The Equal Employment Opportunity Commission (EEOC) recently published a final rule defining when an employment practice is a “reasonable factor other than age.” The new rule is important because it explains how an employer can defend itself from a complaint under the Age Discrimination in Employment Act (ADEA) that a seemingly neutral employment practice had an adverse impact on older workers. Vigilant submitted comments on behalf of our members when the EEOC proposed two years ago to update the rule in light of U.S. Supreme Court decisions. The EEOC accepted feedback in some areas but stuck to its original position in others (77 Fed Reg 19080, March 30, 2012).
If employees complain that your employment decisions have a disproportionately negative effect on workers 40 or older, the EEOC will evaluate whether the factors you used are “objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.” Translation: Before implementing a reduction in force or a new performance assessment tool, you would be wise to use objective standards and evaluate the effect of your proposed approach on your older workers. The agency backed off from its original proposal that you must select the option that has the least negative effect by age, but your decision must still be reasonable. The agency looks with suspicion on subjective factors such as flexibility, creativity, and willingness to learn, and prefers that you limit supervisors’ discretion and provide objective standards and instruction in measuring employees’ performance. For more information, see the agency’s Q&A, or the rule itself, and contact your Vigilant staff representative with any questions about how it may affect your organization.
The Equal Employment Opportunity Commission (EEOC) recently published a final rule defining when an employment practice is a “reasonable factor other than age.”
