The Equal Employment Opportunity Commission issued its final regulations relating to the Age Discrimination in Employment Act (ADEA) and an important defense available to employers under the ADEA.

The ADEA prohibits discrimination against individuals who are 40 years of age or older.

The final regulations discuss a defense available to employers facing “disparate impact” claims. A disparate impact claim arises when an employer’s policies that are neutral on their face, such as certain screening tests, harm older workers more than younger workers. An employer can defend itself against a disparate impact claim if the employer can show that the policy or practice is based on a “reasonable factor other than age” (RFOA).

The final regulations explain the meaning of the RFOA defense to employers. According to the EEOC, an employment practice is based on an RFOA if it is “reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”

The final regulations and a Questions and Answers document prepared by the EEOC discuss how this test is applied, including factors to be considered and examples.

Author: Gail Cecchettini Whaley

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