EEOC Issues Final Rule on "Reasonable Factors Other than Age" Under the ADEA

U.S. Equal Employment Opportunity Commission
PRESS RELEASE
3-29-12

Regulation Concerns Discrimination Against Employees 40 and Older


See Also

Questions and Answers on EEOC Final Rule on Disparate Impact and “Reasonable Factors Other Than Age” Under the Age Discrimination in Employment Act of 1967

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today issued the “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA). The final rule was coordinated with other federal agencies and reviewed by the Office of Management and Budget (OMB). The rule was posted for public inspection today and will be published in the Federal Register on Friday, March 30.

The final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, unless the employer can show that the policy or practice is based on a reasonable factor other than age. The rule explains the meaning of the RFOA defense to employees, employers, and courts, and makes EEOC’s regulations consistent with Supreme Court case law. The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations. The final rule strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.

The ADEA prohibits employment discrimination against people who are 40 years of age or older. The purpose of the ADEA is to promote the employment of older persons based on their ability, rather than age. Congress enacted the ADEA in 1967 because of its concern that older workers were disadvantaged in retaining and regaining employment.

The Commission held public meetings focused on age discrimination and older worker unemployment in 2009 and 2010 because of concerns that older workers frequently were unfairly laid off during downsizing, had particular problems regaining employment after losing their jobs, and were barred from employment by some common employment practices that were unrelated to job performance. The number of age discrimination charges filed with the Commission increased by 50% since 2000. On November 16, 2011, the Commission voted 3-2 to approve the final rule.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

http://www.eeoc.gov/eeoc/newsroom/release/3-29-12.cfm

EEOC approves new age bias regulation

Lexology.com
Ogletree Deakins
USA
December 16 2011

Federal Agency Also Experiences Record-Breaking Year

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a draft final regulation that clarifies the Age Discrimination in Employment Act's (ADEA) "reasonable factors other than age" test. The new standard will make it easier for workers to establish disparate impact claims and will put a heavier burden on employers in defending such claims.

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Veterans with Disabilities Need Multi-Prong Approach for Employment, EEOC Told at Meeting

US Equal Employment Opportunity Commission
PRESS RELEASE
11-16-11

Commission Also Votes to Approve Age Discrimination Regulations

WASHINGTON—Veterans with disabilities have unique needs in transitioning to and retaining civilian employment, and many are unaware that they are protected by the Americans with Disabilities Act (ADA), a panel of experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a public meeting held today. The panel included representatives from the Department of Veterans Affairs (VA), Department of Labor (DOL), Office of Personnel Management (OPM), Department of Defense (DOD) and private sector stakeholders, including the U.S. Chamber of Commerce. The meeting was one of a series the EEOC has held to examine barriers to employment.
“Today’s Commission meeting provided an important opportunity to learn effective ways to remove barriers to employment for veterans with disabilities,” said EEOC Chair Jacqueline A. Berrien.
“Veterans with disabilities often remain a distinct segment of the disability community, which challenges traditional avenues of outreach,” said Heather Ansley of the Consortium for Citizens with Disabilities. Moreover, veterans with disabilities “are not immune to the myths that surround the employment of people with disabilities.”
Panelists pointed out the important role of employment in easing a veteran’s return to civilian life and recovery from injuries. The VA and DOL have programs providing vocational rehabilitation services and job training for veterans with disabilities. DOL also enforces a specific law prohibiting discrimination against former service members—the Uniformed Services Employment and Reemployment Act. Additionally, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) insures that federal contractors comply with laws giving veterans priority referrals to job openings and not discriminate on the basis of disability, Claudia Gordon, special assistant to OFCCP director Patricia Shiu told the Commission.
Ruth Fanning, Director of Vocational Rehabilitation and Employment Services for the VA, stressed the need for early intervention in the transition from active duty to civilian life. Encouraging injured veterans to plan and work toward civilian career goals “reduces the risk of homelessness, underemployment, or unsuitable employment after discharge from the military.” As George M. Parker, Director of Compliance and Investigations of the Veterans Employment and Training Service (VETS) of the DOL put it, “for wounded and injured veterans, employment can play a significant role in the road to recovery.”
Disabled veterans face special challenges, a number of panelists told the Commission, especially those returning from service in Iraq and Afghanistan who may have traumatic brain injuries (TBI) or post-traumatic stress disorder (PTSD), which many employers do not know how to accommodate. The DOL’s Job Accommodation Network (JAN) provides special resources for employers who need to learn more about how to accommodate veterans with PTSD and TBI, said Anne Hirsh, JAN’s co-director.
Ironically, the increased attention to veterans with conditions like TBI, PTSD and other mental health issues has made some employers hesitant to hire veterans at all, believing that all veterans are likely to have these conditions, Ansley told the Commission. Stereotypical views of mental health issues, rooted in suspicion and fear, “often lead to widespread discrimination against people with conditions like PTSD.”
The EEOC works to combat these myths and stereotypes about veterans with disabilities, said EEOC Senior Attorney-Advisor Joyce Walker-Jones. In 2008, the Commission issued two guides—one for veterans, the other for employers—explaining how the ADA and USERRA protect veterans with disabilities. “We issued the guides because we wanted veterans to know what the ADA is, and employers to know that many veterans with disabilities are able to—and want to—work,” she stated.
Other panelists included Dinah Cohen, Director of the Computer/Electronic Accommodations Program of the Department of Defense, and Ray Decker, Assistant Director for Veterans Services at the U.S. Department of Personnel Management.
In an unrelated matter, the Commission voted 3—2 at the meeting to approve the “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” under the Age Discrimination in Employment Act. The regulation now goes to the U.S. Office of Management and Budget (OMB) for review. Upon OMB approval, the text of the regulation will be made public in the Federal Register.
The EEOC enforces the federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.

http://www.eeoc.gov/eeoc/newsroom/release/11-16-11.cfm

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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EEOC issues proposed regulations on employer defenses to disparate impact age discrimination

Lexology
Ballard Spahr LLP
Brian D. Pedrow USA February 22 2010

On February 18, 2010, the Equal Employment Opportunity Commission published a Notice of Proposed Rulemaking on the issue of employer defenses to disparate impact age discrimination under the federal Age Discrimination in Employment Act (ADEA).
The EEOC issued the revised rules in response to two recent U.S. Supreme Court decisions, Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Lab (2008). Both cases involved the question of when an employer is liable for age discrimination when a facially neutral policy or practice has a disparate impact on age-protected employees.
In Smith, the Supreme Court held that an employer can defend a policy that disproportionately affects older workers by showing that the policy is supported by "reasonable factors other than age" (RFOA). According to the EEOC, this standard is lower than Title VII's business necessity test.
Meacham involved a reduction in force in which supervisors ranked employees based on performance, flexibility, and criticality of skill sets. More senior employees received additional points for years of service. The lowest-ranked employees were laid off. Of the 31 employees selected for layoff, 30 were over the age of 40, even though only 58 percent of the employer's workforce was over 40. The older employees claimed that the facially neutral selection process had a disparate impact on them. The Court held that the employer bears the burden of demonstrating that its selection system was based on reasonable factors other than age.
In light of these decisions, the EEOC decided to amend the ADEA regulations to address the RFOA defense. The proposed regulations define the phrase "reasonable factor" as one that is "objectively reasonable when viewed from the position of a reasonable employer." The factor must be reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the facts and circumstances. Reasonableness, according to the EEOC, will be judged from the perspective of a "prudent employer mindful of its responsibilities under the ADEA." A prudent employer knows or should know that ADEA prohibits facially neutral employment policies or practices that disproportionately impact older workers.
Under the proposed rules, the EEOC will examine the following nonexhaustive list of factors to determine if a policy or practice is reasonable: (i) whether it is a common business practice; (ii) the extent to which the factor is related to the employer's stated business goals; (iii) the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately; (iv) the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers; (v) the severity of harm to the individuals in the protected age group and whether the employer took preventive or corrective steps; and (vi) whether other options were available to the employer.

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EEOC Solicits Comments on Proposed Rule Concerning “Reasonable Factors Other than Age” Under the ADEA

U.S. Equal Employment Opportunity Commission
Press Release 2/18/10

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) has published in the Federal Register a Notice of Proposed Rulemaking (NPRM) addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). The agency is soliciting comments from the public and other interested parties by Monday, April 19, 2010.
The proposed rule follows a March 31, 2008, NPRM on disparate impact under the ADEA. In addition to requesting comments on its substance, the prior NPRM asked whether the Commission should provide more information on the meaning of the RFOA defense. Most commenters supported 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 explains that 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.”
The EEOC will consider the public comments received and will make appropriate changes based on those comments. 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 before becoming effective.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.