The Equal Employment Opportunity Commission recently proposed a new regulation that defines the "reasonable factors other than age" defense available to employers challenging claims of disparate impact discrimination under the Age Discrimination in Employment Act. The new regulation was proposed in response to two United States Supreme Court decisions - Smith v. Jackson, 554 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395 (2008) - in which the Supreme Court had discussed but had not elaborated on the meaning of that defense. The proposed rule was published in the Federal Register on February 18, 2010 and is open for a 60-day comment period.
The proposed rule advocates an individualized, case-by-case method for determining whether an employer's policy or practice is "reasonable" and whether it is based on "factors other than age." Possible factors to aid in making that determination include whether the employment practice and the manner of its implementation are common business practices, the number of individuals affected within the protected age group, and the extent to which the employer trained its supervisors to avoid discriminatory actions.
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