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As reported by Connecticut Employment Law Blog http://www.ctemploymentlawblog.com/ a proposed EEOC rule discusses and defines the so-called "reasonable factor other than age" (RFOA) defense under the Age Discrimination in Employment Act (ADEA).
The Employer Law Report http://www.employerlawreport.com/ sums it up:
“In Smith v. City of Jackson and Meacham v. Knolls Atomic Power Company the Supreme Court held that the RFOA defense acts as a complete bar to disparate impact liability where an employer demonstrates that its facially neutral policy or practice, which had a disparate impact on older workers, was based on a reasonable factor other than the plaintiff’s age. Although the RFOA defense operates similarly to Title VII’s business necessity defense, this defense under the ADEA has traditionally been more “employer-friendly” because it preserves an employer’s right to make reasonable business decisions while protecting older workers from facially neutral employment criteria that arbitrarily limit their employment opportunities without requiring a showing of business necessity.”
The World of Work blog http://www.worldofworklawblog.com/ suggests that:
“an employer who is considering a change in employment practices -- such as a layoff, change in employment qualifications, etc. -- should examine the impact of the change to determine whether it may create an adverse impact based on age. If it appears that it may, the employer should then apply the EEOC's six factors to see if it can adequately defend the change as based on reasonable factors other than age. If the change does not appear to pass each of the EEOC's factors, the employer may want to consider altering the change to reduce the impact or abandoning it altogether.”
The EEOC proposes a “prudent employer” standard to determine whether or not an employer relied upon reasonable factors in making the challenged employment decision and included a list of non-exhaustive factors to consider, including:
the commonality of the business practice used by the employer;
the manner in which the practice was administered;
the employer’s awareness of a possible age-adverse impact before making their decision;
steps taken by the employer to “accurately and fairly” assess the impact of their decision upon older persons as well as steps taken to mitigate unnecessary harm to older workers;
the existence of a lesser discriminatory alternative;
the extent to which the employer or supervisors engaged in age-based stereotyping; and
the extent to which employers gave supervisors guidance or training about how to avoid discrimination.
While no single factor would be dispositive of reasonableness under the EEOC’s proposed rule, the EEOC suggests that an employer is more likely to succeed on the RFOA defense if the bulk of these factors weigh in the employer’s favor.
But there's also the tried and true view as well:
“If your layoff is going to have a disparate impact on older workers, you better have a really good reason for your decision. Otherwise, take a look at the underlying data again.”
Comments for the EEOC?
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