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Labor: EEOC issues final rule on reasonable factors other than age under the ADEA

The burden is on the employer to prove this defense against a disparate impact claim

On March 30, the Equal Employment Opportunity Commission (EEOC) published its final rule, meant to clarify the “reasonable factors other than age” (RFOA) defense available under the Age Discrimination in Employment Act (ADEA) (foreshadowed by InsideCounsel). The clarification, however, invites more questions, as it imposes a highly fact-intensive analysis that does little to assist employers in complying with the ADEA.

The ADEA protects employees who are 40 years and older by prohibiting discrimination based on age. In Smith v. City of Jackson, the Supreme Court recognized the validity of a disparate impact claim under the ADEA. A disparate impact claim does not require a showing of intentional discrimination, but rather is based on an employer’s adoption of a facially neutral policy that adversely affects a protected category of workers—in this case, older workers. In Smith, the high court also recognized a defense to such a claim when the adverse impact is based on “reasonable factors other than age.” The employer has the burden to prove the defense.

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Wendy Voss

Wendy K. Voss is a partner with the Wilmington, Del. law firm of Potter Anderson & Corroon LLP. She focuses her practice in the areas...

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Contributing Author

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Lindsay Clizbe

Lindsay O. Clizbe is an associate with the firm and defends employers in employment-related lawsuits brought in the Delaware state and federal courts. She also...

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