. Rescinded November 2020.
- Policy Guidance on the Compulsory Retirement of Tenured Faculty Members (1989). The Age Discrimination in Employment Act Amendments of 1986 created an exception for certain tenured faculty to the ADEA's general prohibition of mandatory retirement ages, thereby allowing compulsory retirement. The exception was repealed in 1993. Rescinded October 2019.
- Policy Statement on the Issue of Whether the Commission Can Assert Jurisdiction Over Charges/Complaints Raising Issues of Discrimination Based on Age Arising from the Implementation of an Integrated Seniority List Developed Pursuant to an Airline Merger Approved Under the Federal Aviation Act (FAA) by the Department of Transportation (DOT) (1987). This document explains the EEOC's position that it has jurisdiction to consider whether an integrated seniority list violates the ADEA, a narrow issue that rarely arises. Rescinded October 2019.
- Policy Statement: Employer Standing to Bring a Charge of Discrimination Against a Labor Organization (1987). Should this discrete issue arise, the Supreme Court's decision in Thompson v. North Am. Stainless, LP, 562 U.S. 170 (2011) would be controlling authority. Rescinded October 2019.
- Policy Guidance on Cases Involving the Definition of Willful Violation Under the Age Discrimination in Employment Act (ADEA) for Purposes of Liquidated Damages and the Statute of Limitations (1989). This document is superseded by amendments to the ADEA adopted in the Civil Rights Act of 1991, and the Supreme Court's decision in McLaughlin v. Richland Shoe, 486 U.S. 128 (1988). Rescinded October 2019.
- Interpretive Memorandum: Martin v. Wilks, 109 S. Ct. 2180 (1989). This document discusses the effect of the Martin v. Wilks decision, which upheld the right of nonparties to challenge a consent decree. This decision primarily affected the processing of charges involving affirmative action, but it was partially overturned by the Civil Rights Act of 1991. Rescinded October 2019.
- Policy Guidance on Cases Involving Charging Parties Who Have Been Disqualified by Bona Fide Occupational Qualifications or Other Age-Based Statutory Provisions and Not Given the Same Options Afforded Employees Disqualified for Reasons Unrelated to Age (1989). This guidance addresses a narrow issue that rarely arises. Rescinded October 2019.
- Policy Guidance on the Processing of Charges Where There Is a Collective Bargaining Agreement or an Individual Employment Contract Requiring the Arbitration of Age Discrimination Related Issues (1990). This guidance is contrary to subsequent Supreme Court decisions, including Gilmer v Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). Rescinded October 2019.
- Enforcement Guidance on the Effect of Section 112 of the Civil Rights Act of 1991 on the Supreme Court's Decision in Lorance v. AT&T Technologies, Inc. and Charges Involving Seniority Systems (1993). The Commission's decision to rescind this document reflects its determination that agency employees and the public no longer require additional guidance on how the Civil Rights Act of 1991 superseded the Supreme Court's holding in Lorance v. AT&T Technologies, Inc. Rescinded October 2019.
- Enforcement Guidance on St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This document provides guidance on the Supreme Court's decision in Hicks, which addressed disparate treatment principles under EEO law. Subsequent EEOC guidance provides more detailed and up-to-date discussions of the same principles. These documents include the Compliance Manual Section on Race and Color Discrimination (2006), Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (2007), Enforcement Guidance on Pregnancy Discrimination and Related Issues (2015), and Enforcement Guidance on National Origin Discrimination (2016). Rescinded October 2019.
- Compliance Manual Section 902: Definition of the Term "Disability" (March 1995). Much of this document's content has been superseded by enactment of the Americans with Disabilities Act Amendments Act in 2008 and the EEOC's 2011 regulations implementing that law. Rescinded October 2019.
- EEOC Policy Guidance on the Effect of Representations Made in Applications for Benefits on the Determination of Whether a Person Is a "Qualified Individual with a Disability" Under the Americans with Disabilities Act of 1990 (ADA) (February 1997). The issue discussed in this guidance was resolved by the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). Rescinded October 2019.
- EEOC Policy Guidance on Executive Order 13145: To Prohibit Discrimination in Federal Employment Based on Genetic Information (July 2000). E.O 13145 was issued more than eight years before the Genetic Information Nondiscrimination Act ("GINA") was enacted and more than 10 years before EEOC issued final regulations implementing Title II of GINA. Some of the information in the guidance is misleading or outdated. For example, the Executive Order permitted federal agencies to collect family medical history related to current medical conditions that were the subject of lawful medical examinations of employees. Title II of GINA, which applies to private, state and local, and federal employers, categorically prohibits acquisition of family medical history as part of an otherwise lawful employment-related medical examination. Rescinded October 2019.
- EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 612, Appendix A-Application of Title VII to Plant Relocation (1989). This document discusses application of disparate treatment and disparate impact principles to employer decisions to move a plant or other facility. It addresses a narrow issue, which presumably arose more in the past than it does now, and no specialized legal analysis applies. Rescinded November 2019.
- EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 616, Appendix C-Unilateral Seniority Systems (1983). This portion of the Compliance Manual explains the EEOC's position that unilaterally created seniority systems are exempted under ยง 703(h) if they are bona fide, meaning that they were not established for discriminatory purposes. This position is well-established and the issue rarely, if ever, arises now. Rescission of this appendix does not represent a change in policy by the Commission. Rescinded November 2019.
- EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Exemption for Executive and High Policymaking Employees (1989). This document discusses the ADEA exemption allowing mandatory retirement of certain employees when they reach 65 years of age. This exemption is discussed in considerable detail in both the Compliance Manual Section on Threshold Issues and the ADEA regulations. Rescinded November 2019.
- EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Policy Guidance on Retroactive Relief For Sex-Based Discrimination in Retirement Plans (1989). This policy guidance explains the limits on retroactive relief for sex-based retirement plans held to be unlawful by the Supreme Court in Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978), and Arizona Governing Committee v. Norris, 463 U.S. 1073 (1983). Someone retiring today might still have been awarded benefits under a sex-based retirement plan early in her career, though such situations are likely to be unusual. The 2000 Compliance Manual section on Employee Benefits refers to this guidance for further information, but it also refers investigators to the Office of Legal Counsel. Rescission of this guidance does not represent a change in the Commission's position. Rescinded November 2019.
- EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 603-Processing Title VII, ADEA, and EPA Cases That Raise Issues Included on Priority or Pending Lists (1986). This Compliance Manual Section is outdated. The referenced "priority or pending lists" no longer exist. These lists were used in the 1980s. Rescinded November 2019.
- EEOC Compliance Manual, VOLUME 2: INTERPRETIVE MANUAL, Vol. 2, Sec. 801-Age Discrimination in Employment Act: Introduction (1985). This section of the Compliance Manual provides very little legal analysis beyond the observation that case law interpreting Title VII may often, but will not always, be relevant in construing provisions of the ADEA. Most of the introduction references topics under the ADEA that have been merged into other sections of the Compliance Manual that also discuss Title VII. This section also references numerous sections of the ADEA portion of the Manual that the Commission intended to, but never did, issue. Consequently, the introduction is outdated and should be rescinded. Rescinded November 2019.
- Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory (1992) (amended by 2009 guidance to conform to Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Subsequent EEOC guidance provides more detailed and up-to-date discussions of the same principles. These documents include the Compliance Manual Section on Race Discrimination (2006), Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (2007), Compliance Manual Section on Religious Discrimination (2008), Enforcement Guidance on Pregnancy Discrimination and Related Issues (2015), and Enforcement Guidance on National Origin Discrimination (2016). Additionally, the position of the Commission in this guidance supporting "motivating factor" causation for retaliation claims was criticized by the Supreme Court as lacking "the persuasive force that is a necessary precondition" for the Court to give deference. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013). Rescinded Nevember 2019.
- Policy Guidance on Use of Sex Referent Language in Employment Opportunity Advertising and Recruitment (Apr. 16, 1990). This document addresses an issue that rarely arises and for which legal principles are well-established. Rescinded December 2019.
- Policy Guidance on Job Advertising and Pre-Employment Inquiries Under the Age Discrimination in Employment Act (July 3, 1989). The policy guidance is no longer consistent with current law or existing EEOC Regulations. In 2004, the Supreme Court in General Dynamics Land Systems v. Cline, 540 U.S. 581, found that the Age Discrimination in Employment Act (ADEA) does not prohibit discrimination against the relatively young. The EEOC subsequently revised the regulation in 2007, 29 C.F.R. 1625.4, on which this policy guidance was based, to make clear that job advertising expressing a preference for older workers does not violate the ADEA. This Policy Guidance should have been rescinded with the issuance of the regulations in 2007. Rescinded December 2019.
- Section 632 of the Compliance Manual - Violations Involving Advertising, Recordkeeping, or Posting of Notice (Sept 1986). The section addresses issues concerning discriminatory advertising, recordkeeping requirements, and requirements to post notices. Many of the issues are well-established and rarely arise today, such as the applicability of Title VII to job advertisements limited to persons of specific genders, or summarizes the contents of existing regulations. At least one example applies a standard under the ADEA that is no longer correct - that the ADEA prohibits discrimination on the basis of age against relatively younger persons who are within the ADEA's protected age group. The section also references charge procedures that no longer apply. Rescinded December 2019.
- Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment. Since its issuance, the Supreme Court has ruled that agreements to arbitrate employment-related disputes are enforceable under the Federal Arbitration Act (FAA) for disputes between employers and employees. Circuit City Stores v. Adams, 532 U.S. 105 (2001). However, in 2002, the Supreme Court further held that an arbitration agreement between an employer and employee does not bar the EEOC from pursuing victim-specific relief in litigation on behalf of an employee who files a timely charge of discrimination. EEOC v. Waffle House, Inc., 534 U.S. 279 (2002). Because of the Supreme Court's rulings, discussed in more depth here, the Commission rescinds the 1997 Policy Statement. Nothing in this rescission should be construed to limit the ability of the Commission or any other party to challenge the enforceability of a particular arbitration agreement. Rescinded December 2019.
- Compliance Manual Sec. 604, Theories of Discrimination (Aug 1988) [Rescinded April 2020]. The guidance is outdated, and issues discussed are addressed in more depth and/or with more current analysis in subsequent guidance documents. A more detailed analysis is available. Rescission of this guidance also includes rescission of Appendix C on polygraph examinations. In addition, Appendix A and Appendix B already have been superseded by the 2012 Enforcement Guidance on the Use of Arrest and Conviction Records.
Technical Assistance Documents
- Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity. This document was published in June 2021 on the first anniversary of the Supreme Court’s decision in Bostock v. Clayton County., 140 S. Ct. 1731 (2020). After summarizing the holding in Bostock, the remainder of the document summarized the Commission’s longstanding, voted positions on a variety of issues relating to discrimination based on sexual orientation and gender identity. In October 2022, a federal district court vacated this document in Texas v. EEOC et al., 2:21-CV-194-Z (N.D. Tex.).
- How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers. This document was published several years before enactment of the ADA Amendments Act. Consequently, its detailed discussion of "disability," both in the first part of the document and in connection with the document's discussion of the relationship of the ADA and the FDA Food Code, reflects a much more stringent standard than the current standard for establishing that a condition is a disability. The document also refers to an outdated version of the food code. Moreover, the document addresses several issues - such as the rules concerning the kinds of health-related questions that employers may and may not ask of applicants and employees, and the obligation to make reasonable accommodations - that are discussed more fully in other publications. Rescinded November 2019.
Informal Discussion Letters
ADEA:
Age 60 Rule - On December 13, 2007, the Fair Treatment of Experienced Pilots Act was signed into law by President George W. Bush. Pub. L. No. 110-135. Effective immediately, this law permitted US commercial airline pilots to stay on the job until age 65. The FAA, in turn, issued a Final Rule on July 15, 2009 conforming its regulations to reflect the raising of the age limit to 65 as mandated by the 2007 law. In 2014, the FAA again revised its "Age 65 Rule" to raise the age limit for commercial airline crewmember pilots ('pairing rule') from "under age 60" to "between age 60 and 65."
- Mandatory Retirement/FAA Age 60 Rule dated February 5, 2003; Rescinded December 2019.
- Mandatory Retirement - BFOQ Assessment - FAA Age 60 Rule dated November 15, 2006; Rescinded December 2019.
- Mandatory Retirement/ FAA Age 60 Rule dated December 4, 2006. Rescinded December 2019.
Retiree Health - On December 26, 2007, the EEOC published a final rule allowing employers that provide retiree health benefits to continue the longstanding practice of coordinating those benefits with Medicare (or comparable state health benefits) without violating the ADEA. The EEOC promulgated the rule in response to a controversial decision in 2000 by the U.S. Court of Appeals for the Third Circuit in Erie County Retirees Association v. County of Erie. The Third Circuit held that the ADEA requires that the health insurance benefits received by Medicare-eligible retirees be the same, or cost the employer the same, as the health insurance benefits received by younger retirees. After the Erie County decision, labor unions and employers alike informed the EEOC that complying with the decision would force companies to reduce or eliminate the retiree health benefits they currently provided - leaving millions of retirees aged 55 and over with less health insurance, or no health insurance at all.
- Retiree Health - Benefits dated June 22, 2001; Rescinded December 2019.
- Retiree Health - Benefits dated June 22, 2001; Rescinded December 2019.
- Retiree Health dated May 20, 2004; Rescinded December 2019.
- Retiree Health dated May 21, 2004; Rescinded December 2019.
- Retiree Health dated July 15, 2004; Rescinded December 2019.
- Retiree Health dated August 19, 2004; Rescinded December 2019.
- Retiree Health dated August 19, 2004; Rescinded December 2019.
- Retiree Health dated December 16, 2004; Rescinded December 2019.
- Retiree Health dated November 9, 2005. Rescinded December 2019.
Cash Balance Plans - The Pension Protection Act of 2006 legalized future conversions of traditional pension plans to cash balance and other "hybrid" plans. Prior to enactment of this law, the EEOC had declined to take a position on such conversions under the ADEA, saying that it would study the allegations made in ADEA charges that challenged such conversions.
- Comments on Cash Balance Regulation dated October 8, 2002. Rescinded December 2019.
Title VII:
Undocumented Workers - The EEOC issued a guidance, Remedies Available to Undocumented Workers Under Federal Laws, on October 22, 1999. The EEOC responded to several letters criticizing this guidance. In 2002, the EEOC rescinded this guidance in light of the Supreme Court decision in Hoffman Plastics v. NLRB, 535 US 137 (2002). By a 5-4 vote, the Supreme Court in Hoffman Plastics denied an award of back pay to an undocumented worker who had been laid off for participating in a union organizing campaign against the employer. The NLRB held that the layoff of the undocumented worker violated the NLRA. The Supreme Court reasoned that the Immigration Reform and Control Act of 1986 (IRCA) precluded reliance on the make-whole remedial paradigm of the NLRA against an employer by a person knowingly violating immigration law. Title VII was modeled in some ways on the NLRA. The following letters cite the rescinded guidance.
- Undocumented worker inquiry dated December 27, 1999; Rescinded December 2019.
- Undocumented worker inquiry dated January 31, 2000; Rescinded December 2019.
- Undocumented worker inquiry dated February 29, 2000; Rescinded December 2019.
- Undocumented worker inquiry dated April 2, 2001. Rescinded December 2019.
Title VII/Equal Pay Act:
Wage Discrimination - Various issues raised concerning pay disparity based on sex in the payment of wages. This issue prompted many inquiries and letters of support for proposed legislation and other initiatives to address pay differentials between men and women. On January 29, 2009, the Lilly Ledbetter Fair Pay Act of 2009 ("Act") was signed into law. The Act overturned the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which restricted the time period for filing complaints of employment discrimination concerning compensation. The Act states that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began, which had long been the EEOC's policy position. The following letter was written nine years before the Act became law, and responded to questions about an early version of the legislation.
- Comments on proposed Paycheck Fairness Act dated January 31, 2000. Rescinded December 2019.
Title VII/ADEA/ADA/EPA:
Mandatory Arbitration - Inquiry regarding the legality of mandatory arbitration agreements. On April 1, 2009 in 14 Penn Plaza LLC v. Pyett, 556 US 247 (2009), the Supreme Court, held that a collectively bargained mandatory arbitration agreement that includes claims of employment discrimination is enforceable, even though a conflict of interest may exist between the union's interests and individuals' concern for vigorous enforcement of anti-discrimination rights (here, under the ADEA). This letter was written before the Court decided 14 Penn Plaza LLC.
- Response to inquiry on the legality of an arbitration agreement dated May 20, 2008. Rescinded December 2019.
ADA and GINA:
Definition of Disability:
The following letters reference the pre-ADAAA definition of disability:
Inaccurately states that the Commission has not taken a position on whether infertility is a disability in enforcement or litigation. A Dec. 21, 2018, decision against OPM found that infertility is a disability because it substantially limited complainants (a husband and wife) in the major life activity of reproduction. EEOC settled a suit in 2013 against a retailer for terminating a buyer due to infertility treatments and pregnancy restrictions. The press release states that the buyer began treatments for infertility and that "[u]pon disclosure of her disability," implying that we find that infertility is a disability.
- Definition of Disability - Infertility, dated 1/11/2000 Rescinded December 2019.
States that IBS limits waste elimination but that Commission has not taken a position on whether this would be considered a major life activity. ADAAA makes the operation of a major bodily function, including functions of the operation of an individual organ within a bodily system, including the bowel, a major life activity.
- Definition of Disability dated: 9/28/2000 Rescinded December 2019.
Cites to Sutton trilogy that held that determination of disability should be made by considering the effects of mitigating measures. ADAAA explicitly rejected this interpretation.
- Definition of Disability - In General, dated 2/29/2000 Rescinded December 2019.
Cites the pre-ADAAA definition of "regarded as." After the ADAAA, an individual no longer needs to show that the employer believed individual's impairment (or perceived impairment) substantially limits performance of a major life activity.
- Definition of Disability - In General, dated 7/19/2000 Rescinded December 2019.
Cites to pre-ADAAA definition of "regarded as" and more demanding standard for showing that impairment substantially limits a major life activity.
- ADA: Reasonable Accommodation, dated 6/7/2002 Rescinded December 2019.
Cites to outdated FDA Food Code and 2001 CDC list of diseases that are transmissible through food supply. The FDA is required to update this list annually. The Food Code itself has been updated numerous times since 2002.
- ADA: Disability-Related Inquiries & Medical Exams, dated 5/21/02 Rescinded December 2019.
Cites to old "regarded as" definition and more demanding substantially limits standard; also says that determination of disability must be made in light of mitigating measures, a position changed in the ADAAA.
- ADA: Definition of Disability - Sleep Apnea, dated 8/5/03 Rescinded December 2019.
This letter cites to pre-ADAAA definition of "regarded as."
- ADA & Title VII - Disability Retirement Benefits, dated 7/29/05 Rescinded December 2019.
The ADAAA changed the approach to mitigating measures and disability.
- ADA: Mitigating Measures, dated 12/4/2006 Rescinded December 2019.
Wellness Programs:
The following letters answer inquiries about employer wellness programs that either pre-date the 2016 rule or ask for clarification about that rule:
Asks the Commission to make clear that offering incentives for participation in a wellness program does not violate the ADA. This letter says that EEOC has not taken a position (which, obviously, was true in 2011 but was not true from 2016-2018, and the Commission will again issue an NPRM).
- ADA & GINA: Incentives for Workplace Wellness Programs, dated 6/24/2011 Rescinded December 2019.
Asks whether waiving the annual deductible if employee enrolls in disease management program is permissible. Letter responds that we would consider program a wellness program, but again reflects the 2013 reality that the Commission has not taken a position on permissible level of incentives.
- ADA: Voluntary Wellness Programs & Reasonable Accommodation, dated 1/18/2013 Rescinded December 2019.
Obsolete since the Commission rescinded incentive portions of 2016 rule in December 2018.
- ADA & GINA: Calculating Incentive Limits for Employer Wellness Programs, dated 7/1/2016 Rescinded December 2019.
Obsolete since the Commission rescinded incentive portions of 2016 rule in December 2018.
- ADA & GINA: Applicability of Incentive Limits for Employer Wellness Programs, dated 8/31/16 Rescinded December 2019.