EEOC Limits Options for Employers Fighting Age Discrimination Claims

On March 30, 2012, the Equal Employment Opportunity Commission published its final rule on regulations governing the Age Discrimination in Employment Act (ADEA). The regulations, which will go into effect on April 29, 2012, outline the EEOC’s position on the “reasonable factors other than age” defense in age discrimination claims.

The new rules lay out the criteria for proving that personnel decisions affecting older employees are justified. But in doing so, the EEOC has also narrowed the way it determines whether employment actions are reasonable, which likely will make it more difficult for employers to defend against age discrimination claims.

For your reference, here’s a quick roundup of legal advisories on the EEOC’s final rule:

EEOC Issues Age Discrimination Regulations (Miller Canfield)

“The EEOC now requires employers to prove that the particular factor (e.g., a cost-cutting measure or a business plan) was not only a legitimate business consideration, but also that the particular practice – in hindsight – was reasonable in its design and in its implementation. In other words, the issue is not merely whether the employer was sensible in considering the factor at all, but rather whether a court or a jury later thinks the employer was also reasonable in how it went about the entire process.” Read on»

EEOC Final Regulations on Reasonable Factors Other Than Age May Have Broad Impact on Employer Policies/Practices (Proskauer Rose LLP)

“The EEOC has explained that its goal in drafting the regulations was to bring EEOC regulations in line with the United States Supreme Court’s decisions in Smith v. City of Jackson and Meacham v. Knolls Atomic Power Lab. In those cases, the Court held, among other things, that while the ADEA authorizes recovery for disparate impact claims, the RFOA test, rather than the more stringent business necessity test, is the appropriate means of determining the lawfulness of a practice that disproportionately affects older individuals.” Read on»

EEOC Publishes Final Rule on Reasonable Factors Other Than Age – RFOA (Pullman & Comley, LLC)

“The rule has some significance for employers who have policies or take action that may have a disparate impact on older workers. In plain english, disparate impact essentially means an age-neutral rule that affects older workers more than younger workers; disparate treatment means a rule or action that treats older workers differently.” Read on»

EEOC Issues Rule Amending Its ADEA Regulation (Morgan Lewis)

“As an initial matter, consistent with Supreme Court precedent, the regulation confirms that the plaintiff bears the burden of ‘isolating and identifying the specific employment practice’ that causes the alleged disparate impact. As the Supreme Court has stated, this ‘is not a trivial burden’ and, if applied correctly, it should serve to limit disparate impact litigation. However, there is nothing in the regulation beyond this acknowledgement of binding caselaw that ‘clarifies’ the RFOA defense. Rather, there are a number of ambiguities in the regulation and its preamble that plaintiffs’ lawyers may attempt to exploit in an effort to reach a jury on whether factors are ‘reasonable.’” Read on»

EEOC Issues Final Regulations Explaining “Reasonable Factors Other Than Age” Defense (Niles, Barton & Wilmer, LLP)

“Pursuant to the ADEA, an employer with 20 or more employees cannot discriminate against any employee or applicant who is 40 years of age or older.  Although most people think of discrimination as an intentional act, discrimination can occur even when there is no intent to discriminate, such as when the employer has a policy or practice that has an unintended effect of harming older workers more so than younger workers.” Read on»

EEOC Issues Final Rules on Age Discrimination Defense (Proskauer)

“The regulations offer a non-exhaustive list of factors that are relevant to the establishment of a RFOA defense. The regulations also note that the presence of one or more of the enumerated factors does not automatically establish the defense, nor does their absence preclude the defense.” Read on»

The EEOC Misses the Mark with New Rule on the ADEA’s Reasonable Factors Other Than Age Defense (Littler)

“Recommended best practices include … documenting the business needs and goals that serve as the basis for an employment practice or policy that may adversely impact older workers. For example, if an employer is modifying its attendance policy to curb unreliable attendance or excessive absenteeism, analyze and document how the revised policy will achieve the intended results.” Read on»

New EEOC Regulations Seek to Ramp Up Burden of Proof on Employer Defenses Under the Age Discrimination in Employment Act (Wilson Sonsini Goodrich & Rosati)

“Employers also should remember that the burden of proof for the RFOA defense is on the employer if the reduction in force or other practice results in a disproportionately negative impact on older workers.” Read on»


Related reading:

EEOC Commissioner Chai Feldblum on Proactive EEO Compliance (Thomas Econometrics)

EEOC Signals Renewed Focus on “Caregiver Responsibilities” Discrimination (Mintz Levin)

Employer Settles EEOC Suit Alleging Sexual Harassment of Employees by Customer (Franczek Radelet P.C.)

NO FISHING: Court Refuses to Enforce Overbroad “Pattern or Practice” Subpoena From EEOC (Constangy, Brooks & Smith, LLP)

EEOC Issues ADA Guidance for Employers on the Rights of Veterans with Disabilities (Katten Muchin Rosenman LLP)


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