Just how much the Equal Employment Opportunity Commission’s (EEOC’s) proposed new rule defining “reasonable factors” that justify an employment action against older workers will impact age discrimination litigation depends on whether you see the glass as half empty or half full. Employment defense lawyers’ opinions on the topic range from assertions that the rule will make summary judgment for employers virtually impossible to contending it will help employers by providing a road map of what is needed to win.
The commission adopted the proposed rule in the wake of two Supreme Court decisions that established the defense that “reasonable factors other than age” (RFOA) justified an employment action, such as termination, against an employee older than 40. The high court rulings did not define what it meant by “reasonable factors,” leading to varying lower court interpretations. In general, those interpretations have made it easier for employers to win summary judgment in Age Discrimination in Employment Act (ADEA) cases than in those brought under Title VII. So the EEOC decided to step in.
In its 2005 decision in Smith v. City of Jackson, the Supreme Court held that an employment practice that has a disparate impact on older workers is discriminatory unless the practice is justified by a “reasonable factor other than age.” In doing so, the court rejected the more stringent requirement that the employer justify the action as a “business necessity.”
Cheskin sees the rule as potentially helpful to employers because it sets out a road map to follow when taking employment actions such as reductions in force.