Defending Against Age Discrimination Claims Has Just Become a Little More Difficult

Recently, the EEOC issued a final rule making it more difficult for employers to establish the "reasonable factor other than age" defense for disparate impact age discrimination claims by employees.

Under the Age Discrimination in Employment Act an employee may bring an action against his or her employer for either disparate treatment or disparate impact.  A disparate impact claim alleges that the employer has a policy or procedure that may appear neutral, but in fact adversely affects employees who are older than 40 years of age.

One defense that employers have typically raised in the face of a disparate impact claim is that the policy or procedure was "reasonable and based upon factors other than age."  But now that defense has been heightened.

The new EEOC rule, which took effect on April 30, 2012, requires an employer to establish not only that the policy or procedure was based on reasonable factors other than age, but that it was reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known or should have been known to the employer at the time.