In our last post we discussed the difficulty that many workers in New Jersey and elsewhere are having in securing permanent employment. As companies cut workforces during the recession, many older employees who had worked in the same job or industry for years were laid off. News stories frequently cite the hardship that older workers can have in regaining employment, especially at the level they formerly enjoyed, in the current market.

While this hardship does not necessarily mean that employers are engaging in age discrimination, older workers who believe they are being discriminated against are protected by federal law. In 1967, Congress passed the Age Discrimination in Employment Act, or ADEA. That law protects employees over 40 years old from discrimination based on their age. This week the Equal Employment Opportunity Commission added a new rule under the ADEA which is meant to create brighter lines in age discrimination cases.

The rule is called the Final Regulation on Disparate Impact and Reasonable Factors Other than Age, or RFOA. It has undergone various stages of analysis and revision over the past few years. Specifically, the rule provides that an employer’s action violates the ADEA if its effect is disproportionately detrimental to older workers. But there is an exception. An employer will not be in violation of the law if it can show its action is “based on a reasonable factor other than age.” This exception is meant to give employers some leeway in how they choose to operate their businesses.

Many employers come under the rule’s scope. These include public employers at the state and local level, unions and private businesses who employ at least 20 people. The new rule also takes into account recent Supreme Court jurisprudence relevant to employment law.

Source: U.S. Equal Employment Opportunity Commission, “EEOC Issues Final Rule on ‘Reasonable Factors Other than Age’ Under the ADEA,” Mar. 29, 2012.