Most discrimination lawsuits allege that an employer made a decision because of an employee's protected characteristic, such as race, disability, or age. For example, an employee might claim that he was fired once he turned 70, or that she was not promoted because her manager thought she didn't have the energy and vigor required for the position due to her age.
However, some discrimination lawsuits are based not on the employer's intent to discriminate, but on the unintended discriminatory consequences of an employer's policies or practices. These cases, called "disparate impact" cases, claim that an employer's facially neutral policies or practices have a disproportionately negative effect on a protected class. In age discrimination cases, these "disparate impact" claims often involve layoffs, if a significant number of the employees who lose their jobs are older than 40. An employer can defend itself against this type of claim by proving that its decision was based on a "reasonable factor other than age."
An employer can escape liability for age discrimination if it can prove that the policy or practice that created the disparate impact was based on a reasonable factor other than age (RFOA). This defense is available only in disparate impact cases. If the employee can show that the employer discriminated intentionally, the employer can't make this claim.
In 2008, the Supreme Court decided that the RFOA is an affirmative defense, which means the employer must prove it at trial. But this left open the question of exactly what qualifies as an RFOA, including which factors are "reasonable" for an employer to consider when making job decisions and how much responsibility an employer has to try to reduce the negative impact on older workers.
In 2012, these questions were answered when the Equal Employment Opportunity Commission (EEOC) issued final regulations on the RFOA defense. The regulations define an RFOA as a "non-age" factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its obligations under the ADEA.
The employer must show both that the employment practice it used was reasonably designed to achieve a legitimate business purpose and that the employer applied the factor in a way that reasonably achieves that purpose. In other words, an employer won't succeed in arguing that it made layoff decisions based on performance evaluations if some younger employees with poor evaluations were kept, while some older employees with stellar records were laid off. Similarly, an employer who claims it is trying to save money by laying off its most senior workers will lose if employees can show that some older workers who were new to the company were let go.
In deciding whether an employer has successfully proven the RFOA defense, a court must consider all of the relevant facts and circumstances. Among the things a court can consider when deciding whether an employer's practice or policy counts as an RFOA are:
If you have lost your job or been subjected to another negative employment action, and you believe it was based on your age, you should talk to an experienced employment lawyer right away. A lawyer can help you evaluate the strength of your claims and negotiate with your employer. If you decide to proceed with a lawsuit, a lawyer can help you file a charge of discrimination with the EEOC, which you must do before going to court. And, if you can't settle your claims, a lawyer can represent you in court.