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EEOC Proposes to Extend Title VII and ADA Recordkeeping Requirements to Include Entities Covered by GINA


The EEOC has announced its intention to extend its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, and the Americans with Disabilities Act, as amended ("ADA"), to entities covered by Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), according to a notice of proposed rulemaking published in the Federal Register on June 2, 2011.

Title II of the GINA – which took effect on November 21, 2009 – covers employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs, as well as federal sector employers. Title II prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities, and strictly limits disclosure of genetic information for purposes of hiring, termination of employment, and other personnel practices. In addition to its anti-discrimination provisions, Title II also prohibits retaliation against employees who oppose any practice made unlawful by GINA and prohibits harassment against employees on the basis of their genetic information. The EEOC's final rule interpreting Title II of GINA became effective on January 10, 2011.

The EEOC's proposed rulemaking would not require employers to create any new documents. The proposed regulations, however, would extend the same record retention requirements currently in place under Title VII and the ADA to GINA (i.e., any records made or kept must be retained for the longer of either one year or until any charge brought pursuant to GINA has reached final disposition). As such, the EEOC's proposal would require employers to expand their existing Title VII and ADA record retention systems, policies and procedures to include records made relevant under GINA.

While the proposed rule does not seek to impose any new reporting requirements on employers, the EEOC states that it reserves the right to issue reporting regulations in the future if necessary to accomplish the purposes of GINA.

Comments on the EEOC's proposed rulemaking must be submitted on or before August 1, 2011. 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, DC 20507. Written comments of six or fewer pages may be faxed to the Executive Secretariat at (202) 663-4114. Comments may also be submitted electronically on the Federal eRulemaking Portal:

We will keep you updated as this issue develops.

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Jeffrey W. Pagano
Partner – New York
Phone: +1 212.895.4208

Thomas P. Gies
Partner – Washington, D.C.
Phone: +1 202.624.2690

Trina Fairley Barlow
Partner – Washington, D.C.
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Mark A. Romeo
Partner – Orange County, Los Angeles
Phone: +1 949.798.1316, +1 213.622.4750