EEOC TO FINALIZE PROPOSED RULES ON THE ADEA

OFCCP Blog Spot
by Art Gutman Ph.D., Professor, Florida Institute of Technology

The proposed rules (or simply “Rules”) were published on 2/18/10, as reported in an Alert on 3/2/10. The Rules may be viewed at http://edocket.access.gpo.gov/2010/2010-3126.htm. The vote to finalize the Rules is scheduled for 11/16/11, the call for which is at http://www.eeoc.gov/eeoc/newsroom/release/11-9-11.cfm.The Rules themselves were written in response to Supreme Court rulings in Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Lab (KAPL) (2008). In Smith, a 5-4 Supreme Court majority ruled that: (1) that adverse impact is a valid ADEA claim and (2) the Factors Other Than Age (RFOA) defense (a lighter defense than job-relatedness in Title VII) is the appropriate defense in ADEA cases. In Meacham, a unanimous Supreme Court ruled that RFOA is an affirmative defense, meaning it requires proof (rather than a simple “articulation” or “explanation”). The Smith and Meacham rulings are discussed in detail by Gutman & Dunleavy (2008) (at http://www.siop.org/tip/Oct08/11gutman.aspx).

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