Tuesday, November 22, 2011

EEOC Closer to Amending Regulations on Age Discrimination Law

Back in February 2010 the Equal Employment Opportunity Commission (EEOC) proposed amendments to the Age Discrimination in Employment Act (ADEA) called, “Final Regulation on Disparate Impact and Reasonable Factors Other than Age."  Prompting the changes were recent court rulings that, according to EEOC Chair Jacqueline A. Berrien, restricted the rights of age discrimination plaintiffs.  The proposed amendments have now been forwarded to to the Office of Management and Budget (“OMB”) for review and interagency coordination.  OMB will have at least 90 days to review the EEOC’s proposed regulations.  After OMB approval, the RFOA Regulations will be published in the Federal Register.  

The proposed “reasonable factors other than age” (RFOA) Regulations create a six-pronged test (not all of which necessarily need be satisfied) to determine whether an age neutral practice or factor is reasonable:
  1. Whether 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 practices on older workers.
  5. The severity of the harm to the individuals within the protected age group, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm.
  6. Whether other options were available and the reasons the employer selected the option it did.
The proposed regulations also set forth a three-pronged test (not all of which necessarily need be satisfied) to evaluate whether an employment practice or factor is age neutral:
  1. The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively.
  2. The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes.
  3. The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.
Glad to see we continue to look out for older employees who still need to work to support themselves and their families.  

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