Age Discrimination Defense: Factors Other Than Age

BTW, have you noticed our blog has a new name? With age discrimination cases, claims that business practices have a disparate impact on people protected by the ADEA* can make it difficult to mount a strong defense. The ADEA was created to prohibit discrimination in employment against people ages 40 and older, and has since placed a considerable burden on employers when it comes to downsizing. Fortunately, the Equal Employment Opportunity Commission (EEOC) recently finalized a list of considerations governing how employers can defend themselves and their actions in certain age discrimination cases based on reasonable factors other than age (RFOA). The EEOC conformed its ruling on RFOAs to two U.S. Supreme Court cases. See Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Laboratory (2008).

With this guide in place, what is the employer’s burden? The employer must show two things:

  1. The practice was reasonably designed to further achieve a legitimate business purpose;
  2. And was carried out such that it reasonably achieves that purpose with regards to the facts and conditions that were known, or should have been known, to the employer.

What are EEOC’s standards?

The standards to show the two conditions above are based on certain considerations. These considerations were originally requirements, however, commentators strongly objected to that.

  1. How closely the RFOA is related to the employer’s stated business purpose;
  2. How accurately the employer defined the RFOA and how fairly it was applied;
  3. How strictly the employer limited supervisors’ discretion in assessing employees, thus minimizing subjectivity;
  4. How carefully the employer assessed the adverse impact of the RFOA on older workers; and
  5. How much harm older workers sustained, and how many workers were harmed.

Successfully proving these considerations will greatly help the defense of an age discrimination case. It should be noted that an employer does not have to prove all of them to successfully meet the RFOA defense requirements. For more information, including a link to the Federal Register site with the full EEOC rule, check here. For more information on best practices to avoid discrimination claims, view our blog articles archive and/or sign up for our e-newsletter.

* The Age Discrimination in Employment Act of 1967

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