EEOC Approves New Age Bias Regulation

Federal Agency Also Experiences Record-Breaking Year

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a draft final regulation that clarifies the Age Discrimination in Employment Act’s (ADEA) “reasonable factors other than age” test. The new standard will make it easier for workers to establish disparate impact claims and will put a heavier burden on employers in defending such claims.

The new regulation eliminates the “business necessity test,” which was formerly used to determine the “reasonable factors other than age” (RFOA) standard. The federal agency voted 3 to 2 to eliminate the old test to bring the ADEA rules in line with two recent U.S. Supreme Court decisions, Smith v. City of Jackson (2005) and Meacham v. Knolls Atomic Power Laboratory (2008).

In Smith, the Supreme Court held that the ADEA permits older workers to bring disparate impact claims but failed to explain what the RFOA test requires. In Meacham, the justices held that the business necessity test does not apply to an RFOA determination. Commissioner Constance S. Barker, who voted against the rule, commented that “the regulations fabricate a new standard for the RFOA defense without foundation in the ADEA.”

In a separate development, the EEOC recently released its annual performance and accountability report. According to the report, the EEOC experienced a record-breaking year, with $365 million in recoveries and a new high of 99,947 private sector discrimination charges. The federal agency also achieved a 10 percent reduction in its backlog. In addition, the EEOC’s private sector mediation program obtained over $170 million in benefits for discrimination claimants during fiscal year 2011.