If you will recall, in 2008 the U.S. Supreme Court ruled that employment practices that have a disparate impact on older workers are discriminatory unless the practice is “justified by reasonable factor other than age.” The EEOC has now issued proposed regulations concerning what are reasonable factors. The proposed regulations state that a factor is reasonable if it is objectively reasonable when viewed from the position of a reasonable employer under like circumstances both in its design and in the way it is administered. A list of factors is provided that may be relevant to the reasonableness determination:

* Whether the employment practice and the manner of its implementation are common in the industry;
* The extent to which the factor is related to a stated goal of the employer;
* Extent to which the employer took steps to define the factor accurately and to apply the factor, including training, guidance and instruction of the managers;
* Extent to which the employer took steps to assess the adverse impact of its employment practices on older workers;
* The severity of the harm to the individuals in the protected class, including the degree of injury and the number of persons adversely affected, as well as the extent to which the employer took preventative or corrective action to mitigate harm;
* Whether other options were available, and the reason the employer selected the option it did;
The proposed regulation goes on to explain that the above factors only apply when an employment practice is not based on age, and again lists factors that may be relevant to a defense, including:

* Whether the employer gave supervisors unchecked discretion to assess employees subjectively and did not provide discriminatory employment practices, and took steps to minimize discrimination;
* Supervisors were not asked to evaluate based on factors known to be subject to age-based stereotypes;
* Extent to which supervisors were given guidance or training on how to apply the factors and to avoid discrimination.
As it is unlikely that this proposed regulation will be dramatically modified, and it is a clear indication of the position of the EEOC, employers should work with their attorneys to ensure that any practice that will clearly have a larger impact on older employees will be determined to be reasonable under it.