The Equal Employment Opportunity Commission (EEOC) has proposed regulations that would define “reasonable factor other than age” under the Age Discrimination in Employment Act (ADEA).
The need for these rules arises in the wake of the Smith v. City of Jackson decision, a 2008 U.S. Supreme Court case in which the Court addressed the appropriate standard for determining whether an employment practice that disproportionately affects older workers and would otherwise violate the ADEA is justified. In Smith, the Supreme Court stated that the “reasonable factors other than age” test, not the “business-necessity test,” was the appropriate standard. However, this decision raised questions about the definition of “reasonable factors other than age.” It is in response to those questions that the EEOC has proposed regulations.
The proposed rules would define “reasonable factor” and would delineate what an employer would have to prove to establish the defense that its employment practice was based on a reasonable factor other than age. Specifically, the employer would have to show that the practice was both reasonably designed to further or achieve a legitimate business purpose and administered in such a way that reasonably furthers that purpose. The rules also list factors that could be relevant to determining the reasonableness of a particular employment practice, including:
- whether the practice and its implementation are a common business practice;
- the severity of harm to the protected employees; and
- whether other options were available to the employer.
The proposed rules also would provide assistance in determining whether a factor is one “other than age.”
The EEOC is soliciting public comments on the proposed rules through April 19, 2010.