During a public meeting held on November 16, the Equal Employment Opportunity Commission (EEOC) voted 3-2 in favor of a draft final rule defining the parameters of the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA). The rule will now be sent to the Office of Management and Budget (OMB) for review, and upon approval, published in the Federal Register as a final rule. Following the vote, the Commission held a panel discussion on hiring obstacles that face disabled veterans.

EEOC Rule

The need to clarify the scope of this RFOA defense was brought about by two U.S. Supreme Court cases that addressed an employer’s defense against claims that a facially neutral employment policy or practice has a disparate impact on older workers.

In the first case (Smith v. City of Jackson) decided in 2005, the Supreme Court held that disparate impact claims are cognizable under the ADEA, and that the appropriate standard for determining the legality of a practice that disproportionately affects older workers is the RFOA test, not the more stringent “business necessity” test used for other types of discrimination claims. Three years later in Meacham v. Knolls Atomic Power Laboratories, the Supreme Court held that the employer bears the burden of production and persuasion in making a RFOA defense in an ADEA disparate impact claim. To that end, the EEOC sought to revise the current ADEA regulations to clarify the RFOA standard and issued a proposed rule on February 18, 2010. 

Those voting in favor of sending the rule to the OMB were EEOC Chair Jacqueline Berrien and Commissioners Stuart Ishimaru and Chai Feldblum. The two Republican members of the Commission – Constance Barker and Victoria Lipnic – voted against the draft final rule. More information on the final rule will be provided when published. While details about the rule are not yet available, the party-line vote indicates that the new rule may make it more difficult for an employer to assert an affirmative defense in an ADEA disparate impact case.

Hiring Disabled Veterans

The second portion of the public meeting focused on various obstacles disabled veterans face when re-entering the workforce. A number of representatives from government agencies, the private sector, and advocacy groups discussed the unique hiring barriers these job applicants encounter.

George M. Parker with the Department of Labor’s Veterans Employment and Training Service (DOL VETS) outlined the disability provisions under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Parker noted that this statute’s disability provisions

are broader because the statute does not define “disability”, per se. The Department has interpreted the term to mean any injury or disease (to include psychological conditions) that would substantially interfere with an individual’s ability to perform the functions of his or her job. Accordingly, if a returning service member requires assistive devices or other technology to perform his or her job, the employer is required to make reasonable efforts to provide such assistance.

Claudia Gordon, Special Assistant to the Director of the Office of Federal Contract Compliance Programs (OFCCP), discussed her division’s enforcement of the affirmative action provisions of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). In April 2011, the OFCCP issued a proposed rule that would strengthen a federal contractor and subcontractor’s affirmative action requirements under VEVRAA. Among other things, the proposal describes specific actions a contractor must take to satisfy its obligations, increases the contractor’s data collection obligations, and requires the contractor to establish hiring benchmarks to assist in measuring the effectiveness of its affirmative action efforts. During the public meeting, Gordon said the agency expects to issue a final rule on these affirmative action requirements next year.

In addition, the OFCCP is in the process of drafting a rule that would “strengthen the regulations implementing Section 503 of the Rehabilitation Act of 1973 in order to improve employment opportunities for people with disabilities.” That rule is currently under development.

As for enforcement initiatives, Gordon’s written testimony notes that the agency has added 200 new compliance officers since the beginning of the Obama Administration, and “has shifted its enforcement activities to hold contractors accountable for their employment practices.” To that end, a new OFCCP protocol requires regional compliance officers “to increase on-site reviews which are necessary to improve verification efforts and increase contractor accountability.” Her testimony states that the OFCCP’s investigative procedures “include verification that the employer is listing job openings with an appropriate employment service delivery system so that veterans may be given priority in referral.” According to Gordon, over the past two years 20-30% of OFCCP reviews have uncovered VEVRAA violations.

Speaking on behalf of the U.S. Chamber of Commerce, Vivian Eng Bendewald, Program Manager for the Injured Veterans Employment Initiatives, stated that: “Employer needs are tied to finite resources – some more finite than others. Thus, in creating employment opportunities for the [wounded, ill and injured (WI&I)] there is no algorithm to define best practices due to the diversity of the WI&I population as well as the needs and business abilities of a given employer.” Eng Bendewald also noted that in March 2011 the CoC partnered with the DOL VETS to launch the Hiring Our Heroes (HOH) Veterans Employment Initiative “to improve local public-private sector coordination in communities where veterans and their families live, or return to after military service.”

A complete list of panelists and links to their testimony can be found here.