The EEOC issued a final rule yesterday governing disparate impact claims arising under the Age Discrimination in Employment Act of 1967 (ADEA). The EEOC’s final rule is available here. The EEOC’s final age bias rule addresses the “reasonable factors other than age” or RFOA under the statute. According to the EEOC, the rule “makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA [reasonable factors other than age], and not business necessity[.]” The new final rule applies to practices that while neutral on their face might harm older workers.
The EEOC’s question and answer document regarding the rule is located here. The EEOC also provided several examples in the question and answer document regarding how it contemplates the rule being applied, including the following:
If a police department decided to require applicants for patrol positions to pass a physical fitness test to be sure that the officers were physically able to pursue and apprehend suspects, it should know that such a test might exclude older workers more than younger ones. Nevertheless, the department’s actions would likely be based on an RFOA if it reasonably believed that the test measured the speed and strength appropriate to the job, and if it did not know, or should not have known, of steps that it could have taken to reduce harm to older workers without unduly burdening the department.
The final rule is expected to make summary judgment more difficult to obtain for employers, because the court will be required to assess factors relevant to the reasonableness of the employer’s position. This is true even though the person challenging the practice bears the burden of isolating the alleged discriminatory practice.
The EEOC’s final rule includes a list of considerations relevant to the issue of whether the practice is based on a reasonable factor other than age including:
(i) The extent to which the factor is related to the employer's stated business purpose;
(ii) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
(iii) The extent to which the employer limited supervisors' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
(v) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
While the considerations listed in the final rule are not mandatory and will not apply in all circumstances, courts will be forced to address the circumstances surrounding the particular employment practice and employer. For example, while training and other job related surveys are not required, courts and the EEOC will be considering their potential use when assessing a particular employment practice. We’ll continue to monitor developments in this area.