SHRM Urges EEOC to Withdraw Proposed Rule Affecting Age Discrimination

Apr 22, 2010

Alexandria, Va. - On Monday, SHRM submitted comments to the U.S. Equal Employment Opportunity Commission (EEOC) on draft regulations affecting an employer’s ability to defend against lawsuits brought under the Age Discrimination in Employment Act (ADEA).

The ADEA prohibits employers from discriminating against individuals aged 40 and over with regard to terms and benefits of employment. The ADEA does allow employers, under certain circumstances, to make employment decisions that adversely affect older workers so long as the decisions are based on reasonable factors other than age.

The proposed rule attempts to clarify the meaning of “reasonable factors other than age” but, in doing so, expands the meaning beyond statutory intent and parameters set in Supreme Court cases addressing the issue. SHRM’s comments focused on three main concerns with the rule:

  1. By requiring an employer’s decision to be compared to what a hypothetical “reasonable employer” might do in a similar situation, the proposed rule creates a rigorous standard that was not intended by the statute nor relied upon in case law.
  2. The proposed rule’s “reasonable employer” analysis improperly focuses on “process” (whether the employer conducted workplace training, whether managers received instruction, and whether the employer took steps to assess the adverse impact on older workers) rather than whether the factors actually considered were reasonable.
  3. The rule’s approach does not help employers comply with the ADEA. In fact, it makes employer decision-making much more complex than current law.

Although SHRM argued strongly that the proposed rule should be withdrawn, the Society suggested that the EEOC consider using the rule to create a compendium of voluntary effective practices for employers to consider when implementing a large-scale reduction-in-force.

Now that the comment period has closed, SHRM anticipates that the EEOC will review all public comments and take final action in the coming weeks.

To read SHRM’s comment, click here.

About the Society for Human Resource Management

The Society for Human Resource Management (SHRM) is the world’s largest association devoted to human resource management. Representing more than 250,000 members in over 140 countries, the Society serves the needs of HR professionals and advances the interests of the HR profession. Founded in 1948, SHRM has more than 575 affiliated chapters within the United States and subsidiary offices in China and India. Visit SHRM Online at


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