EEOC Clarifies “Reasonable Factor Other Than Age” Defense in Age Bias Suits

Posted by Joe Lustig on November 16, 2011

Under the Age Discrimination in Employment Act, an employer can defend itself against charges of age bias by showing that the challenged decision was because of “reasonable factors other than age.”

A few years ago, the U.S. Supreme Court issued a ruling that seemed to make it harder for an employee to prove age discrimination, by requiring the employee to provce that age was the main and most important reason for the decision. The Equal Employment Opportunity Commission responded with a proposed rule to tighten when factors may be considered not based on age.

Now it has finalized that rule. From now on, whether “reasonable factors other than age” were the basis for the decision will depend on:

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.