The Equal Employment Opportunity Commission (EEOC) recently published a final rule, which takes effect on April 29, 2012, amending the existing Age Discrimination in Employment Act (ADEA) regulations regarding disparate impact claims and the "reasonable factors other than age" (RFOA) defense. The final rule incorporates the holdings of two Supreme Court decisions under the ADEA: Smith v. Jackson, extending the ADEA to disparate impact claims; and Meacham v. Knolls Atomic Power Lab., requiring employers to meet the burden of persuasion and production for the affirmative defense based on reasonable factors other than age.
The ADEA prohibits failing or refusing to hire, discharging, or otherwise discriminating against individuals who are 40 years of age or older because of their age. An affirmative defense is available to employers, however, when their actions are based on reasonable factors other than age. The amended regulations require employers to bear the burden of demonstrating the applicability of the RFOA defense: "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." The newly-published rule provides a list of relevant considerations for determining whether an employer's practice is based on reasonable factors other than age.
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