EEOC Issues New Rule on Age-Discrimination Claims

The EEOC issued a new rule, effective April 30, 2012, that allows employers to defend against disparate-impact age-discrimination claims by showing that the practices involved are based on “reasonable factors other than age (RFOA).” Disparate-impact practices are those that do not involve intentional discrimination but are more harmful to workers age 40 and over than to younger workers. The RFOA regulation applies only to disparate-impact claims; it does not apply to claims of intentional age discrimination.

The EEOC issued the new rule in response to two Supreme Court cases. Under the previous rule, employers defending against disparate-impact age-discrimination claims had to show that they had a business necessity for their practices. The new rule, which replaces the business-necessity defense with the RFOA defense, is favorable to employers because it's easier to show RFOA than to show business necessity.

The rule lists considerations to assess whether a factor is reasonable. Among the considerations are —

• The extent to which the factor is related to the employer’s stated business purpose;
• The extent to which the employer  defined the factor accurately and applied it fairly and accurately;
• The extent to which the employer assessed the adverse impact of the factor on older workers;
• The degree of harm to workers in the protected group; and
• The extent to which employers gave their managers and supervisors guidance or training on how to apply the factor and avoid discrimination.

WeComply’s online discrimination and harassment training courses give employees the practical information they need in this frequently changing area of the law. 

Categories: Workplace Compliance
Tags: Age and Sex Discrimination, workplace discrimination