The Equal Employment Opportunity Commission recently issued a notice providing additional guidance on the subject of age discrimination.
The EEOC wished to update and clarify its guidance to conform to rulings from the U.S. Supreme Court. Among other effects, those decisions indicate that the judicial system will be applying a standard based on "reasonable factors other than age" rather than "business necessity" when evaluating potential age discrimination. This defense may be employed when workers allege that an organization's policy has a "disparate impact," affecting them differently – and negatively – depending on their age.
Disparate impact can be accidental and remain an issue. One common dilemma is applying policies by seniority. If a business practice is intended to help newer workers, it could easily have a disproportionate effect on younger employees while having little impact on older ones. Hiring and retention decisions, compensation and other important aspects of business may factor in experience or flexibility. These are often with employees by age group.
Failure to ensure HR compliance can lead to legitimate disparate impact claims even if the employer was unfair due to an oversight rather than by design. The "reasonable factors other than age" (RFOA) standard is less stringent than the "business necessity" standard, according to BLR, and may be easier for organizations to demonstrate to a court's satisfaction.
Showing RFOA
In order to do so, the organization must do more than name a reasonable factor other than age, generally speaking. Courts may judge business practices based on how accurately and fairly the RFOA is applied and how closely the criteria in question relate to the business purpose behind them.
Other facts that will be evaluated include the extent to which older workers were harmed, the number of employees harmed by the policy and how carefully the organization considered the potential impact and RFOA beforehand. Additionally, the amount of discretion supervisors or managers had to use their own judgment in applying the business practice may be relevant.
