The FDA recently approved Epidiolex (cannabidiol), which contains a marijuana-derived drug substance, for the treatment of two rare forms of epilepsy. Does this mean that the federal government is saying that people can now begin using a marijuana-based drug treatment – including employees in the workplace? Not so fast. Continue Reading The Smoke Hasn’t Cleared: What’s the Workplace Impact of the FDA’s Approval of a Marijuana Based Drug?
The NLRB continues to take action designed to help unions organize employees. The latest step is the Board’s recently established web page designed to inform employees of their right to engage in protected concerted activity. The web page, located at www.nlrb.gov/concerted-activity, begins with the statement: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.” The web page includes a map of theUnited States with various points marked on the map which the user can click on to show approximately a dozen descriptions of recent NLRB cases involving protected activity by non-union employees.
The cases described include, among others, (1) a construction crew member who was fired after refusing to work in the rain near exposed electrical wires; (2) a customer service representative who lost her job after discussing her wages with a coworker; (3) an engineer at a vegetable packing plant who was fired after reporting safety concerns affecting other employees; (4) a paramedic who was fired after posting work-related grievances on Facebook; and (5) poultry workers who were fired after discussing their grievances with a newspaper reporter. All of the cases involved a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.
Of course, the Board’s web page does not mention that the law it enforces also gives employees the right not to join a union.
Last week I wrote about the EEOC’s new Final Rule on the Reasonable Factors other than Age (RFOA) defense in disparate impact claims brought under the Age Discrimination in Employment Act (ADEA). The EEOC has just published a Q&A explaining the new Rule.
In explaining the purpose of the Final Rule, the Q&A provides:
“The rule does two things:
- It makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity; and
- It explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.”
The Q&A explains what factors determine whether an employment practice is based on RFOA and provides examples demonstrating those factors that may be taken into account in making this determination. According to the Q&A, “[a]n employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.” After listing the considerations that are relevant to determining the reasonableness of the employer’s practice, the Q&A points out that the RFOA defense “could be established absent one or more of the considerations, and that there could even be a situation in which the defense is met absent any of the considerations. Similarly, the defense is not automatically established merely because one or more of the considerations are present.” Among other things, the Q&A clarifies that, while not required to do so, maintaining documentation that proves that the employer reasonably designed and administered the practice to achieve a legitimate business purpose in light of potential harm to older workers can help the employer establish an RFOA defense.
We will watch for reported RFOA cases and let you know what courts have to say about the Rule.
Last Friday, the EEOC published its Final Regulations on Disparate Impact and Reasonable Factors other than Age under the ADEA. The Final Regulation clarifies that an employment practice that has an adverse impact on individuals 40 and older is discriminatory unless the practice is justified by a “reasonable factor other than age” and that the individual challenging the allegedly unlawful employment practice bears the burden of isolating and identifying the specific employment practice responsible for the adverse impact. The employer has the burden of establishing facts showing that a reasonable factor other than age (RFOA) exists.
The EEOC issued the Final Regulations in order to conform existing regulations to recent Supreme Court decisions and to provide guidance about the application of the RFOA defense. The RFOA determination is a fact intensive analysis. Section 1625(e)(1) of the revised regulations provides that an RFOA is one that “is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances.” Moreover, the Regulations set forth a non-exhaustive list of factors relevant to whether an employment practice is reasonable and is based on factors other than age. These factors include:
- The extent to which the factor is related to the employer’s stated business purpose (i.e., the legitimate business purpose that the employer had at the time of the challenged employment practice);
- The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which the employer gave managers and supervisors training about how to apply the factor in a way so as to avoid discrimination;
- The extent to which the employer attempts to minimize subjectivity and avoid age-based stereotyping, particularly where the criteria being evaluated are known to be subject to negative age-based stereotypes;
- The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
- The degree of harm to individuals within the protected age group, in terms of both the scope of the injury to the individuals affected and the numbers of persons adversely affected, the availability of measures to reduce harm, and the extent to which the employer weighed the harm to older workers against both the costs and efficiencies of using other measures that will achieve the employer’s stated business purpose.
Significantly, the RFOA analysis does not adopt Title VII’s requirement that the employer must adopt a less discriminatory alternative. However, the availability of less discriminatory options is manifestly relevant to the issue of reasonableness. According to the EEOC, “[a] chosen practice might not be reasonable if an employer knew of and ignored an equally effective option that would have had a significantly less severe impact on older workers. On the other hand, “an employer’s choice not to use an alternative that only marginally reduces the impact might be reasonable under the ADEA.”
The RFOA is an important defense for an employer in an ADEA case. Employers should take into consideration the factors in the new regulations to properly utilize this defense.