The Texas Supreme Court ruled last week in Prairie View A&M University v. Chatha, that the federal Lilly Ledbetter Fair Pay Act (Ledbetter Act), amending Title VII to provide that a discriminatory pay decision occurs each time a paycheck is received and not just when an initial salary decision is made, does not apply to the Texas Commission on Human Rights Act (TCHRA).  When a claimant files a discriminatory pay claim under federal law, the 180-day limitations period to file a complaint with the EEOC begins each time a claimant receives a paycheck containing a discriminatory amount. The Court ruled that because the Texas Legislature has not similarly amended the TCHRA, the 180 day limitations period begins on the first day that the claimant is informed of the compensation decision. Thus, a discriminatory act occurs at the time of the initial discriminatory act, not when the consequences of the act start having a discriminatory effect.  Therefore, the claimant in the Chatha case lost because she did not file a complaint within 180 days of the first day she became aware of the discrimination.  The Court of Appeals decided the case by ruling that the Ledbetter Act did modify the TCHRA and grafted the less restrictive rule on the TCHRA.  However, the Texas Supreme Court overruled the Court of Appeals (and two federal courts who had predicted the Texas Supreme Court would rule that the Ledbetter Act was engrafted onto the TCHRA) and, in essence, punted the issue to the Republican controlled Texas Legislature to see what they will do with the issue (Note: the Ledbetter Act has been opposed by the Republicans at the federal level, if that helps with your opinion as to what the Texas Legislature is likely to do about the issue).

In an interesting footnote (number 13) in the Chatha opinion, the Court states:  “We note that a situation could arise where an employer has adopted a facially discriminatory payment system
that would potentially constitute an act of intentional discrimination anytime the employer issued a check to a disfavored employee. See Ledbetter, 550 U.S. at 634; Cooper-Day, 121 S.W.3d at 84. However, neither party alleges that situation applies here.”  The Cooper-Day v RME Petroleum Co. case cited by the Supreme Court states at page 84: “Pay discrimination  does not continue to occur until the last allegedly discriminatory paycheck is received unless the employer has implemented a facially invalid payment system and continues to pay under that system or the unequal pay is part of, or a repetition of, a past employment violation.”  This footnote may indicate a strategy to use in these type cases,  if applicable.

The Chata opinion means that in a situation involving a pay discrimination that is beyond the 180 day limit will now need to be brought under Title VII and not under the TCHRA.  However, this could be problematic in situations involving the State of Texas or its entities because of the Eleventh Amendment to the U.S. Constitution problem of suing a state in federal court.  This should not be a problem in claims against political subdivisions which are not generally protected by the Eleventh Amendment and can be sued in federal court.

Mission Consolidated Independent School District v. Garcia, 2012 Tex. LEXIS 560 (Tex. 2012)

Age Discrimination- Texas Commission on Human Rights Act- School District employee was terminated and replaced by a woman three years older than the employee and the employee brought an age discrimination claim. The district filed a plea to jurisdiction. The district court and court of appeals denied it.  The Texas Supreme Court accepted the case.  The Supreme Court stated that this case raised a fundamental question of discrimination law: Can a plaintiff establish a prima facie case of age discrimination when undisputed evidence shows she was replaced by someone older? The specific issue was whether, under the Texas Commission on Human Rights Act (TCHRA), such a claimant is ever entitled to a presumption of age discrimination under the McDonnell Douglas burden-shifting framework. The Court answered the question with a big “no”. The Court held that the proof of a prima-facie case by a plaintiff was necessary to establish jurisdiction.  The Court explained:

This conclusion does not mean a plaintiff in Garcia’s position will be required to marshal evidence and prove her claim to satisfy this jurisdictional hurdle. While a plaintiff must plead the elements of her statutory cause of action—here the basic facts that make up the prima facie case—so that the court can determine whether she has sufficiently alleged a TCHRA violation, she will only be required to submit evidence if the defendant presents evidence negating one of those basic facts. And even then, the plaintiff’s burden of proof with respect to those jurisdictional facts must not ‘involve a significant inquiry into the substance of the claims.’  Cases may exist where the trial court decides, in the exercise of its broad discretion over these matters, that the inquiry is reaching too far into the substance of the claims and should therefore await a fuller development of the merits. Nevertheless, some inquiry is necessary because if TCHRA plaintiffs were allowed to stand on talismanic allegations alone, the constraining power of pleas to the jurisdiction would practically be eliminated.

The Court went further to hold that “in a true replacement case, an age-discrimination plaintiff relying on the McDonnell Douglas burden-shifting framework must show that he or she was (1) a member of the protected class under the TCHRA, (2) qualified for his or her employment position, (3) terminated by the employer, and (4) replaced by someone younger. This holding is not meant to suggest that a plaintiff who is replaced by someone older can never survive a plea to the jurisdiction and go on to prove age discrimination to the finder of fact; instead, the plaintiff will simply be limited to the traditional method of proof requiring “direct evidence of discriminatory animus.”

The Court seems to have departed from the Fifth Circuit (and several other federal circuits) in requiring that the plaintiff prove the “fourth element” of being replaced by someone younger. The Fifth Circuit does not always require the proof of being replaced by someone younger but will allow circumstantial proof that the plaintiff was “otherwise discharged because of age” to substitute as the “fourth element”.

The dissent argued that the Fifth Circuit test should be used.  However, the dissent does contain some useful language in that it finds that the other argument of the district was unavailing–  that even though the employee filed suit within 60 days of the issuance of the right to sue, the failure of the employee to actually serve the district within the 60 days was fatal.  The dissent states that the TCHRA does not require service within 60 days of the issuance of the right to sue.  It only requires that suit be filed within the 60 days and that due diligence be used to serve the defendant, even if done after the expiration of 60 days.

Safeshred, Inc. v. Martinez, 365 S.W.3d 655 (Tex. 2012)

Sabine Pilot Case- Punitive Damages- The Texas Supreme Court in Safeshred, Inc. v. Martinez (Tex. 2012) examined punitive damages in relation to a cause of action in Texas commonly referred to as a “Sabine Pilot” action.  This name comes from the case, Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985) in which the Supreme Court created a public policy cause of action that created an exception to the employment at will rule in Texas.  This cause of action made it illegal to terminate an employee for the sole reason that the employee refused to perform an act that was criminally illegal.  Up until the Safeshred case the Supreme Court had not ruled on whether punitive damages were available in such a case.

In Safeshred, the Court held that an employee could recover any reasonable tort damages, including punitive damages.  The Court held that punitive damages were an available remedy for an employee wrongfully discharged for refusal to commit an illegal act provided the employee could prove that the discharge involved malice.  The malice involved must be “actual malice” and something more than the intentional firing.  The firing must involve “substantial injury” and something “independent and qualitatively different from the compensable harms associated with the cause of action.”  To illustrate, the Court gave examples of  this type of malice:

•    where the employer circulates false or malicious rumors about the employee before or after the discharge or actively interferes with the employee’s ability to find other employment.
•    The Court referred to another case where a nursing home made the employee’s conduct look worse than it was before the state nursing board.
•   Another example is damage to the employee’s reputation or future employment prospects, which is a qualitatively different injury from the firing itself, and conscious indifference to a risk of that injury.
•     Harassment in connection with a wrongful firing.
•   Malice might exist when an employer knows the retaliatory firing is unlawful and does it anyway (e.g., in Texas Commission on Human Rights cases where an employer retaliated against and employee with specific intent or gross negligence regarding the employee’s right to be free from such practices.  Also, if employee demonstrates that the employer engaged in a discriminatory practice with malice or reckless indifference to the state protected rights of the employee).

In the Safeshred case, the Court specifically held that, “…malice could be shown in the Sabine Pilot case by evidence that Safeshred, in firing Martinez, consciously ignored a risk of some additional serious harm, such as interference with his future employment, harassment, or terminating his employment knowing the reason for doing so is unlawful.”

The Court specifically refused to consider the dangerousness of the specific illegal acts that Safeshred ordered him to perform in assessing punitive damages.  The Court held that “…the employer’s illegal directive to the employee (and any malice that might have accompanied that directive) cannot form the basis for a punitive damages award.”

The Court stated that a plaintiff may not bring a Sabine Pilot claim immediately after being asked to perform an illegal activity, but must first refuse and be fired.  In reviewing other cases, the Court confirmed that in retaliatory termination cases, the only malice relevant to allowing punitive damages is that surrounding the actual termination itself.

In examining the evidence of malice in the case, the Court stated that the only evidence relevant to the inquiry was that Safeshred designated Martinez as ineligible for rehire in its employment records and the reason given on an internal report for Martinez’s firing was that he abandoned his job, with no mention of the dispute over the safety regulations.  The Court held that this evidence was insufficient to support a firm conviction that Safeshred was consciously indifferent to a risk of interfering with Martinez’s future employment prospects or causing some other serious harm stemming from the firing itself.  Additionally, the Court mentioned that there was not evidence of harassment in connection with the firing or that the firing of Martinez was unlawful.  The Court stated that the Court of Appeals relied primarily on evidence that the managers knew that driving the unsafe truck loads was illegal.  Importantly for future cases, the Court said that: “…a malice finding based on Safeshred’s knowledge of illegality would require a showing that the company was aware that the law did not permit it to fire an employee for refusing to perform an illegal act, but did so anyway.”

Note:  This is the type of question that you must ask the manager that fired the employee, “when you fired my client, you knew, didn’t you, that it was illegal to fire my client for (whatever the alleged wrongful act was).”  Failure to ask this type question may doom your punitive damages and should always be a “starred and underlined” question in your list.

The Court further stated that in evaluating an employer’s actual malice in worker’s compensation retaliation cases, the Court has never looked to the employer’s conduct surrounding the workplace accident as proof of malice in the retaliation claim.  The same is true in whistleblower cases.  A whistleblower action involves both illegal conduct by the employer (which the employee reports) and a retaliatory employment action for blowing the whistle.  The Court only looks to the malice surrounding the employment action, but not in the underlying illegal act reported by the employee.

In examining the evidence, the Court found that the comments of Safeshred in the employment records of the employee did not constitute evidence of malice since there was no evidence that Safeshred subjectively knew or intended that the remarks in the employment records would interfere with the employee’s future employment or otherwise cause him harm.  Further, there was no evidence that Safeshred ever communicated the remarks in the record to other companies in the industry.
The Court reversed the punitive damages but not the actual damages.

Young Men’s Christian Association v. Garcia, 361 S.W.3d 123 (Tex.App.– El Paso 2011 nwh)

Arbitration- A Tiny Ray of Hope- The El Paso Court of Appeals has shined a tiny ray of hope into the darkness of arbitration for employees in employment disputes.  In this case, an employee brought discrimination and retaliatory discharge action against an employer.  The District Court denied the employer’s motion to compel arbitration by way of an alleged arbitration agreement which was part of the employee handbook.  The Court of Appeals examined the language of the dispute resolution policy and stated that “the dispute resolution policy is not a separate document and it does not merely reaffirm Garcia’s status as an at-will employee.  It is one of numerous policies found in a personnel policy manual which required employees to acknowledge that the manual is a ‘general suggestive guideline only’ and does not create an employment contract. The manual pointedly states that ‘this manual is not intended to create any contractual rights in favor of the employee of the [YMCA].’Significantly, it does not except the dispute resolution policy from the reach of the disclaimers.”  In a subsequent case, the El Paso court approved an arbitration agreement because the dispute resolution policy was a separate document and did not refer to the handbook.  Sun Fab Indus. Contr., Inc. v. Lujan, 361 S.W.3d 147 (Tex.App.– El Paso 2011 nwh).

Dallas County, Texas v. Logan, 359 S.W.3d 367 (Tex.App.– Dallas 2012)

Whistleblower Act- Former county deputy constable filed suit against county under Texas Whistleblower Act.  The county filed a plea to the jurisdiction on the grounds of governmental immunity and the district court denied the plea. On appeal the Court affirmed and held that the county judge to whom the deputy made a report of alleged violation of law was “part of a state or local governmental entity or of the federal government” as required by the Act.

Baker Hughes Oilfield Operations, Inc. v. Williams, 360 S.W.3d 15 (Tex.App.– Houston 2011)

Racial Discrimination-Texas Commission on Human Rights Act- In this case, an employee was allegedly discharged based on his race.  He filed a suit against his former employer, survived a motion for summary judgment and convinced a Houston jury that he was fired for discriminatory reasons.  However, he was unlucky and his appeal wound up in a panel of the Houston Court of Appeals containing two judges that reversed his case and, in essence, ruled that the trial judge, a jury, and a dissenting judge of the panel were not reasonable people when it came to this verdict.  It is one of those opinions that no matter the strength of the argument of the appellant, the Court knocks each one of them down.  As the dissenting judge said:
pretext discrimination cases inherently involve a question of credibility because they require the determination of whether the stated reason for the adverse action is true or false – in other words, ‘the defendant’s mens rea.’ Whether the defendant was in fact motivated by discrimination is of course for the finder of fact to decide.’ Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). For this reason, a jury verdict in a pretext discrimination case should rarely be overturned. See id. At 155, 120 S.Ct. at 2112 (absent conclusive determination that discrimination could not be true motivation, ‘the ultimate question of liability ordinarily should not be taken from the jury’ once plaintiff has introduced evidence establishing prima facie case and evidence that employer’s proferred explanation for adverse action was false).

In Re Misty Jordan, Relator, 364 S.W.3d 425 (Tex.App.– Dallas 2012)

Discovery-Request for Production of Computer Hard Drive- Former employee brought suit against employer for hostile work environment based on employee’s observation of pornographic content on work computers that was offensive to her. The district court, in response to a request for production of employee’s hard drive on her personal home computer, ordered employee to produce the drive to allow the defendant to search her computer for evidence of pornography and other specific purposes. There was no allegation that the employee was engaging in pornography anywhere.  Employee petitioned Court of Appeals for a writ of mandamus challenging the order.  The Court of Appeals held that the order compelling employee to produce the hard of was an abuse of discretion. The Court relied on In Re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009), in which the Supreme Court set forth the procedures to be followed when a party seeks production of another party’s computer hard drives.  As part of those procedures the party seeking production must make a specific request for the information and specify the form of production.  The Court of Appeals stated that in this case, the defendant merely asked for the hard drives without informing the plaintiff of the exact nature of the information sought, the particular characteristics of the electronic storage devices involved, the familiarity of its experts with those characteristics, or a reasonable likelihood that the proposed search methodology would yield the information sought.  The Court also stated that the trial court should consider, at the very least, a protective order addressing the matters that might be revealed.  Because of this ruling, the Court refused to consider the employee’s argument regarding the relevance of the information sought to be discovered.  This appears to have been an attempt by the defendant to not only go on a “fishing expedition” but to dredge up the bottom sludge of the fishing hole.  If you think about the possible precedent of this attempt, if the Court had allowed it, a party could argue that it be allowed to inspect all of the other side’s property, dwellings, and past dealings just to see what damaging information they could find.

The Department of Labor has released its new publication entitled “The Employee’s Guide to the Family and Medical Leave Act“.  If you will click on the highlighted publication name in the previous sentence, it will take you to the website where you can download a PDF version of the guide.  The guide is a plain English simplified explanation of the basic benefits and requirements of the FMLA.  You can print the publication for your use.  It has several flow charts that will help explain the protections and workings of the FMLA.  Should you have further questions, feel free to contact me.  You can find the telephone number at our website.

When you interview for a job, under the Americans with Disabilities Act (ADA) an employer is not supposed to ask verbal or written questions that would tend to expose an impairment or disability.  The only questions they can ask is whether you can perform the essential functions of the job, if they ask these questions of all applicants.  However, they can offer you a job conditioned on you passing a physical, if all other applicants in the same job category are subjected to such an examination regardless of disability.  If the medical examination screens out the disabled, then the employer must demonstrate that the examination is job related and consistent with business necessity.   If the individual passes the exam then they must be hired.

After you are hired and thereafter, under the ADA, an employer may require you to take a medical examination or inquiry that is job related and consistent with business necessity.  Supervisors and managers may be informed regarding necessary restrictions on work or duties of an employee and any necessary accommodations to allow the person to perform the essential functions of the job.  Information collected from the examinations must be maintained in separate files from the employee’s general personnel files.

Employers can require an employee to undergo a medical fitness exam prior to returning to work from an illness or injury that is linked to a physical ability which might impact the employees ability to perform the functions of the job safely.  However, the inquiry into a medical condition, without a basis that it could impact the performance of the specific job involved, is against the law.  The exam is limited to the relevant condition for which the employee was off work.

Under the FMLA, the employer can require your medical provider to review a list of the essential functions of your job and certify that you are cleared to return to perform these functions.  Your employer must inform you of your duty to secure a return to work certification when you take medical leave under the FMLA.  This requirement can be satisfied by stating it in the employee handbook.  Failure to obtain the certification can shield the employer from the duty to allow you to return to work under the FMLA.  You can’t just blame it on the doctor for not sending the certification.  Ultimately, it is your responsibility to obtain the certification from the doctor.  So, in this circumstance the doctor can get you fired and just blaming the doctor still gets you fired.

Under the FMLA, the company cannot require you to get another opinion or use another doctor.  The company is stuck with your doctor’s medical certification.  However, after they let you return to work, under the ADA, the company can require another medical exam if they have reasonable legitimate safety concerns as to your ability to perform the job.

Under the FMLA, an employer cannot require a fitness for duty certification after each instance of intermittent leave.  The regulations states, “If an employer is concerned that an employee’s intermittent or reduced-schedule leave, that occurs more often than once in a 30-day period, presents safety concerns, the employer may require the employee, once returned to work from FMLA leave, to submit to a medical exam as long as the exam is job-related and consistent with business necessity as required by the ADA…”.

The Texas Supreme Court has given important guidance in the area of punitive damages in employment cases.  Punitive or exemplary damages are damages awarded in civil cases in order to punish bad behavior or make an example to others as to what can happen when the bad behavior is exposed.

The Texas Supreme Court in Safeshred, Inc. v. Martinez (Tex. 2012) examined punitive damages in relation to a cause of action in Texas commonly referred to as a “Sabine Pilot” action.  This name comes from the case, Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985) in which the Supreme Court created a public policy cause of action that created an exception to the employment at will rule in Texas.  This cause of action made it illegal to terminate an employee for the sole reason that the employee refused to perform an act that was criminally illegal.  Up until the Safeshred case the Supreme Court had not ruled on whether punitive damages were available in such a case.

In Safeshred, the Court held that an employee could recover any reasonable tort damages, including punitive damages.  The Court held that punitive damages were an available remedy for an employee wrongfully discharged for refusal to commit an illegal act provided the employee could prove that the discharge involved malice.  The malice involved must be “actual malice” and something more than the intentional firing.  The firing must involve “substantial injury” and something “independent and qualitatively different from the compensable harms associated with the cause of action.”  To illustrate, the Court gave examples of  this type of malice:

•    where the employer circulates false or malicious rumors about the employee before or after the discharge or actively interferes with the employee’s ability to find other employment.
•    The Court referred to another case where a nursing home made the employee’s conduct look worse than it was before the state nursing board.
•    Another example is damage to the employee’s reputation or future employment prospects, which is a qualitatively different injury from the firing itself, and conscious indifference to a risk of    that injury.
•    Harassment in connection with a wrongful firing.
•    Malice might exist when an employer knows the retaliatory firing is unlawful and does it anyway (e.g., in Texas Commission on Human Rights cases where an employer retaliated against        employee with specific intent or gross negligence regarding the employee’s right to be free from such practices.  Also, if employee demonstrates that the employer engaged in a discriminatory practice with malice or reckless indifference to the state protected rights of the employee).

In the Safeshred case, the Court specifically held that, “…malice could be shown in the Sabine Pilot case by evidence that Safeshred, in firing Martinez, consciously ignored a risk of some additional serious harm, such as interference with his future employment, harassment, or terminating his employment knowing the reason for doing so is unlawful.”

The Court specifically refused to consider the dangerousness of the specific illegal acts that Safeshred ordered him to perform in assessing punitive damages.  The Court held that “…the employer’s illegal directive to the employee (and any malice that might have accompanied that directive) cannot form the basis for a punitive damages award.”

The Court stated that a plaintiff may not bring a Sabine Pilot claim immediately after being asked to perform an illegal activity, but must first refuse and be fired.  In reviewing other cases, the Court confirmed that in retaliatory termination cases, the only malice relevant to allowing punitive damages is that surrounding the actual termination itself.

In examining the evidence of malice in the case, the Court stated that the only evidence relevant to the inquiry was that Safeshred designated Martinez as ineligible for rehire in its employment records and the reason given on an internal report for Martinez’s firing was that he abandoned his job, with no mention of the dispute over the safety regulations.  The Court held that this evidence was insufficient to support a firm conviction that Safeshred was consciously indifferent to a risk of interfering with Martinez’s future employment prospects or causing some other serious harm stemming from the firing itself.  Additionally, the Court mentioned that there was not evidence of harassment in connection with the firing or that the firing of Martinez was unlawful.  The Court stated that the Court of Appeals relied primarily on evidence that the managers knew that driving the unsafe truck loads was illegal.  Importantly for future cases, the Court said that:

“…a malice finding based on Safeshred’s knowledge of illegality would require a showing that the company was aware that the law did not permit it to fire an employee for refusing to perform    an illegal act, but did so anyway.”(emphasis added)

Note:  This is the type of question that you must ask the manager that fired the employee, “when you fired my client, you knew, didn’t you, that it was illegal to fire my client for (whatever the alleged wrongful act was).”  Failure to ask this type question may doom your punitive damages and should always be a “starred and underlined” question in your list.

The Court further stated that in evaluating an employer’s actual malice in worker’s compensation retaliation cases, the Court has never looked to the employer’s conduct surrounding the workplace accident as proof of malice in the retaliation claim.  The same is true in whistleblower cases.  A whistleblower action involves both illegal conduct by the employer (which the employee reports) and a retaliatory employment action for blowing the whistle.  The Court only looks to the malice surrounding the employment action, but not in the underlying illegal act reported by the employee.

In examining the evidence, the Court found that the comments of Safeshred in the employment records of the employee did not constitute evidence of malice since there was no evidence that Safeshred subjectively knew or intended that the remarks in the employment records would interfere with the employee’s future employment or otherwise cause him harm.  Further, there was no evidence that Safeshred ever communicated the remarks in the record to other companies in the industry.

The Court reversed the punitive damages but not the actual damages.

The Equal Employment Opportunity Commission (EEOC) recently amended their regulations in order to clarify their interpretation of the U.S. Supreme Court case of Smith v. City of Jackson, Mar. 31, 2008. The Supreme Court ruled that disparate-impact claims are cognizable under the Age Discrimination in Employment Act (‘‘ADEA’’)  but that liability is precluded when the impact
is attributable to a reasonable factor other than age (RFOA). The EEOC proposed rules interpreting the application of the RFOA defense and, after receiving comments from the public, announced the following rule effective April 30, 2012.  While the EEOC interpretative rules are not binding on the courts, they are normally given “presumptive weight” by the courts in cases requiring interpretation of a law. The Final Rule provides considerations for EEOC investigators to use in determining whether an employment practice is based on a RFOA. Because the EEOC has rulemaking authority under the ADEA, courts are likely to defer to the Final Rule when evaluating the RFOA defense.   The new rule on RFOA reads as follows:

In § 1625.7, revise paragraphs (b) through (e) to read as follows: § 1625.7 Differentiations based on reasonable factors other than age (RFOA).

(b) When an employment practice uses age as a limiting criterion, the defense that the practice is justified by a reasonable factor other than age is unavailable.

(c) Any employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a ‘‘reasonable factor other than age.’’ An individual challenging the allegedly unlawful practice is responsible for isolating and identifying the specific employment practice that allegedly causes any observed statistical disparities.

(d) Whenever the ‘‘reasonable factors other than age’’ defense is raised, the employer bears the burdens of production and persuasion to demonstrate the defense. The ‘‘reasonable factors other than age’’ provision is not available as a defense to a claim of disparate treatment.

(e)(1) A reasonable factor other than age 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 under like circumstances. Whether a differentiation is based on reasonable factors other than age must be decided on the basis of all the particular facts and circumstances surrounding each individual situation. To establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known, to the employer.

(2) Considerations that are relevant to whether a practice is based on a reasonable factor other than age include, but are not limited to:

(i) The extent to which the factor is related to the employer’s stated business purpose;

(ii) 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;

(iii) 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;

(iv) The extent to which the employer assessed the adverse impact of its employment practice on older workers; and

(v) 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.

(3) No specific consideration or combination of considerations need be present for a differentiation to be based on reasonable factors other than age. Nor does the presence of one of these considerations automatically establish the defense.