EEOC Suggests Training for ADEA; Final Rule on Disparate Impact and Reasonable Factors Other Than Age Helpful in Understanding Recent Changes

Thursday, June 28, 2012
The Equal Employment Opportunity Commission issued a Final Rule on disparate impact claims and "reasonable factors other than age" (RFOA) under the Age Discrimination in Employment Act.  The rule is a response to two Supreme Court decisions in which the Supreme Court criticized the Commission's ADEA regulations dealing with ADEA disparate impact cases.  The Court ruled that the employer did not have to prove a business necessity where an employer's policy and/or practice harmed older individuals more than younger individuals, even if the harm may not have been intentional.  The Court stated that the employer only had to prove the practice was based on an RFOA.

The rule issued by the EEOC does two things:

1) It makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity; and

2) It explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.

The regulations suggest that employers train employees, specifically managers and supervisors about the ADEA and the rule on disparate impact claims.  Section 1625.7(e)(2)(ii) of the rule states that “the extent to which managers and supervisors were given guidance or training (by the employer) about how to apply the factor and avoid discrimination” is a consideration in disparate impact cases.  

While considerations are not requirements, if an employer shows that it provided guidance or training about age discrimination and reasonable factors other than age, it will help the employer establish that its actions were reasonable in appropriate circumstances. 

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