Friday, February 19, 2010

WIRTW #115

This week, the EEOC published proposed regulation on the reasonable factors other than age defense under the ADEA. The regulations (available for download as a PDF from suggest that the following 6 factors are relevant in
determining whether an employment practice is reasonable:

  1. Whether the employment practice and the manner of its implementation are common business practices;

  2. The extent to which the factor is related to the employer’s stated business goal;

  3. The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);

  4. The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;

  5. The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and

  6. Whether other options were available and the reasons the employer selected the option it did

Factors relevant in determining whether a factor is ‘‘other than age’’ include:

  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.

For more on these new regulations, check out the following:

As to the rest of the week’s best employment-related thoughts…

Non-Competition Agreements

Disability (and related) Discrimination


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