Most likely you are familiar with the Age Discrimination in Employment Act of 1967 (ADEA). The ADEA prohibits age-based employment discrimination against individuals who are 40 or older. This law provides protection to job applicants as well as employees. Recently, the EEOC has passed a new regulation requiring that an employment practice that adversely impacts older workers must be justified by a “reasonable factor other than age” (RFOA).
Once again, we have one of those ambiguous words that needs further definition. What does the proposed rule say about “reasonable”?
The proposed rule explains that a “reasonable” factor is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances, both in its design and in the way it is administered.
So what can an employer do to prove that an RFOA exists? Following are factors that may be assessed:
- Whether the employment practice and the manner of its implementation are common business practices
- The extent to which the factor is related to the employer’s stated goal
- The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers)
- The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers
- The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected
- The extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps
- Whether other options were available and the reasons the employer selected the option it did
That’s quite a list! For further reading and definitions, you may go to the EEOC’s website.
