On November 16, 2011, the Equal Employment Opportunity Commission ("EEOC") approved, by a 3-2 vote, draft final regulations that provide guidance on the meaning of "the reasonable factor other than age" defense under the Age Discrimination in Employment Act ("ADEA"). These proposed regulations advance the purpose of the ADEA by forcing employers to think twice about whether their policies have an arbitrarily discriminatory effect on older workers.
The Second Circuit, in an non-precedential opinion, reverses summary judgment and remands an ADEA and New York State Human Rights Act claim back to the district court for trial. The panel concludes that something seemed to smell when a 59-year-old auto service department employee was dropped in favor of 36-year-old, . . . .and the best that the employer could produce was affidavits of witnesses - years after the fact - disparaging the employee's organizational skills, flexibility and attitude.