The House Appropriations Committee on Thursday approved by voice vote a bill (pdf) that would provide nearly $367 million for the Equal Employment Opportunity Commission for fiscal year 2013, but would prevent any of this funding from being used to implement and enforce the EEOC’s final rule that amends its Age Discrimination in Employment Act (ADEA) regulations to clarify the reasonable factors other than age (RFOA) defense in disparate impact cases. Specifically, the appropriations bill would give the EEOC $366,568,000 for FY 2013, $6,568,000 more than the Commission was provided in 2012 but more than $7 million below the amount requested. According to the report (pdf) accompanying the funding bill, the measure “includes language making up to $29,500,000 available for payments to State and local enforcement agencies.” In addition, the report states that the Appropriations Committee “is pleased with EEOC’s progress in reducing the backlog of private sector charges. The Committee expects the EEOC to continue to prioritize inventory reduction and to examine new ways to address the backlog and increase productivity. EEOC shall keep the Committee informed about its progress in reducing the backlog.”
The Committee also approved by voice vote an amendment offered by Rep. Jack Kingston (R-GA) that would prohibit any funds from being used to implement, administer, or enforce the new ADEA rule, which, Kingston claimed, makes it more difficult for employers to defend themselves against age discrimination lawsuits. The text of the amendment reads as follows:
None of the funds made available by this Act may be used to implement, administer, or enforce the final regulations on ‘‘Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act’’ published by the Equal Employment Opportunity Commission in the Federal Register on March 30, 2012 (77 Fed. Reg. 19080 et seq.).
Meanwhile, the Senate Appropriations approved its own EEOC funding measure last week. The Senate appropriations bill would provide the EEOC with more money ($373.7 million) than that offered in the House, and does not contain a similar amendment effectively blocking the ADEA rule’s implementation. However the Senate version does include report language expressing the Committee’s concern about EEOC’s plans to issue new guidance on the use of criminal and credit background checks in the employment context that” may limit the ability of conscientious employers to hire with confidence and create conflict with Federal and State laws.” The Senate Report “urges EEOC to use litigation resources more wisely by operating within the bounds of the law, and directs that stakeholders be engaged in discussion about the intended changes to background check guidance, and that new guidance on the use of criminal background checks and credit checks be circulated for public input at least 6 months before adoption.” The EEOC approved new guidance on criminal background checks on April 25.
If the House version is ultimately approved, both chambers’ bills will need to be reconciled.