PTC/MW - Personnel Testing Council of Metropolitan Washington

Legal Update - March 2010

“REASONABLE FACTOR OTHER THAN AGE” (RFOA) BEING DEFINED BY EEOC

Smith v. City of Jackson (544 U.S. 228, 2005) established that disparate impact theory applies to cases brought under the Age Discrimination in Employment Act (ADEA).  The employer can defend against disparate impact by a showing that the practice causing it is justified by a RFOA.  The employer bears the burden of proving RFOA (Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395, 2008).  RFOA is a lesser burden than Title VII’s “business necessity,” which the U.S. Supreme Court seems to have identified as use of a particular practice in the light of alternatives that may have lesser adverse impact.  (As noted here last month, the Second Circuit still holds to “job related” and “consistent with business necessity” as being essentially the same thing, which is the traditional view of what the Supreme Court meant by the two phrases.)  The question, however, is what is “reasonable?” EEOC intends to provide an answer.  It published a Notice of Proposed Rulemaking on February 18, 2010 (http://www.eeoc.gov/eeoc/newsroom/release/2-18-10.cfm).  There will be 60 days for comments.

The proposed rule emphasizes individualized, case-by-case determination whether an employment practice is based on a RFOA.  Logically, RFOA only applies when the practice in question is not based on age.  It does not apply to disparate treatment.  A practice that is highly subjective (EEOC’s example is having supervisors in the abstract rate employees on “flexibility”) may be subject to age-based stereotyping.  Factors to be considered as to whether the practice is really based on something other than age include:

Ricci v. DeStefano FAQs posted by OFCCP

OFCCP has released a questions and answers document (download PDF) on the U.S. Supreme Court ruling in Ricci v. DeStefano. For the last 8 months some  federal contractors have wondered whether the Ricci ruling had implications for how (1) contractors should conduct adverse impact analyses, (2) OFCCP would evaluate selection procedure validity research, (3) to differentiate reasonable alternatives from unreasonable alternatives.   

The FAQ section includes:

• A summary of the Court's decision;
• Consideration of how the decision affects OFCCP's procedures during compliance reviews and contractors' affirmative action obligations;
• General suggestions for how contractors can avoid scenarios like the one seen in Ricci.

Legal Update - February 2010

Gathered by Richard Tonowski, Equal Employment Opportunity Commission (EEOC)

SELECTION CASES

G’day, mate.  You’re out 19 million quid.

Outback Steakhouse is a national organization of Australian-themed casual restaurants.  The franchise in Colorado entered into a settlement with the EEOC valued at $19M.  The issue was non-promotion of women to managerial positions.

As with several other recent EEOC selection cases, the substance of the suit was on the looseness of the selection procedure.  In EEOC’s view, the problem was a “tap on the shoulder” initial step.  There were no applications.  Managerial prospects were identified by their supervisors.  The procedure was more formalized in later steps, including tests that were not at issue in the charge.  For EEOC and the charging parties, too few women got the call to advance. 

President's Note - February, 2010

New PTC/MW Website Ready to Launch
by: Eric Dunleavy, DCI Consulting

This month we are excited to announce the launch of the new and improved PTC/MW website. If you are reading this note you have already seen some of the improvements to the website.  Special thanks to Zack Horn (Aptima), our Webmaster, who has been leading this effort as part of the Communications committee. He has done a fantastic job on the website redesign and has incorporated some cutting edge technology. It is worth reiterating several of the new website features here. Specifically, the new website offers the following:  

January 2010 Headlines: Legal Front

Gathered by Richard Tonowski, Equal Employment Opportunity Commission (EEOC)

LEX NON TALIONIS

That old law about "an eye for an eye" leaves everybody blind. The time is always right to do the right thing.
Martin Luther King Jr.

Revenge is a kind of wild justice; which the more man's nature runs to, the more ought law to weed it out.
Francis Bacon

The law has done serious weeding when it comes to retaliation for doing protected EEO activity.   But retaliation cases are booming.  The Society for Human Resource Management (SHRM) reported on December 9 that retaliation awards for 2002-2008 had a median of $225,000.  Retaliation tied with discrimination for median settlement at $70,000. 

SHRM noted in a December 10 online article that Family and Medical Leave Act (FMLA) claims were also rising, and that it is easier for a plaintiff to establish an adverse action under FMLA than Title VII.  As with EEO law, a plaintiff can win on FMLA retaliation after losing on the initial complaint.

Here are two recent cases touching on retaliation, together with several cites to recent court decisions.