Current News

In Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court found that, because of the similar language and purposes of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964, plaintiffs could bring a claim using a "disparate impact" theory under the act. A "disparate impact" theory, which was originally used under Title VII, is used to challenge a facially-neutral policy, which, in practice, discriminates against a particular group. The ADEA protects people over the age of 40 from workplace discrimination.

Although, a plaintiff suing under the ADEA can maintain a case on a "disparate impact" theory, the act contains a provision allowing employers to defend against such a claim by asserting that the policy was based on a "reasonable factor other than age." In Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395 (2008), the Supreme Court held that the "reasonable factor" provision was an affirmative defense that the employer must prove.

In 2008, the EEOC added the "reasonable factor other than age" language to its regulations, but did not further define the phrase, stating only that it "must be decided on the basis of all the particular facts and circumstances surrounding each individual situation." 29 C.F.R. § 1625.7(b). The proposed changes to § 1625.7(b), found in the February 18 Federal Register, go into much greater detail than the current regulations, splitting the criteria into "reasonable" and "factors other than age" prongs and laying out factors relevant to the two inquiries.

Under the reasonableness prong, the EEOC looked to tort law. To succeed under this prong the employer must show that its policy or practice was "both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves the purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer." The proposed regulation also lists several factors relevant to the reasonableness determination.

Under the "factors other than age" prong, the EEOC paid particular importance to the amount of discretion given to supervisors under the questioned policy or practice. Greater discretion could lead to supervisors making decisions making decisions "on the bases of conscious or unconscious age-based stereotypes." The proposed regulation provides three relevant factors in determining whether the employer relied on a "factor other than age": (1) "the extent to which the employer gave supervisors unchecked discretion to assess employees subjectively," (2) "the extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes," and (3) "the extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination."

Comments from the public on the proposed regulation are due by the end of the day on April 19, after which a final determination on the regulation will be made. The comment may be submitted by (1) mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, U.S. Equal Employment Opportunity Commission, 131 M Street, NE., Washington DC 20507, (2) by fax to 202-663-4114 (faxes must be no longer than six pages in length), or (3) online at http://www.regulations.gov. All comments received will be posted online, including any personal information included as part of the comment.

To read the notice of proposed rulemaking in the February 18 edition of the Federal Register click here.