The U.S. Equal Employment Opportunity Commission (EEOC) issued its “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” (RFOA) under the Age Discrimination in Employment Act of 1967 (ADEA) which applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations.
Under the newly issued final rule, unless an employer can show that a policy or practice is a reasonable business decision, based on a reasonable factor other than age, the ADEA prohibits any and all policies and practices that harm older individuals more than younger individuals. Six factors will be applied to determine when the RFOA defense is applicable:
1. the employment practice and the manner of its implementation are common business practices;
2. the extent to which the factor is related to the employer’s stated business goal;
3. 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);
4. the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
5. 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, and 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; and 6. whether other options were available and the reasons the employer selected the option it did.
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 final rule was a coordinated effort between the EEOC and other federal agencies in response to two recent U.S. Supreme Court cases. In Smith v. City of Jackson, the Supreme Court held that an employment practice that has a disparate impact on older workers is discriminatory unless the practice is justified by a reasonable factor other than age. In Meacham v. Knolls Atomic Power Lab, the high court held that employers have the burden of proving whether an adverse employment action was based on reasonable factors other than age (RFOAs).
The Las Vegas law office of Lagomarsino Law did not represent anyone involved in the above-referenced case. The commentary is for educational and commentary purposes only. If you would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.