| EEOC Proposes New Rule for ADEA Cases |
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In response to the Supreme Court’s rulings in Smith v. Jackson, 544 U.S. 228, 92 FEP Cases 1824 (2005) and Meacham v. Knolls Atomic Power Lab., 128 S.Ct. 2395, 103 FEP Cases 908 (2008), which re-made the law regarding disparate impact cases under the Age Discrimination in Employment Act (ADEA), the EEOC has issued a proposed Rule on February 18, 2008. The Rule may be found by clicking here. In Smith and Meacham, the Supreme Court held that disparate impact claims could be brought under the ADEA but that an employer could mount a defense based on a “reasonable factor other than age.” This standard is lower than a “business necessity” test under Title VII. In the proposed Rule, the EEOC sets out its interpretation on how the Supreme Court’s rulings will apply. In particular, the Commission notes that wholly subjective criteria that result in a disparate impact on older employees or such criteria that can be used to support ageism will be suspect. The EEOC also includes examples on how the EEOC would assess a number of different situations. Comments on the proposed Rule can be made for the next 60 days. Interested parties are urged to participate in the Comment Period on this important new Rule. Your attorney at FortneyScott can assist you in this effort, if you are interested. Please call us at 202.689.1200
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