In light of recent U.S. Supreme Court cases, the EEOC has proposed regulations to address the scope of the “reasonable factors other than age” (RFOA) defense available to employers under the Age Discrimination Employment Act (ADEA). According to the EEOC, there are six non-exhaustive factors to consider in determining whether an employment practice is reasonable.
- Where the employment practice and manner of its implementation are common business practices.
- The extent to which the factor is related to the employer’s stated business goals.
- The extent to which the employer took steps to define the factor accurately and apply it accurately and fairly (e.g., training, guidance, instruction of managers).
- The extent to which the employer took steps to assess the adverse impact of its employment practices on older workers.
- The severity of the harm to the individuals within the protected age group, in terms of both the degree of injury and number of persons affected adversely, 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.
- Whether other options were available and the reasons the employer selected the option it did
The EEOC said that it also looks into whether supervisors (a) have unchecked discretion to assess employees subjectively;( b) evaluate employees based on factors known to be subject of age-based stereotypes; and (c) receive guidance or training about how to apply the factors and avoid discrimination. To avoid unnecessary disparate impact and other discrimination type claims, consider these factors whenever you make an employment-related decision, especially if you terminate a group of employees.