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SHRM Newsletter: New EEOC Age Adverse Impact Discrimination Regulations



April 3, 2012

This is Utah SHRM Legal-mail no. 2012-8 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). 







NEW EEOC AGE ADVERSE IMPACT DISCRIMINATION REGULATIONS: The Equal Employment Opportunity Commission (EEOC) issued new age discrimination regulations on March 29, 2012.  The regulations focus on what an employer must show to justify employment actions that adversely affect older workers (aka adverse impact discrimination cases).  In such cases, the federal courts have held that an employer must prove it had a reasonable factor other than age or an RFOA.  The EEOC’s new regulations say that an RFOA must not only be rational but reasonable in design and administered in a manner that reasonably achieves the employer’s purposes.  The EEOC provides five factors to guide this analysis: “(1) The extent to which the factor is related to the employer’s stated business purpose; (2) The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination; (3)The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes; (4) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and (5) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.”  The EEOC also says it will consider all the involved facts and circumstances when deciding if an employer has met its burden of showing an RFOA. You can read the new regulations here:  The EEOC also has provided a question and answer summary of the regulations, which can be found here:

FMLA CHANGES PROPOSED:  The United States Department of Labor (DOL) has  issued some proposed changes to its regulations interpreting the Family and Medical Leave Act (FMLA).  The proposals impact three specific areas: military leave, flight crew eligibility and the calculations on increments of FMLA leave used.  The changes to military and flight crew leaves reflect statutory changes required due to Congressional enactment of two separate laws back in 2010 and 2011.  However, according to national SHRM, the remaining changes “include the Department’s proposed deletion of a SHRM-supported provision allowing employers to utilize different allotments of FMLA leave at different times of day under certain circumstances related to employees on reduced or incremental FMLA leave.”  SHRM notes that, “If this provision is deleted, employers once again will be required to track intermittent or reduced schedule leave in the smallest increment of time used by their payroll systems.”  Stay tuned for updates!

COMMENTS SOUGHT ON REVISED I-9 FORM: The United States Citizenship and Immigration Services (USCIS) office is seeking public comment on a revised I-9 form.  USCIS has said that key revisions to the form include “expanded Form I-9 instructions and a revised layout;  new, optional data fields to collect the employee’s email address and telephone number; and new data fields to collect the foreign passport number and country of issuance.  Only aliens authorized to work in the U.S. who have also recorded their I-94 admission number on Form I-9 will need to provide the foreign passport number and country of issuance.”  You can read the request for public comment here:

RECONSIDERING WORK FROM HOME AS AN ACCOMMODATION: An Illinois employer is now facing a jury trial in a disability discrimination case alleging it failed to accommodate by refusing to allow an employee with a disability to telecommute.  The court concluded that technology now seems to make it much easier to allow work from home and that the particular facts and circumstances of each case must be examined to determine if there is a violation of the Americans With Disabilities Act (ADA).  Employers should take this ruling to heart when dealing with accommodation requests.

THIS JOB STINKS! A February 2012 Fitness Magazine survey asked 2,000 male and female Americans about their pet peeves at work. The top two? Bad odors and co-workers who take credit for another’s work.  Other pet peeves were loud talkers and people who eat someone’s fridge food.  Interestingly, men were most dismayed by the bad odors and women by the inappropriate credit-taking.  Topping the list of bad odors were body odors, foods, perfume, smoking, bad breath, flatulence, scented candles and alcohol.  Obviously, although some of these issues may implicate various legal issues, such as the ADA and drug testing laws, the survey also shows that for many workers, the workplace just stinks.  Hopefully, your company’s HR professional nose how to deal with all aspects of this problem.  No matter which way you choose to deal with it, make sure your approach passes the smells test.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Phone: 801-534-7315

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.