Under the Age Discrimination in Employment Act, an employer may avoid liability for employment practices that have a disparate impact on individuals in the protected age group (40 and over) by showing that it acted based on "reasonable factors other than age" (commonly known as the "RFOA" defense). Last week, the Equal Employment Opportunity Commission published a final rule concerning the RFOA defense. The rule, which will take effect on April 30, is expected to make it more difficult for employers to prevail on age-based disparate impact claims.
What Is "Disparate Impact"?
The federal anti-discrimination laws generally recognize two types of discrimination claims. A "disparate treatment" claim is more common and requires proof that the employer treated the employee differently from the way it treated "similarly situated" employees. For example, an employer may issue written warnings for a certain type of misconduct, but when a 60-year-old commits that same misconduct, he or she is fired. If the employer does not have a good explanation for treating the older employee more harshly, then the employee may have a valid "disparate treatment" claim. To prevail on a disparate treatment claim, the employee must have evidence of the employer's discriminatory intent.
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