Wednesday, April 4, 2012

EEOC Issues Final Rule on "Reasonable Factors Other than Age" Defense

The EEOC issued its final rule on the "Reasonable Factors Other than Age" defense. The defense is used in ADEA (age discrimination) cases where a facially neutral policy or practice has a significant disparate impact on workers over 40 on the basis of older age.

Some of the highlights:
[A]n employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.
The EEOC also provided some considerations that are relevant, though no single consideration is determinative:
(i) The extent to which the factor is related to the employer’s stated business purpose;
(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
(iii) The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
You can also check out the EEOC's press release or their Questions and Answers on the final rule.

Image: EEOC logo used in commentary on EEOC. Not official use.