Contributed by Allison Chaplick
If you feel like a tribute in the arena every time the Equal Employment Opportunity Commission changes the game’s rules on you, you are not alone. The best way to survive is to read and then add this blog to your quiver of arrows in understanding how the EEOC’s final rule amending the Age Discrimination in Employment Act applies to your decision making.
In February, I let you know that the EEOC issued a draft final rule to amend certain ADEA regulations, including that the EEOC’s new regulations recognized the reasonable factors other than age (RFOA) affirmative defense instead of the business necessity affirmative defense.
Well, guess what? The EEOC revised its final rule to clarify that the proposed final rule was never intended to place “significant burdens by requiring employers to meet all factors relevant to the RFOA determination.” Read the new rule here. Instead, the RFOA factors “are not required elements or duties, but considerations that are manifestly relevant to determining whether an employer demonstrates the RFOA defense.”
The final rule also clarifies that the “reasonable factor other than age” is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances. If this sounds like the application of torts law to you, you get a silver parachute from your sponsors! The final rule refers to tort law for guidance to determine what constitutes a “reasonable” factor other than age—what the employer knew about the harm and what it did to correct it. Be aware that this “reasonable” standard test reflects a higher standard of proof, and thus the EEOC has effectively rejected the “rational-basis” test.
But, there is good news: under the final rule, an employer does not need to perform a validity study to establish a RFOA defense to an employment test (e.g., a physical fitness test). However, the final rule does emphasize the importance of defining a test’s employment criterion carefully and educating managers and supervisors on how to apply it fairly.
So, put the odds in your favor and good luck!