EEOC Responds to Criticism During Senate Hearing, Defends Wellness Regulations and Conciliation Efforts

During a recent Senate Committee Oversight Hearing, the EEOC faced criticism for pursuing discrimination investigations where no individual has claimed discrimination and focusing on high-profile lawsuits relating to novel legal issues rather than handling the charges currently pending.  Senator Lamar Alexander (R-Tenn) noted that the EEOC backlog has grown to more than 75,000 pending charges.  EEOC representations and Republican Senators jousted over several additional hot topic issues during the hearing.

Wellness Plans:  For instance, during the hearing the GOP was critical of the EEOC's new proposed regulations regarding wellness plans.  On April 20, 2015, the EEOC issued proposed regulations under the ADA regarding whether certain wellness plans are discriminatory.  These plans may comply with the ACA but still be considered unlawful under the ADA.  Republicans have introduced legislation (H.R. 1189, S. 620) that would shield employers from ADA lawsuits as long as their wellness plans complied with ACA requirements. "We recognize that many employers wish to implement wellness programs in an effort to improve their employees' health and reduce health care costs," Yang noted in her prepared remarks. “We are also mindful that wellness programs must adhere to the ADA's requirement that disability-related inquiries (such as questions on a health risk assessment) or medical examinations (such as blood tests for cholesterol levels) that are part of employee health programs must be 'voluntary.'"

New GINA Regulations Coming Soon:  The EEOC is aiming for the end of July to propose regulations under the Genetic Information Non-Discrimination Act that would impact wellness plans as well.

Conciliation Efforts: The EEOC, in response to questions, stated that lawsuits from the EEOC are a "last resort" and noted it engages in conciliation efforts prior to filing any lawsuit. The EEOC Chair Jenny Yang noted that the recent Supreme Court case allowing narrow judicial review of the EEOC's conciliation efforts was a "positive step forward."

The battle will no doubt continue as administrative agencies like the EEOC and NLRB take a more active role in attempting to change interpretations of existing statutes.

For more information, contact Brett J. Miller
www.butzel.com