The EEOC has revised its rule on the “reasonable factors other than age” (RFOA) defense to “disparate impact” discrimination claims under the ADEA (Age Discrimination in Employment Act of 1967). The ADEA prohibits employment discrimination against people who are 40 years of age or older. In the context of the ADEA, disparate impact discrimination is an employment policy or practice that, while neutral on its face, adversely impacts individuals in the protected age group more than younger ones.
Generally, the final rule explains that an employment practice that adversely affects older individuals is discriminatory unless the practice is justified by reasonable factors other than age (RFOA). The rule provides a list of considerations to help determine if an employment practice is “reasonable” and whether a factor is “other than age.” These include:
- the purpose of the challenged practice,
- how the non-age factor was defined and applied,
- supervisors’ training and limits on their discretion,
- whether the employer assessed the adverse impact on older workers, and
- the degree of harm to older workers and the steps the employer took to reduce the harm.
The new ADEA regulations are consistent with current Supreme Court case law and respond to public concern in recent years that older workers frequently were unfairly laid off during downsizing, had particular problems regaining employment, and were barred from employment by common employment practices unrelated to job performance.
The EEOC’s final rule applies to private employers with 20 or more employees, state and local government employers, employment agencies, and labor organizations. It is effective April 30, 2012.
You can read the Final Rule here. To view the EEOC’s Q & A’s explaining the rule, click here.