On Monday the U.S. Chamber filed comments in response to the Equal Employment Opportunity Commission’s (EEOC) proposed rulemaking to define an important employer defense under the Age Discrimination in Employment Act (ADEA).
 
The employer defense permits employment practices based on a "reasonable factor other than age." The EEOC would define "reasonable" so narrowly that it would be difficult for employers to demonstrate that routine business decisions meet these standards. Consequently, what should be a simple test would be changed to a fact intensive analysis and make it very difficult for employers to win even the most frivolous cases at the summary judgment stage. The Chamber asserts that this would harm businesses and American employers by defining the defense very narrowly with two very problematical results. First, legitimate economic decisions would now be open to second guessing by the EEOC and plaintiffs’ lawyers. Second, employers will find it much more difficult to defend these decisions and beat back frivolous litigation.
 
Frivolous litigation is already a significant problem under the Age Discrimination in Employment Act. In fact, last year the Equal Employment Opportunity Commission (EEOC) only found reasonable cause to believe discrimination occurred in 3% of the 20,000 claims it processed.

Unfortunately, a new proposal by the EEOC would make this problem worse. Further, it will make it much more difficult for employers to defend legitimate economic business decisions. For example, if an employer decided to close a line of business, the EEOC could review that decision as well as alternatives available to the employer. If it believed the employer’s economic decision did not seek to limit the impact on older workers, it could second guess the employer’s decision.
 
The simple fact is that employers exercise business judgment all of the time – based on what is best for their company. The EEOC would now make the most basic business decision open to scrutiny by the government and by the courts. Age discrimination laws serve an important purpose, but businesses are already struggling to keep their doors open, and with this new rule employers can expect to see more frivolous lawsuits and more time and money wasted fighting them.