by Susan R. Bell
On March 30, 2012, and consistent with the Supreme Court’s decision in Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008), the EEOC issued its final ruling setting forth the “reasonable factors other than age” (RFOA) affirmative defense available to employers in disparate impact cases under the Age Discrimination in Employment Act (ADEA). The rule will take effect April 30, 2012.
“Disparate impact” discrimination is the one form of discrimination where proof of a specific intent to discriminate is not required. Consequently disparate impact analysis is used, for example, to challenge employer policies (e.g., a height requirement) that appears neutral on its face but has a disparate impact on certain protected groups (e.g., women could be disproportionately affected by a height requirement).
Employers have the burden of both production (i.e., presenting the necessary evidence) and persuasion (i.e., the burden of proving the defense) when presenting a RFOA defense in a disparate impact case. The EEOC notes that the standard of proof for a RFOA defense is higher than a rational-basis standard. According to the EEOC, equating the RFOA defense with a rational-basis standard would wrongly merge ADEA disparate-treatment and disparate-impact standards of proof: “If an employer attempting to establish the RFOA defense were only required to show that it had acted rationally, then the employer would merely be required to show that it had not engaged in intentional age discrimination.”
The final rule defines a RFOA as a factor that “is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.” The decision as to whether an employer has made an employment decision based on a non-age factor “must be decided on the basis of all the particular facts and circumstances surrounding each individual situation.” The rule further provides a non-exhaustive list of factors to be considered in determining whether an employment practice is based on a RFOA, including:
- The extent to which the factor is related to the employer’s stated business purpose;
- The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
- The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
- The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
- The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
Notably, this list consists of factors, not essential elements. These factors merely describe the most common characteristics of what the EEOC considers to be reasonable practices. Accordingly, the defense is not automatically established simply because one or more of the factors have been proven. In addition, there could even be a situation in which the defense is satisfied absent any of the factors.
In order to present a successful RFOA defense, a prudent employer must take reasonable steps to ensure that its supervisors are not given unbridled discretion to make policy-based decisions based on subjective criteria, which could allow supervisors’ biases and stereotypes to affect the decision-making process. Rather, employers should make sure that its supervisors are properly trained and that the supervisors are exercising their discretion in a way that does not violate the ADEA. For example, when asking supervisors to evaluate employees or applicants based on subjective criteria that are subject to age-based stereotypes, such as productivity, flexibility, willingness to learn, and technological skills, a prudent employer would instruct its supervisors to look specifically at objective measures of those specific skills that are actually used on the job.
You can find the rule here: