EEOC Proposes Rule Clarifying Age Discrimination Defense

The EEOC has recently proposed new rules dealing with the treatment of age discrimination in the workplace. Following the Supreme Courts decision in Gross vs. FBL Financial earlier this year, defendants in employment age discrimination suits have had a much easier time defending themselves in these situations, as plaintiffs now had to prove that age was the main and most significant factor motivating their termination- a ruling which has greatly limited plaintiffs rights in these situations.

Under the rule change, the EEOC hopes to better define the “Reasonable Factor Other than Age” (ROFA) that employers have used to defend themselves from claims of age discrimination and disparate impact. The proposed changes clarifies the reasons, and whether the reasons themselves are reasonable and justifiable:

– Whether the employment practice and the manner of its implementation are common business practices;
– the extent to which the factor is related to the employer’s stated business goal;
-the extent to which the employer took steps to define the factor accurately and to apply –the factor fairly and accurately;
-the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
-the severity of the harm to individuals within the protected group, in terms of both the degree of injury and the number of persons adversely affected, and the extent to which -the employer took preventative or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and -whether other options were available and the reasons the employer selected the option it did.

While it does not tackle the erosion of rights in claiming age discrimination in the Supreme Court’s decision in Gross, it will at least be helpful in clarifying what constitutes a reasonable factor, and give Judges’ more room in ruling on age discrimination cases.