On April 30, 2012, a final rule on “Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act” promulgated by the Equal Employment Opportunity Commission (EEOC) became effective. 29 C.F.R. § 1625.7. This rule does not set new standards for asserting a “reasonable factors other than age” (RFOA) defense, but codifies the holdings of Supreme Court decisions, including Smith v. City of Jackson, 544 U.S. 228 (2005) and Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008). The rule also provides guidance on the application of the RFOA defense, offering a list of factors that can be considered relevant to whether an employment practice is based on RFOA.
An employer’s reliance on RFOA is an affirmative defense to liability for disparate-impact discrimination claims under the Age Discrimination in Employment Act (ADEA). Cases of “disparate impact” discrimination are claims that an employer’s use of a facially neutral policy has a greater negative impact on a protected classification—as relevant here, older workers; proof of an age-related motivation is not required to prevail under the statute. The RFOA defense asserts that the negative impact on older workers stems from reasonable factors other than age.