Office of General Counsel

Welcome to the Employment Law section of our webpage. Employment law issues are complex, often subject to state and local law (not ordinarily covered on CLIC pages) as well as federal law. This front page will reflect our most current information on employment law affecting educational institutions.

Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act, 77 Fed. Reg. 19080, March 30, 2012, Final Rule, Effective April 30, 2012.

This final rule clarifies how an employer can defend against a claim of disparate impact (not treatment) on the basis of age. The employer must show the employment practice is based upon a reasonable factor other than age. The employer bears the burden of production and persuasion to demonstrate the defense. An RFOA is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA. The practice must be reasonably designed to further or achieve a legitimate business purpose in light of the facts and circumstances. The amended regulation at 29 CFR 1625.7 lists considerations that are relevant. The extent to which the employer defined the factor accurately and the extent to which guidance and training was given to managers is relevant. See the Miller and Martin article on 5/2/12 titled "What is a Reasonable Factor Other than Age as Now defined by the EEOC?"

Spaeth v. Georgetown University, No. 11-1376 (U.S. Dist. Court for DC) March 13, 2012

Plaintiff born in 1950 seeking Law School Professor position filed a claim against a number of schools under the ADEA when he was not offered employment. The court concluded the complaint contains sufficient factual allegations, if accepted as true, to state a claim for relief that is plausible on its face. The court dismissed plaintiff’s claims for compensatory and exemplary damages, as these are not available under the ADEA. The plantiff also brought a claim under the DCHRA and he seeks an injunction ordering Georgetown to hire him.

National Association of Manufacturers v. NLRB, Filed March 2, 2012.

Complete text (46 pages) of decision by U.S. District Court (DC) holding that the National Labor Relations Board did not exceed its authority under the National Labor Relations Act in promulgating Subpart A of its Final Rule on Notification of Employee Rights Under the National Labor Relations Act. Under the rule most private sector employers are required to post a notice advising employees of their rights under the National Labor Relations Act. The court holds, however, that the provision of Subpart B of the rule deeming every failure to post the notice to be an unfair labor practice, and the provision tolling the statute of limitations in unfair labor practice actions against employers failing to post the notice, exceeded the authority of the NLRB under the NLRA.