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April 23, 2012
Age Discrimination Regulation Takes Effect April 30, 2012
By Joan Farrell, JD, Senior Legal Editor

The EEOC recently issued final regulations that address an age discrimination defense known as "reasonable factors other than age" (RFOA). The defense is used in age discrimination cases alleging disparate impact in violation of the Age Discrimination in Employment Act (ADEA) which prohibits age-based employment discrimination against employees and applicants who are 40 years of age or older.

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Age discrimination claims may be based on intentional discrimination, known as disparate treatment, or on discrimination that results from a facially neutral policy, known as disparate impact. A disparate impact claim of age discrimination doesn’t require proof that discrimination was intentional. Instead, an employee must prove that the employer’s policy had a disproportionately negative effect on older workers. Claims may arise following a reduction in force or a change in workplace policy or benefits that adversely affects older workers.

The regulations take effect April 30, 2012 and were issued following two separate decisions by the U.S. Supreme Court. In 2005, the Court ruled that employees can bring disparate impact claims under the ADEA and that employers can defend the policy in question using RFOA (Smith v. City of Jackson, 544 U.S. 228 (2005)). In a later case, the Court ruled that employers carry the burden of proving employment decisions were based on RFOA (Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008)).

According to the regulations, to establish that a non-age factor is an RFOA, an employer must show that an 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 regulations advise employers to evaluate employment practices on a case-by-case basis. A nonexhaustive list of "considerations" is included in the regulations to help employers determine whether an employment practice is an RFOA, including:

  • The extent to which the factor is related to the employer&rquo;s stated business purpose;
  • The extent to which the employer defined the factor accurately and applied it 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;
  • The extent to which the employer limited supervisors&rquo; 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;
  • The extent to which the employer assessed the adverse impact of its employment practice on older workers;
  • The severity 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.

Employers should use the factors to evaluate whether an employment practice, such as a reduction in force, is based on an RFOA, particularly if an initial review indicates that the practice may have an adverse effect on older workers. Employers should take steps to limit the harm of any adverse impact. In addition, it’s important for employers to provide training to their decision makers on state and federal age discrimination laws, age-based stereotypes, and how to apply objective, nondiscriminatory factors when implementing an employment practice. A Q&A on the regulation has also been published by the EEOC.

EEOC Age Discrimination Links

Joan S. Farrell, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell has over 10 years’ combined experience in employment law and human resources management. As an in-house attorney for Citizens Communications Company, Ms. Farrell provided counseling on employment practices and represented the company in labor and employment matters. She later worked as a manager of Citizens’ Human Resources and Employment Law group. Ms. Farrell also represented management in employment law matters as an attorney with the national law firm of Brown Raysman Millstein Felder & Steiner LLP. Her experience includes representing management in administrative matters, discrimination and wrongful termination claims, as well as wage and hour disputes. Ms. Farrell received her law degree from Pace University School of Law.

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