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The rule emphasizes the need for an individualized, case-by-case approach to determine whether an employment practice is based on reasonable factors other than age and that the RFOA defense applies only when an employment practice is not based on age. It provides lists of factors for determining whether an employment practice is reasonable and whether it’s based on a factor other than age, according to background provided by the EEOC.
The 3-2 vote on Nov. 16, 2011, broke along partisan lines, with Democratic Commissioners Stuart J. Ishimaru and Chai R. Feldblum and chair Jacqueline A. Berrien approving the final rule. Opposing it were Commissioners Constance S. Barker and Victoria A. Lipnic, the two Republicans.
“The regulations must be updated. It is our obligation to set forth clear and direct legal standards,” Barker said. But she said that the regulation might create an RFOA factor that does not have foundation in the Age Discrimination in Employment Act of 1967 (ADEA).
“I’m concerned about creating a new defense that imposes a more restrictive and more difficult defense for employers to apply,” especially the small business owner, she said.
“No matter how well intentioned these regulations may be, when we look at the small business person who is desperately working to just keep his doors open and keep a few Americans employed, … adding this tort law standard … may mean the difference between keeping his doors open or not.”
Lipnic voiced disappointment that she had to oppose the final rule.
“I am not sure it’s appropriate or legally justified here. The ADEA requires that, to be lawful, an employment process must be justified by a reasonable factor other than age,” she said.
“The proposed final rule regulation places a duty on employers to pre-emptively avoid age discrimination and to seek out and assess less discriminatory alternatives,” something that she said neither the statute nor Supreme Court requires.
Lipnic and Barker voiced concern that voting for the regulation would exceed their authority as a commissioner.
Ishimaru called it “a fair rule, workable and consistent with Supreme Court case law. It strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserves the employers' right to make reasonable business decisions.
“That balance is particularly critical at a time when the unemployment rate for workers age 55 and older increased by 331 percent over the past decade.”
He noted that the number of age discrimination charges filed with the EEOC increased by 45 percent since 2000.
Feldblum voiced disappointment that the final rule did not receive bipartisan EEOC support.
Berrien said the final rule “strikes the appropriate balance between the rights of older workers to be protected from unlawful discrimination” under the ADEA “and the rights of employers to avoid disparate impact where their practices are justified by reasonable factors other than age.”
The AARP’s legislative policy director, David Certner, hailed the EEOC vote, noting in a news release that when workers age 55 and older lose their jobs in the current economic climate, they are out of work longer than workers under age 55.
“These regulations,” he said, “will encourage employers to stop and think beforehand about the impact of their practices on older workers.”
The “Final Regulation on Disparate Impact and Reasonable Factors Other than Age (RFOA)”under the Age Discrimination in Employment Actnow goes to the U.S. Office of Management and Budget (OMB) for review. Upon OMB approval, the regulation will be published in the Federal Register.
Kathy Gurchiek is associate editor for HR News.
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