EEOC Issues Rule Clarifying ‘Reasonable Factors Other Than Age’

The Equal Employment Opportunity Commission (EEOC) has issued a new rule aimed at clarifying when the “reasonable factors other than age” (RFOA) defense can be used in claims filed under the Age Discrimination in Employment Act (ADEA). The rule is to be published in the Federal Register on March 30.

A statement from the EEOC says the final rule clarifies that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals unless the employer can show that the policy or practice is based on an RFOA.

The EEOC held public meetings on age discrimination and older worker unemployment in 2009 and 2010 because of concerns that older workers frequently were unfairly laid off during downsizing, had particular problems regaining employment after losing their jobs, and were barred from employment by some common employment practices that were unrelated to job performance.

The EEOC says the new rule responds to two U.S. Supreme Court decisions in which the court criticized the part of the ADEA regulations that said that if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.”

A question-and-answer document from the EEOC says that the Supreme Court said that in an ADEA disparate impact case, the employer didn’t have to prove business necessity; it need prove only that the practice was based on an RFOA, a defense that’s easier to prove than business necessity.

The EEOC says the new rule “makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity.” Additionally, “it explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA.”

The rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations.

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