EEOC Proposes Rules on Factors that Affect Older Workers

Posted by marykeating on March 13, 2010 under Age discrimination, Pending legislation | Be the First to Comment

In a down job market, discrimination claims rise.  One view is that people who are laid off anyway have nothing to lose by filing a claim.  Another, and one I’m more partial to, sees the downsizing workplace as indulging in stereotypes of what the efficient future worker looks like.  And age discrimination is the frequent result of a stereotyped, biased, look at “what this place needs to stay competitive in the 21st century.”  Someone born way back in the mid-20th century, when they didn’t even have personal computers, can be muscled aside as necessarily lacking in technological skills.  And someone without a college degree cannot possibly be as good as one with a degree.  Application of these criteria on a group, rather than individual, basis in choosing who is laid off can lead to a disproportionate impact against older workers.

The Supreme Court allows an employer to win an age discrimination case by bringing up a “reasonable factor other than age.”  Smith v. City of Jackson, 544 U.S. 228 (2005).  In the scenario above, an employee who truly lacks necessary technological skills for his job, regardless of his age, is a reasonable candidate for the reduction in force.  But these factors have to be applied in an objective manner so as to avoid stereotyping.

The Equal Employment Opportunity Commission highlights this dichotomy in its proposed rules on reasonable factor other than age. The EEOC’s rules would require that the criteria used to determine the layoffs are objectively reasonable, and that they strive to ensure that they are applied in a way that avoids, as much as possible, subconscious discrimination.  For example, the EEOC warns that “criteria known to be susceptible to age-based stereotyping, such as flexibility, willingness to learn, or technological skills” should be backed up by training in judging each employee’s performance level, and how to avoid age-based discrimination in doing so.  75 Fed. Reg. at 7217.  When managers are given too much discretion, and little training on the application of these criteria, the reasonable factor defense weakens.

Importantly, the EEOC addresses the common issue of a company firing its most expensive workers.  This looks objectively reasonable, but the EEOC warns that when it has a disproportionate impact on older workers, the company should also consider the revenue that the highly paid people bring in when deciding whom to cut.

These rules are open to comment until April 19.