EEOC’s Five Factors for Establishing RFOA

[Go here for Considerations 1 and 2.]

Consideration #3—Employer Limited Supervisor’s Discretion

This considers 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.

EEOC recognizes that in many cases to it may be crucial for an employer use subjective decisionmaking to assess employee or applicant qualities such as flexibility and willingness to learn—qualities that are often assessed subjectively. The rule does not say that employers may not seek these qualities in its workforce, or that they are not valuable.

However, giving supervisors unconstrained discretion to evaluate employees or applicants using subjective criteria may result in disproportionate harm to older workers, because it allows supervisors’ biases and stereotypes to infect the decisionmaking.

Therefore, it is particularly useful to provide guidance when asking supervisors to evaluate subjective criteria that are subject to age-based stereotypes, such as productivity, flexibility, willingness to learn, and technological skills.

For example, an employer that wants its supervisors to evaluate technological skills might attempt to reduce possible harm to older workers by instructing managers to look specifically at objective measures of the specific skills that are actually used on the job.

Consideration #4—Assessed the Adverse Impact

This considers the extent to which the employer assessed the adverse impact of its employment practice on older workers. There is no requirement for an adverse impact analysis; however, EEOC points out that it is one way of determining whether the employer considered the potential harm to older workers.

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Consideration #5—Degree of Harm

This considers 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.

For instance, where the impact of an employment practice on older workers is minimal, the fact that an employer failed to take multiple steps to reduce harm would not mean that its chosen method is unreasonable. However, the greater the potential harm, the more likely that an employer would be expected to use available options that would reduce the harm without unduly burdening the business.

Bonus Consideration

We’ll add another consideration to the list—clear, well-written job descriptions are the starting point for making sense out of RFOAs. What are the requirements of the job that you can base determinations on? They’re in the job description.

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