The Equal Employment Opportunity Commission has issued a notice of proposed rulemaking regarding the definition of “Reasonable Factors Other than Age” (RFOA) under the Age Discrimination in Employment Act (ADEA). The proposed rule attempts to address issues raised by recent cases decided by the U.S. Supreme Court, namely Smith v. City of Jackson and Meacham v. Knolls Atomic Power Lab.
In Smith, the Supreme Court held that the RFOA test is the appropriate standard for determining whether a practice that disproportionately affects older individuals violates the ADEA. The RFOA provision of the ADEA provides that actions that have an adverse impact on older individuals will not violate the statute as long as the adverse impact “is based on reasonable factors other than age.”
In Meacham, the Supreme Court held that an employer defending against a claim of disparate-impact age discrimination bears the burden of both producing and proving reasonable factors other than age that caused the disparate impact. In doing so, the Court overruled the employer’s argument (and the previous decision by the 2nd Circuit Court of Appeals) that plaintiffs in an ADEA case have the burden of showing that the adverse employment action was not based on reasonable factors other than age. The Court held that, since RFOA is an affirmative defense, it is the employer’s burden to prove that RFOA existed, not the employee’s burden to show that RFOA did not exist.
In light of these decisions, the EEOC proposes to revise its regulations to clarify the scope of the RFOA defense. Specifically, the proposed revision:
- explains that a “reasonable factor” is one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances and is a factor that an employer exercising reasonable care to avoid limiting the employment opportunities of older persons would use;
- explains that whether a particular employment practice is based on reasonable factors other than age turns on the facts and circumstances of each particular situation and whether the employer acted prudently in light of those facts;
- provides a list of specific factors to be considered in determining whether a particular employment practice was reasonable, including: 1) whether the employment practice and the manner of its implementation are common business practices; 2) the extent to which the alleged reasonable factor is related to the employer’s stated business goal; 3) the extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately; 4) the extent to which the employer took steps to assess the adverse impact of its employment practice on older workers; 5) the severity of harm to older individuals; and 6) whether other options were available to the employer and the reasons the employer selected the option it chose;
- provides that the RFOA defense may only be used if the practice was truly based on an objective non-age factor;
- sets forth the following factors relevant to determining whether a factor is an objective non-age factor: 1) the extent to which the employer gave supervisors unchecked discretion to assess employees subjectively; 2) the extent to which supervisors were asked to evaluate employee based on factors known to be age-based stereotypes; and 3) the extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.
Before adopting final regulations, the EEOC will consider comments on the proposed rule until April 19, 2010. You may submit comments to the EEOC through the Federal eRulemaking Portal at http://www.regulations.gov; by faxing your comments to (202) 663-4114; or by mail addressed as follows:
Stephen Llewellyn, Executive Officer
Executive Secretariat, Equal Employment Opportunity Commission
U.S. Equal Employment Opportunity Commission
131 M Street, N.E.
Washington, DC 20507