Age Discrimination Gets a Facelift. What the EEOC Has to Say About It.

Beth Dean 03.30.12
116 Clock And Calendar

On March 29, the Equal Employment Opportunity Commission (EEOC) released its final rule regarding disparate impact and Reasonable Factors Other than Age (RFOA) in proving age discrimination in the workplace.

The Age Discrimination in Employment Act, or ADEA, is enforced by the EEOC to prevent age-based discrimination towards workers age 40 and over. In addition to banning outright discrimination, the ADEA stipulates that a company’s practices must not adversely impact older workers, even if unintentionally.

Example: A company performs a reduction in force, laying off the highest-paid employees. Since the highest paid employees have likely been with the company the longest and are therefore older, this could have disparate impact on older workers.

The RFOA provision allows employers to defend themselves from these disparate impact claims by stating that the decision was based on a reasonable factor other than age, meaning the decision would serve a legitimate business purpose.

Example: A company performs a reduction in force, laying off the highest paid and least productive employees, with supervisors ranking productivity based on objective, specific criteria. Though older workers could be disparately impacted, the company could show that it acted based on RFOA since its criteria were reasonably designed to achieve the goal of accurately measuring productivity, while decreasing the potential impact on older workers.

These general guidelines may be helpful in assessing whether a decision was reasonable:

  • Importance: The factor/criteria in the business decision should be important to the stated goal.
  • Accuracy: The factor should produce accurate results and be fairly applied. Supervisors should be trained to apply the factor without discriminating.
  • Objectivity: While subjectivity is not outlawed, supervisors should be given clear and objective criteria, particularly in areas known to have the potential for age-based stereotypes.
  • Assessment: The employer should have assessed the potential adverse impact an employment practice.
  • Harm: The degree of harm to employees in a protected age group should be taken into consideration, with the employer making considerable effort to reduce that harm.

For more information please visit the EEOCs guide to frequent questions and answers regarding ADEA and RFOA.

Also on Nextep

Rest Up! For Illinois Workers, ODRISA is Now Law Beginning in 2023, The One Day Rest In Seven Act (ODRISA) allows Illinois employees the right to take one day off in seven, plus breaks during a long workday.  Here’s a breakdown of the basics: Employees must get a minimum of 24 hours of rest every […]
Read more
Starting in 2023, Illinois workers have expanded job-protected bereavement leave under the Family Bereavement Leave Act (FBLA). Let’s dig into the details. FBLA allows eligible employees to take up to 10 work days of unpaid leave following the death of a family member. Specifically, they are allowed time for any of the events covered by […]
Read more
How to Ask the Right Things, Plus 25 Sample Job Interview Questions When searching for the right employee to join your team, job interview questions are essential in narrowing down an employer’s candidate pool and allowing top candidates to showcase their innovation, ideas, and goals.  But sometimes, it’s even more important to consider how you […]
Read more
Asking about criminal history is risky business. Here’s what to do instead. You may be breaking the law if your job application includes a checkbox asking the candidate if they’ve ever been convicted of a crime. Banning this question during the application process, sometimes referred to as “ban the box,” gives people with criminal histories […]
Read more
Your medical leave could qualify for paid time off if you work in Colorado.  We’re familiar with the Family Medical Leave Act (FMLA), allowing qualified employees up to 12 weeks of unpaid, job-protected leave to care for themselves or a family member during certain medical or family events. But the FAMLI program takes this coverage […]
Read more
What business owners need to know right now. On January 5, 2023, the Federal Trade Commission (FTC) proposed a rule to prohibit non-competition clauses (“non-competes”) in employment agreements.  Non-compete provisions include broadly written non-disclosure agreements that ban working in the same field post-employment and require employees to pay “training costs” if the employment terminates within […]
Read more
Asking about salary history may be banned in your state. “So, tell me about your salary history at your current job.” It’s a typical job interview question, often used by recruiters to help gauge whether the candidate would be satisfied with the salary offered at their company. Sometimes, though, the question can help them determine […]
Read more
If you don’t have transparent pay, you may be legally obliged to do it soon.   California is the latest of several states to mandate transparent pay in job postings.  When advertising a job vacancy, California businesses with 15 or more employees must now show a salary range that the employee may expect to earn […]
Read more
Regardless of the turnover rate, every company at some point has faced the struggle of employee recruitment. Selecting the right candidate for your workforce is tough, and there are many factors to consider.  The action items below can provide your company with tactics to minimize risk and help ensure you hire the right person to […]
Read more
The new year brings both new resolutions and state minimum wage and tax changes. We’ve compiled what employers need to know to stay compliant and prepare your 2023 budget! Minimum Wage Several states are increasing their minimum wage. As a reminder, when federal and state or local payroll laws differ, the employer must adhere to […]
Read more
How do you handle employee promotions? When promoting one of your star employees to a management or supervisory position, companies should take the time to train and help the manager adjust to their new role.  An employee’s relationship with their immediate supervisor is one of the top five factors in job satisfaction, so a new […]
Read more
It should be no surprise that your employees post on social media or even blog throughout the day ─ maybe even on company time or equipment. And while they may not post on the clock, it’s unlikely that after hours they think their social media or blog posts could have consequences at work. While employers […]
Read more

Download Our App