A Window on the New EEOC Proposed Rules on Age Discrimination
Rule-making by a federal agency provides a great opportunity to anticipate the direction and focus of the agency. The Equal Employment Opportunity Commission (EEOC) is offering us just such a window, with a proposed new rule construing the “reasonable factors other than age” defense used by many employers. The EEOC will be accepting comments until April 19, 2010, prior to adopting the proposed new rules
The new rule is the agency’s response to two U.S. Supreme Court decisions. Brian Hall of the Employer Law Report blog provides a great overview of both cases, and summarizes the impact as, “Employers will be required to show that the challenged practice was reasonably designed to further or achieve a legitimate business purpose and was reasonably administered to achieve that purpose.“
The proposed new EEOC rules provide for a “prudent employer” standard to assess whether or not an employer relied on reasonable factors in making an employment decision, and includes this list of examples which are not exhaustive:
(i) Whether the employment practice and the manner of its implementation are common business practices;
(ii) The extent to which the factor is related to the employer's stated business goal;
(iii) The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
(iv) The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
(v) The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
(vi) Whether other options were available and the reasons the employer selected the option it did.
The proposed rules offer a glimpse into the future of the EEOC. It would not hurt to begin to follow these suggestions in making business decisions which may have a disparate impact on older workers now, especially in RIF or lay-off situations. The EEOC window looks pretty clear.
