What are some defenses to a claim of age discrimination?

Author: Shannon C. Johnson

If an employee or applicant brings a claim of age discrimination, some common defenses include:

  • Bona fide occupational qualification (BFOQ) exception - An employer will not be liable for age discrimination if the distinction based on age is reasonably necessary to the normal operation of the employer's particular business or enterprise;
  • Business necessity (BN) defense - Similar to the BFOQ exception, an employer may be able to defend a claim of age discrimination on the grounds that the challenged employment practice utilized significantly correlates with the fundamental requirements of job performance and there is no reasonable alternative available;
  • Poor performance;
  • Violation of employer policy or workplace rules;
  • Reasonable factor other than age (RFOA) - An employer may make an employment decision based upon a reasonable factor other than age (such as the employee's performance or qualification for the position);
  • Seniority system, employee benefit plan, early retirement plan - An employer may take age into consideration in order to comply with a bona fide seniority system, employee benefit plan or early retirement plan;
  • Failure to meet statutory requirements - An employer may defend an age discrimination claim brought before a court or an agency on the grounds that the employee or applicant failed to meet the statutory requirements and file the claim in a timely manner.