The U.S. Equal Employment Opportunity Commission (EEOC) published a proposed rule addressing the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The agency is soliciting comments from the public by Monday, April 19, 2010. The proposed rule follows a March 31, 2008, Notice of Proposed Rulemaking (NPRM) on disparate impact under the ADEA.
Along with requesting comments on its substance, the previous NPRM asks whether the EEOC should provide additional information on the meaning of the RFOA defense. Most commenters backed addressing the issue and, accordingly, the EEOC is publishing a new NPRM on RFOA. The NPRM has been coordinated with other federal agencies and reviewed by the Office of Management and Budget.
The proposed rule states the RFOA defense applies only if the challenged practice is not based on age and that a neutral practice that disproportionately affects older workers can be justified only by showing that the practice is objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances. The proposed rule sets forth non-exhaustive lists of factors relevant to determining whether a factor is “reasonable” and “other than age.”
Under the proposal, factors relevant to determining whether an employment practice is reasonable include but are not limited to:
- Whether the employment practice and the manner of its implementation are common business practices;
- The extent to which the factor is related to the employer's stated business goal;
- 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);
- The extent to which the employer took steps to assess 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 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
- Whether other options were available and the reasons the employer selected the option it did.
Under the proposed regulation, the factors relevant to determining whether a factor is “other than age” include, but are not limited to, the following:
- The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
- The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
- The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.
The EEOC will consider the public comments received and will make appropriate changes based on those comments. (workersxzcompxzkit)
A proposed final rule covering this and the March 2008 proposed rules will then be coordinated with other federal agencies and reviewed by the Office of Management and Budget prior to becoming effective.
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