The EEOC released a final rule effective April 30, 2012, amending its federal age discrimination regulations clarifying how "disparate impact" (non-intentional) discrimination will be determined. Like discrimination under Title VII, employer decisions that adversely impact older workers (age 40+), regardless of intent, will be deemed discriminatory. Employers will have the burden of showing that the decisions were based on "reasonable factors other than age" (RFOA).
Example: Employer requires all employees to take a mandatory computer competency test to remain employed. Older workers fail the test much more often than younger workers. Per the new rule, Employer will have the burden of proving that the test is not discriminatory.
The rule provides a non-exhaustive list of considerations relevant to demonstrating a RFOA, including the extent to which:
■ The factor is related to the employer's stated business purpose;
■ The factor was applied accurately and fairly;
■ Managers were trained on how to apply the factor to avoid discrimination;
■ Manager discretion was appropriately limited (especially in highly subjective situations subject to age-based stereotypes);
■ The employer analyzed potential adverse impact on older workers;
■ Age-protected individuals were harmed; and
■ The employer took steps to reduce potential harm.
Under the new standard, we anticipate that courts will be more likely to "second guess" business decisions that adversely impact workers over age 40. Please call us with any questions.► Back to News & Resources