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EEOC Issues Final Regulations Explaining “Reasonable Factors Other Than Age” Defense

“Equality,” I spoke the word
As if a wedding vow
Ah, but I was so much older then
I’m younger than that now

– “My Back Pages”, Bob Dylan

Yesterday, the EEOC published its “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” as it relates to the Age Discrimination in Employment Act of 1967 (ADEA).  According to the EEOC’s press release, the final rule explains the meaning of the Reasonable Factor Other than Age (RFOA) defense and “strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.”

Pursuant to the ADEA, an employer with 20 or more employees cannot discriminate against any employee or applicant who is 40 years of age or older.  Although most people think of discrimination as an intentional act, discrimination can occur even when there is no intent to discriminate, such as when the employer has a policy or practice that has an unintended effect of harming older workers more so than younger workers.  In these instances, the policy or practice is said to have a “disparate impact” on the protected class of older workers and are prohibited by the ADEA, unless the employer can defend the practice by demonstrating that the disparate impact is based upon RFOAs.

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Hurry Up and Wait

The waiting is the hardest part
Every day you see one more card
You take it on faith, you take it to the heart
The waiting is the hardest part

“The Waiting”
Tom Petty and the Heartbreakers

Contrary to popular myth, this classic Tom Petty song was not written about attorneys, but you cannot blame litigators for often feeling that the song applies to them.   A litigator spends hours preparing for an important hearing or trial, has dreams (or nightmares) of presenting his argument to the court.  Then the day finally comes, and the lawyer gets in his car 20 minutes early to account for traffic, only to find out that traffic is running 25 minutes behind.  The adrenaline is kicking in.  He rushes to the courtroom just as the clock strikes the scheduled start time and then… Read more