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April 2010
When It’s Not Age Discrimination
By Eric Bass

     The Equal Employment Opportunity Commission (EEOC) has just released proposed regulations to clarify a defense that employers have to age discrimination claims. The defense centers on whether “reasonable factors other than age” were used to evaluate employees. The EEOC has proposed a “facts and circumstances test” where an employer must show that it “acted prudently in light of those facts.”

     The rule would require that the decision making process be reasonably designed and administered to achieve a legitimate business purpose. This rule covers both what the written process says as well as how you implement it. Training your supervisors how to implement the process and make decisions fairly, accurately and consistently are extremely important.


A determination of “reasonableness” considers:

• is the decision making process a common business practice;

• did the employer take steps to assess and lessen the adverse impact on older employees;

• is the factor related to the employer’s expressly stated business goals;

• is the factor defined accurately;

• how severely does the factor impact older workers and how is the employer addressing that impact; and

• why did the employer select the option it did versus other options.


The process must be based on “objective, non-age factors.” Points to consider here are:

• whether supervisors have unchecked discretion to assess employees subjectively;

• the extent supervisors are asked to evaluate employees on factors that are subject to age-based stereotyping; and

• the training supervisors were given on how to apply the factors and avoid discrimination.

     These considerations are only being proposed at this point. They do not represent the “final say” of the EEOC.

     At the end of the day, you should have already been doing what has been proposed. You must evaluate employees fairly on criteria that have a legitimate business purpose, and you must train the people performing the evaluations on how to complete evaluations fairly, accurately, and without discrimination or stereotyping.

     Content provided by Wishart, Norris, Henninger & Pittman, P.A., which partners with owners of closely-held businesses to provide comprehensive legal services in all areas of business, tax, estate planning, succession planning, purchases and sales of businesses, real estate, family law, and litigation. For more information, contact Robert Norris at 704-364-0010 or visit

Eric Bass is an attorney at Wishart, Norris, Henninger, P.A.
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