Rosen Law Office

The Equal Employment Opportunity Commission plans to clarify the standards for defending against age discrimination claims.   The new standards are being proposed to respond to the Supreme Court’s decision in Smith v. City of Jackson, 544 U.S. 228 (2005).

Before Smith, a plaintiff had to show that the employer intentionally treated him differently from other workers due to his age.   Smith made it clear that an employer’s action could be discriminatory even if it merely had a disparate impact on older workers.

If Smith made the employee’s case easier to prove, it also lightened the employer’s burden.   The Court said employers no longer need to show that their action was justified by a business necessity.  They simply need to demonstrate that the action was reasonable and was based on something other than age.

The EEOC’s regulations haven’t kept up with that change.  They still say an employment practice that has an adverse impact on older workers “can only be justified as a business necessity.”  The proposed rule gets rid of that requirement.  It says,  “whether a particular employment practice is based on reasonable factors other than age turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts.”

The proposed rule sets up standards for determining whether the practice is reasonable.  Those factors include: whether the employer took steps to assess the adverse impact of its employment practices on older workers; the extent to which older workers may be harmed by the policy; and whether “other options” were available to the employer.

When an employer has to show that “other options” weren’t available, it sounds suspiciously like the old “business necessity” standard.  But the EEOC  indicates the employer isn’t required to use the other options.   Their availability is one factor to consider in deciding whether the action was reasonable.