Thursday, February 18, 2010

EEOC Publishes "Reasonable Factors Other than Age" NPRM

Today, the Equal Employment Opportunity Commission (EEOC) published a Notice of Proposed Rulemaking (NPRM, no I don't know why they throw 'M' on the end given that "Rulemaking" is one word) addressing the meaning of "Reasonable Factors Other than Age" (RFOA) under the Age Discrimination in Employment Act (ADEA). OK, I think I'm done with acronyms for the time being.

The EEOC explained part of the need for the new rule:
"In Smith v. City of Jackson, the United States Supreme Court held that the ADEA authorizes recovery for disparate impact claims of discrimination and that the 'reasonable factors other than age' test, rather than the business-necessity test, is the appropriate standard for determining the lawfulness of a practice that disproportionately affects older individuals."
(hyperlink added). The Supreme Court, in Meacham v. Knoll Atomic Power Laboratory, subsequently held that the employer bears the burdens of proof and production on the RFOA defense. As the EEOC describes this standard:
"This standard is lower than Title VII's business-necessity test but higher than the Equal Pay Act's 'any other factor' test. It represents a balanced approach that preserves an employer's right to make reasonable business decisions while protecting older workers from facially neutral employment criteria that arbitrarily limit their employment opportunities."
So, what's reasonable?
"[A] reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances."
Sounds, ummm, "reasonable" (sorry, couldn't resist!). What kind of evidence does an employer need?
"[T]he RFOA defense requires evidence that the challenged practice was reasonably designed to further or achieve a legitimate business purpose and was reasonably administered to achieve that purpose."
What are some relevant factors to consider in determining whether an employment practice is based on an RFOA?
"Factors relevant to determining whether an employment practice is reasonable include but are not limited to, the following:

(i) Whether the employment practice and the manner of its implementation are common business practices;

(ii) The extent to which the factor is related to the employer's stated business goal;

(iii) The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);

(iv) The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;

(v) The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and

(vi) Whether other options were available and the reasons the employer selected the option it did."
The proposed rule does more than just address reasonableness (the R), it also addresses whether a factor is "other than age" (the OTA). This portion pointedly targets supervisor subjectivity in identifying the "Factors relevant to determining whether a factor is 'other than age'." The non-exhaustive list:
"(i) The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;

(ii) The extent to which supervisors were asked to evaluate
employees based on factors known to be subject to age-based
stereotypes; and

(iii) The extent to which supervisors were given guidance or
training about how to apply the factors and avoid discrimination."
The NPRM is a lengthy document and the EEOC obviously took a lot of care in drafting it. So give it a read, and if you are so inclined, get your comments in by April 19, 2010.

Image from Wikimedia Commons under Attribution-Share Alike 3.0 Unported license. 
Author: AgnosticPreachersKid (own work).
Date: September 11, 2008
Description: "The old Woodward & Lothrop Service Warehouse located at 131 M Street, NE in the NoMa neighborhood of Washington, D.C. Designed by Abbott, Merkt & Co. in 1937, the building is an example of Streamline Moderne architecture and is listed on the National Register of Historic Places. After the local department store company Woodward & Lothrop (known locally as Woodies) foundered in the 1990s, the warehouse sat vacant for several years. Re-development of the NoMa neighborhood has resulted in the warehouse becoming the new U.S. Equal Employment Opportunity Commission (EEOC) Headquarters and Washington Field Office (WFO)."