WIRTW #115

This week, the EEOC published proposed regulation on the reasonable factors other than age defense under the ADEA. The regulations (available for download as a PDF from Regulations.gov) suggest that the following 6 factors are relevant in
determining whether an employment practice is reasonable:

1. Whether the employment practice and the manner of its implementation are common business practices;

2. The extent to which the factor is related to the employer’s stated business goal;

3. The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);

4. The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;

5. The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and

6. Whether other options were available and the reasons the employer selected the option it did

Factors relevant in determining whether a factor is ‘‘other than age’’ include:

1. The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;

2. The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age based stereotypes; and

3. The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

For more on these new regulations, check out the following:

• EEOC’s Proposed Age Discrimination Regulation Introduces Practical Significance –Stephanie R. Thomas

• EEOC Proposes New Age Discrimination Regulations – Dennis Westlind’s World of Work

• Proposed EEOC Rule on ADEA Defenses – Workplace Prof Blog

• EEOC Addresses Scope of Reasonable Factors Other than Age Defense Under the ADEA – Washington D.C. Employment Law Update

As to the rest of the week’s best employment-related thoughts…

Non-Competition Agreements

• Do You Know the Muffin Man? Bimbo Prevents Him From Switching Jobs – Dan Schwartz’s Connecticut Employment Law

• Dunkin’ Donuts Sued by Alleged Drunkin’ Ex-Exec – Philip Miles’s Lawffice Space

• Rethinking noncompetes – Jay Shepherd’s Gruntled Employees

• Burning Bridges Upon Departure: It May Feel Good, but It’s Bad Form – The Business of Management

Disability (and related) Discrimination

• An Employee Need Not be Disabled to Pursue ADA Claim – Warren & Hays Employment Law Blog

• Proposed Changes to Psychiatric Manual Stir Lawsuit Fears – Walter Olson’s Overlawyered

• The 7 Most Common Mistakes Employers Make Under GINA – Greg Gordillo

Miscellaneous

• Here’s a Novel Idea: Read Your Own Company Handbook – Mindy Chapman’s Case In Point

• Personnel Files: Review Before or After Interview, or Not at All? – Debra Reilly’s Workplace Investigations Blog

• Use the anchoring bias to buoy up performance in mediation – Work Matters

• Waiting Time is Often Work Time … and Must be Paid – Overtime Advisor

• Privacy in the Workplace: E-Mail Does Not Equal Texting – Michael Haberman’s HR Observations

• Alabama Shooting and Background Checks – The Word by John Phillips

• Model Jury Instructions Deal With Social Media Head On – Molly DiBianca’s Going Paperless

• In federal employment discrimination claims, race and sex of judges matter (a lot) – David Yamada’s Minding the Workplace

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.