In the final regulations, the EEOC concludes that the individual challenging an employment practice as having an age-based adverse impact is responsible for isolating and identifying the specific employment practice responsible for the adverse impact. In turn, as explained in EEOC questions and answers about the regulations, an employer would be required to prove the RFOA defense only after an employee has identified a specific employment policy or practice, and established that the practice harmed older workers substantially more than younger workers.
The rule emphasizes the need for an individualized consideration of the facts and circumstances surrounding the particular situation. It includes the following list of considerations relevant to assessing reasonableness:Source: Equal Employment Opportunity Commission Press Release (March 29, 2012)
- The extent to which the factor is related to the employer’s stated business purpose;
- The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
- The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
- The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
- The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.