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EEOC Explains Reasonable Factor Other Than Age In Age Discrimination

The Equal Employment Opportunity Commission (EEOC) published a final rule on Friday intended to clarify protections offered by the Age Discrimination in Employment Act (ADEA). The ADEA is intended to protect workers 40 and older from both intentional and as-applied workplace discrimination based on age.

When an action appears on its face to not discriminate based on age but the effect of the action actually harms older workers more than it does younger workers, the as-applied effect or “disparate impact” of the action may be considered age discrimination. Under the new rule, when a company engages in activity that has a disparate impact on older workers, it can defend its actions by proving that reasonable factors other than age (ROFA), rather than age discrimination, were the reason behind the decision.

The new rule doesn’t change existing protections for workers over 40. It restates the rule to comply with prior U.S. Supreme Court interpretations and to give guidance to businesses who may assert ROFA as a defense to an age discrimination claim.

Employees protected by the ADEA include employees of:

  • Companies with 20 or more employees
  • State and local governments
  • Employment agencies
  • Labor organizations

To be considered age discrimination based on a disparate impact, an employer’s actions must appear to be neutral as to a worker’s age, apply to groups of people and impact older workers moreso than younger workers. The EEOC uses examples of pre-employment screening procedures as well as processes used to identify who will be let go as part of a workforce reduction plan as potential problem areas for employers violating age discrimination prohibitions.

The EEOC has seen a 50 percent increase in age discrimination charges since 2000.

Source: EEOC.gov, “EEOC Issues Final Rule on “Reasonable Factors Other than Age” Under the ADEA,” March 29, 2012

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